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 CC TV 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, PIL No. 33 of 2021, 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., WP (PIL) No. 12 of 2017, 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, W.P.(C) No.13403 of 2015, 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

OP. ED.SCC Journal Section Archives

— Indian Supreme Court in the process of transition — Position till early 1970’s and after — Concepts used to avoid change stated — Activist judges — Contribution of Justice Bhagwati — Some highlights of transformation of Indian jurisprudence at the instance of Justice Bhagwati in the judicial process — PIL is a major strategy in the area of legal aid to the poor — Greatest Contribution of Chief Justice Bhagwati — Decisions on Legal Aid — Observations of Justice Bhagwati in Hussainara Khatoon (1980) and Suk Das (1986) — Major thrusts gave to PIL by Justice Bhagwati briefly examined — Observations in Judges transfer case (1981) quoted — Letter petitions in PIL — Contribution of Justice Bhagwati in PIL is certainly enormous — Judicial employment and Human Rights with social justice — Inter-relation of Parts III and IV of the Constitution of India — Case laws referred to and discussed in this regard — Facets of Art. 21 — Case laws cited — Revolutionary interpretation to Art. 21 by Justice Bhagwati — Judicial Reforms and People’s participation — Lok Adalats — Contribution of Justice Bhagwati — Concluding note — Bhagwati era will find a special place for its signal contribution to human rights development and judicial creativity in the cause of social justice

The Indian Supreme Court is in the process of transition. Till early 1970s the Court with few honourable exceptions, acted as an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovations in the use of judicial power to promote social change under the Republican Constitution. The natural inclination of lawyers and Judges was to look for precedents in the “Mother Country” and to interpret a revolutionary document like the Constitution of India in the light of a socio-economic philosophy alien to our freedom movement and the aspirations of a liberated people. Concepts such as “Rule of Law”, “Judicial Restraint”, “Separation of Powers”, “Supremacy of Fundamental Rights over Directive Principles”, “Independence of Judiciary”, “Contempt of Court” and “Certainty in Law” were used conveniently to avoid change wherever possible, delay it whenever inevitable and dilute it as far as practicable. The resultant legal culture was not very different from those of pre-Independence days.

Read more..


Note: This article was first published in Supreme Court Cases Journal  (1987) 1 SCC J-1. It has been reproduced with the kind permission of Eastern Book Company.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Mithal and Saurabh Lavania, JJ., dismissed a Public Interest Litigation.

The petitioner in Public Interest had sought quashing of letter of the Chief Engineer (Purchase) of U.P. Jal Nigam requesting  Crown Agents (India) Pvt. Ltd. to inspect Rashmi Metaliks Ltd., Kolkata and issuance of mandamus directing respondent 2 and 3 not to permit re-inspection of Rashmi Metaliks Limited, Kolkata.

The Court while explaining the purpose of PIL said that normal rule was that a person, who suffered a legal injury or whose legal right was infringed, alone had locus standi to invoke the writ jurisdiction to avoid miscarriage of justice but the said common rule of locus standi stood relaxed where the grievance was raised before the Court on behalf of poor, deprived, illiterate or the disabled persons, who cannot approach the Court independently for redressal of the legal wrong or the injury caused to them on account of violation of any constitutional or legal right. However, the relaxation was misused by unscrupulous persons seeking cheap publicity quoting the judgment of Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402.

The Court further observed that in the present petition the petitioner had not mentioned anything substantial other than he was a Lawyer and was involved in social work, thus not fulfilling the conditions of the rule laid down in the above case. The Court further stated that the petitioner in filing this petition in Public Interest had not even disclosed that he was filing this petition on behalf of such disadvantageous persons or that injustice was meted out to a large number of people and therefore it has become necessary for him to come forward on their behalf.

The Court while dismissing the PIL held that the petitioner was not a person, who had any credentials to move in Public Interest. Simply on the allegation that he was a Lawyer and a person involved in social work without disclosing his credentials and in the absence of the fact that the petition had been preferred in the interest of justice for large number of downtrodden persons who are unable to approach the Courts of Law, the petitioner was not entitled to maintain this petition in the public interest that too in a matter which does not involve basic human rights.

The Court, however, mentioned that U.P. Jal Nigam was not directly involved in the purchase of any material from any firm, rather it awarded contracts on a turn-key basis and it was the contractor who made purchases of the material from amongst firms prescribed by the U. P. Jal Nigam, provided there was otherwise no legal impediment thus letter of the Chief Engineer (Purchase) on record, since the purchases from the aforesaid firm would be taken subsequent to its certification by the inspecting agency, thus interference by the Court was not required.[Narendra Kumar Yadav v. State of U.P., 2020 SCC OnLine All 1395, decided on 05-11-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Shashi Kant Gupta and Shamim Ahmed, JJ., addressed whether public Interest litigation in service matters are maintainable.

Instant Public Interest Litigation was filed by the petitioner, who is an elected village Pradhan of Village Panchayat and further claimed that he is also doing social work for public welfare and public money.

Purpose of filing the petition was to secure the public money and to cancel the appointment of respondent 6 as Assistant Teacher in Junior High School which was obtained by illegal mode.

Analysis and Decision

Upon perusal of the averments made in the public interest litigation and documents appended thereto, petitioner sought direction cancelling the appointment of respondent 6 as Assistant Teacher and directing the State to initiate recovery proceedings against the respondent 6.

Court noted that when maintainability of the present public interest litigation, in-service matters, was raised by us no suitable reply was given by the counsel for the petitioner. The preliminary objection regarding maintainability of the instant PIL was raised by the Standing Counsel and submitted that in-service matter PIL is no longer res-integra, lacks bonafide and rather it is a proxy petition.

In view of the above-stated submission of the respondents, the Court considered it appropriate to take the question of maintainability of the Public Interest Litigation as a preliminary issue.

In the Supreme Court decision of Duryodhan Sahu v. Jitendra Kumar Mishra, (1998) 7 SCC 273, Court dealt with an issue as to whether a Public Interest Writ Petition, at the instance of a stranger, could be entertained by the Administrative tribunal and held that in service matter PIL should not be entertained, the inflow of so-called PILs involving service matter continues unabated in the Courts and strangely are entertained.

Orissa Administrative Tribunal’s decision in Amitarani Khnutia v. State of Orissa, 1996 (1) OLR (CSR)-2, the tribunal after considering the provisions of the Act held that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal.

The following passage from the above judgement is relevant:

“…A reading of the aforesaid provisions would mean that an application for redressal of grievances could be filed only by a ‘person aggrieved’ within the meaning of the Act.
Tribunals are constituted under Article 323 A of the Constitution of India. The above Article empowers the Parliament to enact law providing for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other authority within the territory of India or under the control of the Government and such law shall specify the jurisdiction, powers and authority which may be exercised by each of the said Tribunals. Thus, it follows that Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well-defined in the Act. It does not enjoy any plenary power.”

High Court agreeing with the above reasoning answered the first question in negative and held that the Administrative Tribunal constituted under the Act cannot entertain public interest litigation at the instance of a total stranger.

In the Supreme Court’s decision of Dr D.B. Singh v. Union of India, (2004) 3 SCC 363, Bench decided that the case on the same lines and held that PIL is not maintainable in service matters.

Further, the Court also relied on the decision of Neetu v. State of Punjab, (2007) 10 SCC 614, the Supreme Court held as follows:-

“The scope of entertaining a petition styled as public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this court in various cases. Referring to the decisions in Dr Duryodhan Sahu  v. Jitendra Kumar Mishra, reported in (1998) 7 SCC 273 and Ashok Kumar Pandey v. State of W.B. in (2004) 3 SCC 349, cited supra, the Supreme Court held that PIL in service matters has been held as not maintainable.”

Relying on the above-referred Supreme decisions, Court deemed it necessary to extract Article 141 of the Constitution of India, which reads as follows:

141. Law declared by Supreme Court to be binding on all courts — The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

Hence, the Court held that when the PIL is not maintainable in service matters and time and again the same has been reiterated by the Supreme Court in series of decisions, the public Interest Litigation is not maintainable in law and the same is dismissed accordingly. [Jagdish Prasad v. State of U.P., 2020 SCC OnLine All 1411,  decided on 24-08-2020]

Hot Off The PressNews

As reported by PTI, the Division Bench of D.N. Patel, CJ and Prateek Jalan addressed an issue wherein Delhi Labour Union sought that women be provided special casual or paid leave as menstruation is intrinsically related to human dignity and by not providing separate toilet facilities or breaks to maintain hygiene, the authorities are depriving the employees of their human dignity.

In the PIL, it was sought that 4 days leave be granted to all classes of women employees and to pay overtime allowance to menstruating women employees if they opt to work during that period.

Various other reliefs such as period rest, clean and separate toilets along with the provision of sanitary napkins be provided to women during their menstruation period.

About the daily wage, muster roll, contractual and outsourced workers, the plea had said they also face severe difficulties during menstruation as their work places lack adequate sanitation and clean toilets and they are not given the facility of earned or sick leave by their employers. [PTI]

In view of the above, Court directed Centre and Delhi Government to treat as a representation a PIL seeking grant of paid leave to women employees during menstruation.


[Source: PTI]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has, “in order to allay all apprehensions and only as a confidence building measure”, directed that the security to the victim’s family and the witnesses in the Hathras Gang Rape case shall be provided by the CRPF within a week.


BACKGROUND OF THE CASE


The case pertains to the brutal gang-rape and assault of a 19-year¬old girl, resident of Hathras village in Uttar Pradesh. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her last and she was cremated in the middle of the night without the presence of her family members. Considering the manner in which the entire incident had taken place, the petitioners contended that a fair investigation would be possible only if the matter is entrusted to an independent agency.

It was prayed that

  1. if need arises, the case be transferred to the Central Bureau of Investigation or SIT be formed to investigate the matter.
  2. a sitting or retired Supreme Court Judge or High Court Judge be appointed to look into the matter.
  3. the case be transferred from Hathras, Uttar Pradesh to Delhi.

Concerns were also raised by Senior Advocate Indira Jaising with regard to the adequate protection being provided to the victim’s family members and the witnesses. An affidavit filed by the Home Department, Uttar Pradesh on October 14, 2020 regarding the same which stated:

  • The parents, two brothers, one sister¬in-law and grandmother of the victim who are residing at village Chandpa, District Hathras, Uttar Pradesh have been provided protection under a three-fold protection mechanism through

(a) Armed Constabulary Component,

(b) Civil Police Component and

(c) Installation of CCTV cameras/lights.

  • The investigation by the CBI would be conducted under the supervision of the Court in a time bound manner.

The Director General of Police, State of Uttar Pradesh also filed an affidavit indicating   that   the   State   Government   itself   has   sought investigation by the CBI to be conducted under the supervision of the Court and on 10.10.2020 the CBI accepted the request of the State and has started investigation in respect of the crime, on 11.10.2020.


WHAT THE SUPREME COURT SAID


On the apprehension that the Uttar Pradesh Police will not conduct a proper and fair investigation

Considering the abovementioned facts, the Court noticed that the undisputed fact is that the investigation has in fact been entrusted  by the State Government itself to the CBI on 10.10.2020 and the CBI has started investigation in respect of the crime on 11.10.2020. Therefore, the apprehensions expressed by the petitioners/applicants that there would be no proper investigation if the Uttar Pradesh Police conducted the same would not remain open for consideration at this stage.

On Supreme Court Monitored Investigation

The Court further noticed that the Allahabad High Court has adequately delved into the aspects relating to the case to secure fair investigation and has also secured the presence of the father, mother, brother and sister-in-law of the victim and appropriate orders are being passed, including securing reports from various quarters. Hence, the Court did not find it necessary “to divest the High Court of the proceedings and take upon this Court to monitor the proceedings/investigation.”

Further, the incident having occurred within the jurisdiction of that High Court and all particulars being  available, it would be appropriate for the High Court to proceed to monitor the investigation in the manner in which it would desire.

“In that view, it would be open for the writ petitioners/applicants herein to seek to intervene in the matter before the High Court subject to consideration of such request by the High Court and if it finds the need to take into consideration the contentions to be urged by the petitioners/applicants   in that regard.”

It hence, directed that the CBI shall report to the High Court in the  manner as would be directed by the High Court through its orders from time to time.

On security to the victim’s family and witnesses

The Court noticed that though steps have been taken by the State Government to make adequate arrangement for security to the victim’s family and witnesses, however, in a matter of the present nature it is necessary to address the normal perception and pessimism which cannot be said as being without justification. Hence,

“without casting any aspersions on the security personnel of the State Police; in order to allay all apprehensions and only as a confidence building measure, we find it appropriate to direct that the security to the victim’s family and the witnesses shall be provided by the CRPF within a week from today.”

On transfer of case to Delhi

As indicated by advocate Seema Kushwaha, appearing for the victim’s family indicated that the need   for transfer would arise after the investigation is complete, the Court said that

“… it would be appropriate for investigating agency to complete the investigation and in any event since the local police have been divested of the investigation and the CBI is carrying out the investigation there would be no room for apprehensions at this stage. However, the issue as to whether the trial of the case is to be transferred is a matter which is kept open to be considered if need arises in future.”

On the name and relationship of the family members with the victim being depicted in the High Court’s order

Since it is a requirement of law to avoid such disclosure, the Supreme Court requested the High Court to delete the same and also morph the same in the digital records and avoid indication of such contents in future.

[Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874, decided on 27.10.2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Rajan Roy and Jaspreet Singh, JJ., while taking suo motu cognizance of an extremely sensitive and important matter reminded itself of Mahatma Gandhi’s words and stated that,

This is a time to strengthen our resolve to live up to the ideas which “Bapu” stood for, but, unfortunately, ground realities are very different from the high values propagated and practiced by the Father of our Nation.

Bench stated that the matter touches upon the basic human/fundamental rights of the citizens of the country and residents based on certain newspaper items and programs shown in the media, according to which a young 19-year-old girl in Hathras was subjected to gang rape.

The perpetrators had broken her bones and mutilated her tongue.

The victim fought for her life for almost 2 weeks but ultimately she succumbed to death on 29-09-2020.

Court stated that the incidents which happened after the victim’s death leading up to her cremation have shocked their conscience.

In view of the above, the bench has taken suo mou cognizance of the matter.

Cremation performed forcibly and without consent of family members

As per the media reports, the dead body of the victim was taken to her native village but the Court was pained and shocked to note that the same was not handed over to the family members and the body of the victim was cremated with the help of some other persons.

The family members kept demanding for the body and informed that as per their traditions, the cremation cannot be taken place after sunset, yet the District Authorities got the cremation performed contrary to the traditions.

Allegation of High Handedness by State Authorities

Court added that the matter is of grave importance as it involves an allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights of both the deceased and her family.

Court in view of the present matter, referred to the decision of Supreme Court in Parmanand Katara v. Union of India, (1995) 3 SCC 248, wherein the court considered various facets of Right to Life enshrined under Article 21 of the Constitution of India.

“…right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death

Bench also quoted Oscar Wilde who said,

“Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace.”

Bombay High Court’s decision in Pradeep Gandhy v. State of Maharashtra; 2020 SCC Online Bombay 662 was also referred to wherein,

“Right to a decent burial commensurate with the dignity of the individual was reiterated as a recognized facet of the Right to life guaranteed under Article 21 of the Constitution.”

Issues to be examined:

  • Whether there has been a gross violation of the fundamental rights of the deceased victim and the family members of the victim?
  • Whether the State Authorities have acted oppressively high handedly and illegally to violate such rights as if it is found to be so, then, this would be a case where accountability will not only have to be fixed but for future guidance also stern action would be required.
  • Whether the economic and social status of the deceased’s family has been taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights?

Rights available under the Constitution are to be protected

Rights of the individual citizens in the Country and State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount.

Court also takes cognizance of the matter that the seat of governance being at Lucknow and the High Police Officials posted in the office of Director General of Police, U.P. at Lucknow justified the cremation at night.

In view of the above, Court directed the Senior Registrar of this Court at Lucknow to register a suo moto Public Interest Litigation with the title In Re: Right to decent and dignified last rites/cremation” and place it before the appropriate Bench having jurisdiction to hear Public Interest Litigations.

Court-appointed Senior Advocate, Jaideep Narain Mathur and Abhinav Bhattacharya Advocate as Amicus Curiae.

State Authorities are directed to ensure that no coercion, influence or pressure is exerted upon the family members of the deceased in any manner, by anyone.

Family members of the deceased victim i.e. the father, the mother, brothers and sisters shall be present before this Court so that this Court ascertains the facts and their version of the incidents which took place at the time of the cremation.

Matter has been listed on 12-10-2020. [Decided on 01-10-2020]

Allahabad High Court_Hathras-Rape-Case

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Mithal and Rajeev Singh, JJ., found itself dealing with an unusual set of facts whereby a petition has been dismissed on the ground that the petitioner has not approached the Court with clean hands.

The set of circumstances in the present matter which led to the above-stated dismissal is that while adjudicating the present petition, an objection was raised by the counsel on behalf of the respondent, J.N. Mathur that the petition is not in the nature of public interest litigation as it is already in the public domain, even before it was presented or officially filed in the Court. The petition is available on a legal news website www.livelaw.in.

The petitioner, Krishan Kanhaiya Pal, who happens to be a practising lawyer, submits that he has filed the petition by abiding by the due procedure and he’s oblivious as to how the petition entered the public domain.

Counsel for the respondent retorted by stating that a breach in the chain of service of notice can be ruled out as the notice if this petition was sent to the Assistant Solicitor General, S.B. Pandey via e-mail. There is no possibility of the petition escaping from his office or system as he is currently recuperating from Covid-19 in the hospital and did not access his e-mail account at all.

Upon careful perusal of the facts, circumstance and arguments advanced, the Court observed that it is evident that the petitioner has invoked writ jurisdiction in order to gain unwarranted publicity in the garb of public interest. The petition was publicised on social media in the pre-litigation stage with a concealed motive of hogging undue limelight.

The legal position in similar cases has been well settled through a catena of judicial pronouncements the crux of which is that the basic purpose behind public interest litigation is to advance human rights and equality or raise issues of broad public concern. It helps the cause of the minority and disadvantaged class of society. The petitioner does not belong to the deprived class and is not seeking any basic human rights through this petition.

The Court has also passed some enlightening remarks which are reproduced below-

“It is pertinent to note that it is becoming a practice to gain publicity by filing petitions on sensitive issues so that it becomes a topic of discussion in public knowing fully well the ultimate result. Thus, publishing of any material proposed to be brought before the courts before it is actually filed is not a healthy practice rather an abuse of the process. It unnecessarily at times may prejudice the minds of the Judges. The media is supposed to play a responsible role in undertaking any such pre litigation publication and ought to avoid it.”

The petitioner has not approached the Court with clean intentions in public interest rather for the oblique purpose of seeking cheap popularity and publicity.

Thus, basis the reasons stated above, the Court dismissed the petition finding no reason to entertain the petition for the purposes of publicity alone.[Krishan Kanhaiya Pal v. Union of India, PIL Civil No. 15130 of 2020, decided on 18-09-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Cyril Amarchand MangaldasExperts Corner

Introduction

Hollywood films such as A Civil Action and Erin Brockovich brought the concept of ‘class action’ into our everyday conversation. The true story of a struggling single mum-turned-hero, Erin Brockovich filed a lawsuit on behalf of residents of a small California town against a large company. The class action that ensued claimed that the company’s systematic disposal of waste chromium contaminated the groundwater that supplied municipal wells, resulting in hundreds of the town’s residents falling seriously ill. The lawsuit was ultimately settled at about USD 333 million (in 1996), and the film (released in 2000) made the protagonist a hero.

For years, the United States of America has been seen as being the foremost bastion of class action as it has strong tort laws, followed by Canada and some European countries (including the United Kingdom), which have also been putting in place collective redressal mechanisms. Indeed, a class action was filed in late 2019, before a German Court on behalf of the entire German population of male piglets as plaintiffs.[1] Whether the case will be admitted as maintainable with animals as named plaintiffs, remains to be seen.

Shareholder activism has been on the rise globally. The shareholder of today is more involved (or evolved!), than before, and is no mute spectator to the business of the company and acts of its management. It is no longer restricted to raising a voice against oppression by majority shareholder(s), or mismanagement of a company, but includes concerns in relation to business decisions, social and environmental issues, strategic management, brand value, reputation, etc. It is now par for the course, for shareholders to demand answers or specific action, including change or compliance with more stringent corporate governance policies. Activism can take several forms, including proxy shareholder battles, publicity campaigns, shareholder resolutions, etc. This has led to a more dynamic interaction between ordinary shareholders and management/promoter groups.

In India, the development of shareholder activism has been slow but constant, from the more passive past to the more active present. The recent spate of financial frauds and scams have also played their part. Investors, shareholders, and even consumers demand transparency and accountability; and are not afraid to demand it.

Enter the long-awaited Companies Act, 2013 (which replaced the Companies Act, 1956), under which the newly-introduced provisions (notified on June 1, 2016, but yet to be used effectively) enable class action to be initiated against a company and its management in certain circumstances. Aimed at investor protection and enhanced accountability,[2] the 2013 Act was touted by the Government as being a historic measure, that would give impetus to growth and bring about transparency.

The key advantage of class action is that individual complainants who may not have the resources to initiate individual proceedings may join together as a class, benefitting from economies of scale and costs.  Efficiency of the judicial system may also be increased as there is no repetition of witnesses and arguments.

The concept of class action is not new to India, however, as some statutory provisions enable an action to be brought by a few in the name of and for the benefit of many. We briefly consider some of these below.

Representative Actions

The Code of Civil Procedure, 1908, enables the plaintiffs to collectively bring a claim to court in a representative capacity for the benefit of a group or class of persons. It thus carves out an exception to the general rule that all persons interested in a suit should be made parties, and enables a group or class of persons with common interest or grievance in a matter to bring an action through only a few named representative plaintiffs.[3] Similar provisions enable a group of representative defendants to enter a defence on behalf of the entire group.

A representative action needs the permission of the court to proceed. Notice must be given to all persons interested, so that any person on whose behalf, or for whose benefit, the suit is instituted (or defended), may apply to be made a party, particularly since any decree passed, will be binding on all members of the class.

Public Interest Litigation

Public interest litigations, or ‘PILs’ filed by a few petitioners have become ubiquitous in India.  PILs are often filed for the enforcement of fundamental rights under the Constitution of India, of a group of persons or the general public, in public interest.[4]  Multiple and far-reaching orders have been passed by High Courts and the Supreme Court against State entities (remedies are not available against private entities), for far-reaching reliefs in public interest.

As this action is filed on behalf of the public at large, the standard rule of locus standi (the right to bring an action in court), does not apply. The petitioners are not themselves required to have suffered the legal injury complained of, or to be part of the affected class. Even an unconnected third party may initiate such proceedings on humanitarian grounds for the benefit of all members of the group or class.[5]

Consumer Protection

The Consumer Protection Act, 2019, which recently came into force,[6] considerably overhauled consumer protection law in India. Consumer class action has received statutory blessing, enabling registered consumer associations, and one or more consumers (where they have a common interest or grievance) to file a class actionon behalf of the group. Complaints may be filed in relation to any goods sold or delivered with the permission of the District Forum, provided they have the same interest or grievance and seek the same relief on behalf of or for the benefit of the group.

The Central and State Governments are also empowered to file a complaint either in their individual or representative capacity for the interests of consumers in general. A first of its kind case was filed in 2015, suo motu by the Union of India against Nestlé India. Initiated as a class action suit on behalf of consumers of Nestlé’s ‘MAGGI Noodles’, the Union contended that Nestlé’s labels were misleading and that there were high levels of lead detected in the Noodles that are much loved by children.[7]

Initial action against Nestlé India was taken by the Food Safety and Standard Authority of India, directing it to recall the products from the market and cease production, an action which was challenged and set aside by the Bombay High Court. The class action lawsuit was filed by the Union of India immediately thereafter on behalf of Indian consumers. Damages of approximately INR 640 crores (USD 85.5 million) were sought for alleged unfair trade practices and sale of defective goods. The matter is currently pending before the National Consumer Disputes Redressal Commission (‘NCDRC’).

Provisions for Minority Protection against Oppression and Mismanagement

Minority shareholder interests have been protected under the erstwhile Companies Act, 1956 (‘the 1956 Act’), and the Companies Act, 2013 (‘the 2013 Act’). Redressal to minority shareholders is available in relation to acts of oppression by the majority shareholders and/ or mismanagement of the company by the controlling group.[8]

There is a threshold qualification of a minimum of 10 members or 10% the members of a company that must be met before a group can initiate this action. The National Company Law Tribunal (‘the Tribunal’), before whom such an action may be filed, has extensive powers to grant redressal against the complaints of oppression/mismanagement. For instance, the Tribunal may grant orders requiring the majority group to buy out the minority shareholders, appointing/removing a director to/from the board of the company, directing the audit of the company’s accounts, appointing an administrator to take over the management of the company, and in egregious cases, even winding up of the company.

While this minority protection is not in itself a ‘class action,’ it empowers a group of shareholders to jointly seek redress.

Class Action under the 2013 Act

The lack of a specific provision for class action in Indian corporate law was particularly felt in the aftermath of the ‘Satyam scandal’ in 2009,  whenthe Chairman of Satyam Computer Services Ltd. confessed to cooking up the company’s books of account to the extent of about USD 1.47 billion (about INR109  billion).  Not surprisingly, the shares tanked, and investors lost about INR 186  billion in value.

After the scandal broke, several investors went after the Chairman, Directors and auditors of the company. As many as 12 class action suits were filed in the United States, ultimately leading to a settlement of almost USD 125 million for the US investors.

The fate of Satyam’s Indian investors was less happy A consumer protection association, Midas Touch Investors Association (“MITA”), approached the NCDRC seeking compensation of INR 49.87 billion (approximately USD 668.52 million), for around 300,000 retail shareholders. The NCDRC refused to hear the complaint citing, among others, a reason that it was not equipped to deal with such cases.[9] MTIA moved the Supreme Court against the rejection but ultimately withdrew the petition[10] (possibly on account of a realisation that they were unlikely to get relief), and Satyam’s Indian investors watched their money go down the metaphorical drain.

The need to codify class actions in respect of company law had been recommended as early as May 2005, in the J.J. Irani Committee’s Report submitted to the Ministry of Corporate Affairs.[11] Two Companies Bills in 2009 and 2011 introduced provisions for class action, but these Bills lapsed. Notably, the 2011 Bill restricted eligible plaintiffs only to members and depositors, excluding creditors from its purview.  The rationale was that the creditors could enforce their claims through contracts with their borrowers, and as such, there was no necessity for a statutory right to class action; members and depositors not having any security, it was necessary to empower them accordingly.[12]

Section 245 of the 2013 Act

It is in this background that Section 245 was introduced in the 2013 Act, enabling members and depositors of a company, either individually or as a class, to join together for redress and appropriate reliefs from the Tribunal. (Banking companies are excluded from its ambit.)

A numerical threshold must be met as a condition to availing of the benefit of Section 245 viz. a minimum of 100 members or 10% of the total number of members of a company is needed to file a class action suit. Where the company does not have share capital, the minimum threshold is 1/5thof the total number of members. Depositors are also entitled to institute class action on similar thresholds.

All similar applications are consolidated into a single proceeding and the lead applicant is chosen amongst them, either by joint consensus of the group, or by the Tribunal. The lead applicant is in charge of prosecuting the action.

Reliefs may be sought against the company, its directors,  auditors,  expert, adviser or consultant for any fraudulent, unlawful or wrongful act, including monetary compensation or damages for the commission of fraudulent acts or those that that are prejudicial to the interests of the company, or its members or depositors, or against the public interest. Orders passed are binding on them all.

There is no maximum cap on the compensation or damages that may be awarded, or the manner in which they may be distributed amongst the applicants, the same clearly being left to the discretion of the Tribunal.

The costs of the application must be defrayed by the company or any other person responsible for any oppressive act.  On the other hand, unsuccessful applicants may be directed to pay the defendant’s attorney’s fees if such an application is rejected as being frivolous or vexatious.

Funding of Class Actions

The Investor Education and Protection Fund: Recognising the need to support minority shareholders and investors, the Ministry of Corporate Affairs announced that plans to implement a scheme to provide them with financial assistance for class actions through the IEPF (Investor Education and Protection Fund), established by the Central Government under Section 125 of the 2013 Act.[13]

Litigation Financing: Third-party funding and the modality of contingency fees, permitting the plaintiff’s lawyer to bear the risk of litigation with the advantage of windfall profits in the event of a successful claim, have leveraged class action movement in the United States and elsewhere. In India, the absence of regulation and a prohibition on lawyers working on contingency or success fees means that this trend is yet to pick up, although it is simply a matter of time.

The Coronavirus Landscape

It is impossible to write an article today without considering the coronavirus pandemic. As distribution networks stretched thin, ‘force majeure’ and ‘material adverse event’ claims were raised in several different avatars. Amid the exponential rise in disputes, as some businesses are being alleged to have taken undue or unfair advantage, some COVID-19 class action cases have already been instituted.

A class-action lawsuit was filed against online retailer Amazon in Florida for allegedly charging excessive prices for personal hygiene products during a public health crisis”. The overpriced sale of goods (such as USD 199 for a bottle of hand sanitizer, USD 40 for face masks, and USD 99 for toilet paper) was held to be in violation of State laws combating price gouging.[14] Costco and eBay are the other retailers that are facing class action claims for alleged price gouging of high demand products during the COVID-19 pandemic.

Gojo Industries Inc., faced a class action before the New York Federal Court on the grounds of misleading, deceptive and unfair claims that it’s Healthcare Advanced Hand Sanitiserkills 99.99% of illness-causing germs” and has the “ability to prevent colds, flu.”[15]

An action has been filed against IPI and its CEO, J. Joseph Kim, on behalf of shareholders who purchased or otherwise acquired IPI securities between February 14 and March 9, 2020,  seeking to recover damages caused due to a massive drop in stock price. The complaint alleges that IPI and its CEO, falsely described their product as a fully completed vaccine when it was nothing of the sort,” which eventually led to a USD 643 million loss of market capitalisation when a statement from Citron Research disputed IPI’s claim.[16]

Crystal ball gazing

Once the dust on COVID-19 settles down, there may be a floodgate of class action claims against global businesses around the world, ranging from cases of negligence against hospitals, restaurants, the travel industry, etc. alleging that they did not take adequate steps to protect the consumers or negligently exposed them to the virus resulting in personal injury or death, to damage claims on account of stock drop securities class action, for instance, owing to misfeasance, malfeasance.

In the Indian scenario, Infosys, the beleaguered tech giant, became the target of a class-action lawsuit in the United States in 2019, in respect of alleged unethical practices; something which the company vehemently denied.  After Infosys was cleared of wrongdoing by the Securities and Exchange Commission in May 2020, the suit was “voluntarily dismissed without prejudice” by the plaintiffs,[17]  and another Satyam-like crash was avoided.

In conclusion, the waters are being tested and it is certain that more and more consumers,  shareholders, and groups of affected/aggrieved parties will approach Indian courts and tribunals for redressal on the basis of similar class actions.


* Partner, Cyril Amarchand Mangaldas

** Principal Associate, Cyril Amarchand Mangaldas

[1] “Germany’s male piglet population might be about to rewrite legal history”, Rick Noak (November 19, 2019), The Washington Post available at https://www.washingtonpost.com/world/2019/11/19/germanys-male-piglets-just-became-latest-animals-file-cases-court-without-their-knowledge/

[2]Statement of Objects and Reasons to the Companies Act, 2013

[3] See Order I, Rule 8 CPC

[4] Articles 226 and 32 of the Constitution of India 

[5]V. Purushotham Rao v. Union of India, (2001) 10 SCC 305

[6] Notification dated 23-7-2020  issued by Ministry of Consumer Affairs, Food and Public Distribution available at https://consumeraffairs.nic.in/sites/default/files/Provisions%20of%20Act%20comes%20into%20force.pdf

[7] Union of India v. Nestle India Ltd., Consumer Complaint No. 870/2015 filed on 11-8-2015 before NCDRC

[8]Sections 397 and 398 under the 1956 Act, which correspond with Section 241 under the 2013 Act.

[9]https://economictimes.indiatimes.com/tech/software/consumer-forum-rejects-plea-on-compensation-in-satyam-case/articleshow/4510331.cms

[10]https://www.business-standard.com/article/companies/sc-dismisses-midas-touch-investor-association-plea-against-satyam-109081003014_1.html

[11] Report of the Expert Committee on Company Law (2005) dated May 31, 2005 issued by Ministry of Corporate Affairs available at http://reports.mca.gov.in/Reports/23-Irani%20committee%20report%20of%20the%20expert%20committee%20on%20Company%20law,2005.pdf

[12] 57th Report of the Standing Committee on Finance (2011-12) (15th Lok Sabha) (Ministry of Corporate Affairs) on the Companies Bill, 2011, p. 16, available at http://164.100.47.193/lsscommittee/Finance/15_Finance_57.pdf

[13]“Govt to give financial aid to minority investors filing class action suits” Business Standard dated  May 6, 2019 available at https://www.business-standard.com/article/pti-stories/govt-set-to-provide-financial-assistance-to-minority-investors-for-class-action-lawsuits-119050500240_1.html

[14]Armas v. Amazon .com Inc., Case No. 104631782, Eleventh Circuit Court in Miami – Dade County, Florida; [A Copy of the class action complaint is available at https://www.docketalarm.com/cases/Florida_State_Miami-Dade_County_Eleventh_Circuit_Court/2020-005653-CA-01/STEPHANIE_ARMAS_VS_AMAZON.COM_INC./Doc-02-Complaint/]

[15] Magdiela Gonzalez v. Gojo Industries, Inc., Case No. 1:20-cv-00888. United States District Court Southern District of New York; [Copy of the class action complaint is available athttps://webcache.googleusercontent.com/search?q=cache:P4pYvmgjNxAJ:https://www.classaction.org/media/gonzalez-v-gojo-industries-inc.pdf+&cd=1&hl=en&ct=clnk&gl=in]

[16] Copy of the class action complaint is available at https://www.dandodiary.com/wp-content/uploads/sites/893/2020/03/inovia-complaint.pdf

[17] https://www.thehindu.com/business/Industry/class-action-suit-against-infosys-dismissed-in-us/article31647106.ece

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and Shrikant D. Kulkarni, JJ., while addressing the instant PIL, observed that, the service of the COVID Warriors in such extra­ordinary testing times is a service to the Nation and mankind.

The Constitutional Court should neither be shy of nor find itself powerless in upholding the fundamental rights of the citizens as guaranteed under Article 21.

COVID-19 Duties

High Court vide the decision of this Court dated 03-07-2020 observed, with regard to the alleged reluctance of the government employees in discharging their COVID-19 duties, wherein following was stated:

“Such persons need to be suspended immediately and if they are appointed on contract basis, contract need to be terminated and criminal action needs to be taken against them. Invariably against every such person such action needs to be taken and things can be corrected only by taking such action.”

Excessive Billing by Hospitals

On 21-07-2020, Court recorded ceratin grievances regarding alleged excessive billing and the alleged obstinate attitude shown by certain private hospitals in admitting COVID-19 patients.

Court has been informed that the local administrations in all the districts of Maharashtra ae putting in strenuous efforts and are working relentlessly even upto late hours in the Night. They begin their activities in the early hours of the day and are leaving no stone unturned in their efforts to contain the spread of coronavirus.

PIL — Whether Criminal or Civil?

Public Prosecutor and the Advocates representing the local bodies strenuously submitted that though the intention of the Court in suo-moto registering the present PIL is laudable, the present matter should not have been registered as a Criminal Public Interest Litigation.

It has been contended that the present PIL should have been registered as a Civil PIL.

For the above-stated issue, bench stated that in the light of Article 311 of the Constitution of India and the principles of natural justice, this Court would not advise short-circuiting of the legal procedure for initiating disciplinary action against the employees of the local authorities or for dispensing with their services.

Legal Procedure

If the legal procedure is followed and if it legally permits the administration to register a criminal offence against any of the erring employees under the provisions of the Epidemic Diseases Act, 1897 and/or the Disaster Management Act, 2005, Court found it judicious to leave the matter to the administration to deal with such cases with an iron hand.

“…it would be unfair on our part to keep the Damocles Sword of initiating criminal action and registering of criminal offences, hanging on the administration and Covid­-19 employees.”

Further, the Court stated that black sheep are found in all walks of life and in all spheres. It is mostly such work shirkers and indisciplined employees, who give a set back to the spirit and momentum of hardworking employees and give a bad name to the system.

Electronic and Print Media

Some stray acts of dereliction in duties or unintended negligence are highlighted and the general public at large, on getting to know such instances through the print and electronic media, develop an apprehension or an impression that the State and the local administration have failed.

Further, the Court observed that the good efforts put in by the administration should not be criticised merely for the sake of public consumption.

Bench has the power in the interest of the public at large, to issue appropriate directions to the Executive with the object of upholding the rights of the citizens.

In view of the above-stated position, Court being aware of its limitations issued guidelines under the heads infrastructure, task force, personnel/staff, the supply of food grains and few under the general category for ensuring that the residents of the State do not feel neglected or deprived of medical assistance.

Before parting with the present decision, Court complimented the officials who have wholeheartedly and dedicatedly devoted themselves in the battle of coronavirus. [High Court of Bombay v. Union of India, 2020 SCC OnLine Bom 865, decided on 18-08-2020]