TMI Blog2010 (1) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... us Writ Petition No. 689 (M/B) of 2001 filed in the Uttaranchal High Court. - CIVIL APPEAL NOS.1134-1135 OF 2002 - - - Dated:- 18-1-2010 - BHANDARI, DALVEER CHAND, AND SHARMA, MUKUNDAKAM, JJ. JUDGEMENT Dalveer Bhandari, J. 1. These appeals have been filed by the State of Uttaranchal (now Uttarakhand) against the orders dated 12.7.2001 and 1.8.2001 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001. 2. The appointment of L. P. Nathani was challenged before the High Court in a Public Interest Litigation on the ground that he could not hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution. According to the respondent, Mr. Nathani was ineligible to be appointed as the Advocate General because he had attained the age of 62 years much before he was appointed as the Advocate General. The High Court entertained the petition and directed the State Government to take decision on the issue raised within 15 days and apprise the same to the High Court. 3. The State of Uttaranchal preferred special leave petitions before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and (a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such courts in succession; Explanation: For the purposes of this clause (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (aa) in computing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor. This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words until he attains the age of sixty years . The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217. 8. Shri Dinesh Dwivedi, the learned senior counsel appearing for the State of Uttarakhand submitted that, over half a century ago, in G.D. Karkare v. T.L. Shevde Others AIR 1952 Nagpur 330, this controversy has been settled by the Division Bench of the Nagpur High Court and the said judgment was approved by a Constitution Bench of this Court in the case of Atlas Cycle Industries Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second clause of Art. 217. It was not suggested that the non-applicant does not possess the qualifications prescribed in that clause. 28. The provision that every Judge of a High Court shall hold office until he attains the age of sixty years has two aspects to it. While in one aspect it can be viewed as a guarantee of tenure during good behaviour to a person appointed as a Judge of a High Court until he attains the age of sixty, in another aspect it can be viewed as a disability in that a Judge cannot hold his office as of right after he attains the age of sixty years. 29. We say as of right because under Art. 224 a person who has retired as a Judge of a High Court may be requested to sit and act as a Judge of a High court. The attainment of the age of sixty by a person cannot therefore be regarded as a disqualification for performing the functions of a Judge. But the learned counsel for the applicant tried to distinguish between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act as a Judge under Article 224. The distinction between the case of a person qualified to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The provision in our view only makes an exhaustive enumeration of the classes of persons who can constitute an Advisory Board. Such persons must either be or must have been or must be qualified to be appointed as Judges of a High Court. The provision has therefore no bearing on the question whether the first clause of Article 165 has to be read with the first clause of Article 217, which question we have already answered in the negative. The case of the nonapplicant is unique. Article 220 is not applicable to him because he did not hold office as a Judge of the High Court after the commencement of the Constitution. So the bar contained in that Article also does not come in his way. 9. Despite the fact that the controversy has been fully settled by a judgment of this Court, it has been raised from time to time in a number of writ petitions before the various High Courts. We would reproduce some of the judgments to demonstrate that after the controversy has been finally settled by this Court, the filing of indiscriminate petitions with the same relief creates unnecessary strain on the judicial system and consequently leads to inordinate delay in disposal of genuine and bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for India was challenged and a prayer was made to issue a writ in the nature of quo warranto, because according to the petitioner, the respondent Milan Banerji had already attained the age of 65 years and he could not be appointed as the Attorney General for India. In that case, the Division Bench relied upon the judgment of the Division Bench of the Nagpur High Court in G.D. Karkare s case (supra). The Court held as under: Having examined various provisions of the Constitution, it is quite clear that the Constitution of India does not provide the retirement age of various constitutional appointees. No outer age limit has been provided for the appointment of the Attorney General, Solicitor General and Advocate General in the State. In the democratic system, prevailing in our country the Attorney General is appointed on the recommendation of the Prime Minister by the President of India and traditionally, he resigns along with the Prime Minister. Learned Counsel for the petitioner could not show any law relating to the age of retirement of Attorney General or embargo provided in Constitution on appointment of a person as Attorney General, who has already attained the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The Court held that the scope of entertaining a petition styled as a public interest litigation and locus standi of the petitioner particularly in matters involving service of an employee has been examined by this Court in various cases. The Court observed that before entertaining the petition, the Court must be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The court hasto strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. 19. The aforementioned cases clearly give us the picture how the judicial process has been abused from time to time and after the controversy was finally settled by a Constitution Bench of this Court, repeatedly the petitions were filed in the various courts. 20. In the instant case, one of the petitioners before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office. 25. In our considered view, it is a clear case of the abuse of process of court in the name of the Public Interest Litigation. In order to curb this tendency effectively, it has now become imperative to examine all connected issues of public interest litigation by an authoritative judgment in the hope that in future no such petition would be filed and/or entertained by the Court. 26. To settle the controversy, we deem it appropriate to deal with different definitions of the Public Interest Litigation in various countries. We would also examine the evolution of the public interest litigation. DEFINITIONS OF PUBLIC INTERST LITIGATION 27. Public Interest Litigation has been defined in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public interest litigation? What is the utility and importance of the public interest litigation? Whether similar jurisdiction exists in other countries or this is an indigenously developed jurisprudence? Looking to the special conditions prevalent in our country, whether the public interest litigation should be encouraged or discouraged by the courts? These are some of the questions which we would endeavour to answer in this judgment. 33. According to our opinion, the public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the country. The Courts directions have immensely benefited marginalized sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. etc. The court s directions to some extent have helped in maintaining probity and transparency in the public life. 34. This court while exercising its jurisdiction of judicial review realized that a very large section of the society because of extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this court further held that where a public interest litigation alleging that certain workmen are living in bondage and under inhuman conditions is initiated it is not expected of the Government that it should raise preliminary objection that no fundamental rights of the petitioners or the workmen on whose behalf the petition has been filed, have been infringed. On the contrary, the Government should welcome an inquiry by the Court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or any consigned to a life of utter deprivation and degradation, such a situation can be set right by the Government. 39. Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fundamental rights have no meaning for them and in order to preserve and protect the fundamental rights of the marginalized section of society by judicial innovation, the courts by judicial innovation and creativity started giving necessary directions and passing orders in the public interest. 43. The development of public interest litigation has been extremely significant development in the history of the Indian jurisprudence. The decisions of the Supreme Court in the 1970 s loosened the strict locus standi requirements to permit filing of petitions on behalf of marginalized and deprived sections of the society by public spirited individuals, institutions and/or bodies. The higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In suitable cases, the courts have also given guidelines and directions. The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation. If the cases of the decades of 70s and 80s are analyzed, most of the public int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (such as consumers' organisations or NAACP-National Association for Advancement of Coloured People-in America), emerges in a developing country like ours, this pattern of public oriented litigation better fulfils the rule of law if it is to run close to the rule of life. xxx xxx xxx The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. 49. The court in this case observed that procedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the spirit in which Courts must view procession deviances. 50. In The Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai Others AIR 1976 SC 1455, this Court made conscious efforts to improve the judicial access for the masses by relaxing the traditional rule of locus standi. 51. In Sunil Batra v. Delhi Administration Others AIR 1978 SC 1675, the Court departed from the traditional rule of standing by authorizing community litigation. The Court entertained a writ petition from a prisoner, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of public interest litigation, these issues must be considered .. xxx xxx xxx xxx xxx xxx Why drive common people to public interest action? Where Directive Principles have found statutory expression in Do's and Don ts the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice 55. In Fertilizer Corporation Kamgar Union (supra) Krishna Iyer, J. and Bhagwati, J. had to answer in affirmative as to whether the workers in a factory owned by government had locus standi to question the legality of sale of the factory. They concluded with a quote: Henry Peter Brougham: Nieman Reports, April 1956 as under: It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty: utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce? 57. Justice Bhagwati of this court in his judgment in S.P. Gupta v. President of India Others AIR 1982 SC 149 altogether dismissed the traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the Court awarded standing to advocates challenging the transfer of judges during Emergency. Describing the traditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this proactive, goal-oriented approach. 59. In Anil Yadav Others v. State of Bihar and Bachcho Lal Das, Superintendent, Central Jail, Bhagalpur, Bihar (1982) 2 SCC 195, a petition was filed regarding blinding of undertrial prisoners at Bhagalpur in the State of Bihar. According to the allegation, their eyes were pierced with needles and acid poured into them. The Court had sent a team of the Registrar and Assistant Registrar to visit the Central Jail, Bhagalpur and submit a report to the Court. The Court passed comprehensive orders to ensure that such barbarous and inhuman ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SC 177, on the basis of a news item in the Indian Express regarding condition of the construction workers, this Court took notice and observed that the construction work is a hazardous employment and no child below the age of 14 years can therefore be allowed to be employed in construction work by reason of the prohibition enacted in Article 24 and this constitutional prohibition must be enforced by the Central Government. 66. In Shri Sachidanand Pandey Another v. The State of West Bengal Others (1987) 2 SCC 295, in the concurring judgment, Justice Khalid, J. observed that the public interest litigation should be encouraged when the Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this 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. 67. The case of B. R. Kapoor Another v. Union of India Others AIR 1990 SC 752 relates to pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India Others (1995) 1 SCC 14, the Court expressed serious concern about the violence against women. The Court gave significant directions and observed that compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape. 72. In Citizens for Democracy v. State of Assam Others (1995) 3 SCC 743, this Court held that handcuffing and tying with ropes is inhuman and in utter violation of human rights guaranteed under the international law and the law of the land. The Court in para 15 observed as under: 15. .. The handcuffing and in addition tying with ropes of the patient-prisoners who are lodged in the hospital is, the least we can say, inhuman and in utter violation of the human rights guaranteed to an individual under the international law and the law of the land. We are, therefore, of the view that the action of the respondents was wholly unjustified and against law. We direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 798, a petition was filed in this Court in which it was realized that despite commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled people are not given preferential treatment. The Court directed the State Governments/local authorities to allot land for various purposes indicted in section 43 of the Act and various items indicated in section 43, preferential treatment be given to the disabled people and the land shall be given at concessional rates. The percentage of reservation may be left to the discretion of the State Governments. However, total percentage of disabled persons shall be taken into account while deciding the percentage. 78. In Avinash Mehrotra v. Union of India Others (2009) 6 SCC 398, a public interest litigation was filed, when 93 children were burnt alive in a fire at a private school in Tamil Nadu. This happened because the school did not have the minimum safety standard measures. The court, in order to protect future tragedies in all such schools, gave directions that it is the fundamental right of each and every child to receive education free from fear of security and safety, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roads for public transport. 85. Louise Erdrich Bigogress, an environmentalist has aptly observed that grass and sky are two canvasses into which the rich details of the earth are drawn. In 1980s, this court paid special attention to the problem of air pollution, water pollution, environmental degradation and passed a number of directions and orders to ensure that environment ecology, wildlife should be saved, preserved and protected. According to court, the scale of injustice occurring on the Indian soil is catastrophic. Each day hundreds of thousands of factories are functioning without pollution control devices. Thousands of Indians go to mines and undertake hazardous work without proper safety protection. Everyday millions of litres of untreated raw effluents are dumped into our rivers and millions of tons of hazardous waste are simply dumped on the earth. The environment has become so degraded that instead of nurturing us it is poisoning us. In this scenario, in a large number of cases, the Supreme Court intervened in the matter and issued innumerable directions. 86. We give brief resume of some of the important cases decided by this court. One of the earliest cases brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and living by the people is entitled to take recourse to Article 32 of the Constitution. 89. This court in Subhash Kumar v. State of Bihar Others AIR 1991 SC 420 observed that under Article 21 of the Constitution people have the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. 90. The case of M.C. Mehta v. Union of India Others (1988) 1 SCC 471, relates to pollution caused by the trade effluents discharged by tanneries into Ganga river in Kanpur. The court called for the report of the Committee of experts and gave directions to save the environment and ecology. It was held that in Common Law the Municipal Corporation can be restrained by an injunction in an action brought by a riparian owner who has suffered on account of the pollution of the water in a river caused by the Corporation by discharging into the river insufficiently treated sewage from discharging such sewage into the river. But in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hics: Choices for Concerned Citizens . The same is reproduced as under: The basic insight of ecology is that all living things exist in interrelated systems; nothing exists in isolation. The world system in weblike; to pluck one strand is to cause all to vibrate; whatever happens to one part has ramifications for all the rest. Our actions are not individual but social; they reverberate throughout the whole ecosystem". [Science Action Coalition by A. Fritsch, Environmental Ethics: Choices for Concerned Citizens 3-4 (1980)] : (1988) Vol. 12 Harv. Env. L. Rev. at 313). 95. The court in this case gave emphasis that the directions of the court should meet the requirements of public interest, environmental protection, elimination of pollution and sustainable development. While ensuring sustainable development, it must be kept in view that there is no danger to the environment or to the ecology. 96. In Essar Oil Ltd. v. Halar Utkarsh Samiti Others AIR 2004 SC 1834, while maintaining the balance between economic development and environmental protection, the court observed as under: 26. Certain principles were enunciated in the Stockholm Declaration giving broad parameters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, which are necessary for "life", would be hazardous to "life" within the meaning of Article 21. In the matter of enforcement of rights under Article 21, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to Fundamental Rights under Articles 14 and 21 and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect the "life", in order to protect "environment" and in order to protect "air, water and soil" from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, under Article 21. 99. The court also laid emphasis on the principle of Polluter-pays. According to the court, pollution is a civil wrong. It is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages or compensation for restoration of the environment and ecology. 100. In Managing Director, A.P.S.R.T.C. v. S. P. Satyanarayana AIR 1998 SC 2962, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other coastal areas and specially to deal with the situation created by the shrimp culture industry in coastal States. 2. The authority so constituted by the Central Government shall implement "the Precautionary principle" and "the Polluter Pays" principles. 3. The shrimp culture industry/the shrimp ponds are covered by the prohibition contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be constructed or set up within the coastal regulation zone as defined in the CRZ notification. This shall be applicable to all seas, bays, estuaries, creeks rivers and backwaters. This direction shall not apply to traditional and improved traditional types of technologies (as defined in Alagarswami report) which are practised in the coastal low lying areas. 4. All acquaculture industries/shrimp culture industries/shrimp culture ponds operating/set up in the coastal regulation zone as defined under the CRZ Notification shall be demolished and removed from the said area before March 31, 1997. 5. The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other AIR 1998 SC 889 is an example of its kind. In that case, the petitioner, who was a journalist, filed a public interest litigation. According to him, the prime investigating agencies like the Central Bureau of Investigation and the Revenue authorities failed to perform their legal obligation and take appropriate action when they found, during investigation with a terrorist, detailed accounts of vast payments, called Jain diaries , made to influential politicians and bureaucrats and direction was also sought in case of a similar nature that may occur hereafter. A number of directions were issued by the Supreme Court. The Court in that case observed that it is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. 108. Another significant case is Rajiv Ranjan Singh Lalan Another v. Union of India Others (2006) 6 SCC 613. This public interest litigation relates to the large scale defalcation of public funds and falsification of accounts involving hundreds of crores of rupees in the Department of Animal Husbandry in the State of Bihar. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Shares of Caltex Oil Refining India Limited and all the undertakings in India for Caltex India Limited) Act, 1977. The court upheld the petitions until the statutes are amended appropriately. 113. These are some of the cases where the Supreme Court and the High Courts broadened the scope of public interest litigation and also entertained petitions to ensure that in governance of the State, there is transparency and no extraneous considerations are taken into consideration except the public interest. These cases regarding probity in governance or corruption in public life dealt with by the courts can be placed in the third phase of public interest litigation. 114. We would also like to deal with some cases where the court gave direction to the executives and the legislature to ensure that the existing laws are fully implemented. 115. In Pareena Swarup v. Union of India (2008) 13 SCALE 84, a member of the Bar of this court filed a public interest litigation seeking to declare various sections of the Prevention of Money Laundering Act, 2002 as ultra vires to the Constitution as they do not provide for independent judiciary to decide the cases but the members and chairperso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and goal. In this case, the courts have carried out their own investigation and in the judgment it is observed that Armed with our own investigation the courts held that all Americans including Americans of African origin can study in all public educational institutions. This was the most significant development in the history of American judiciary. 122. The US Supreme Court dismissed the traditional rule of Standing in Association of Data Processing Service Organizations v. William B. Camp 397 U.S. 150 (1970). The court observed that a plaintiff may be granted standing whenever he/she suffers an injury in fact economic or otherwise . 123. In another celebrated case Olive B. Barrows v. Leola Jackson 346 U.S. 249 (1953), 73 S.Ct. 1031 the court observed as under:- But in the instant case, we are faced with a unique situation in which it is the action of the state court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pation of individual members in the lawsuit . ENGLAND 130. The use of PIL in England has been comparably limited. The limited development in PIL has occurred through broadening the rules of standing. Broad Rules of Standing 131. In Re. Reed, Bowen Co. (1887) 19 QBD 174 to facilitate vindication of public interest, the English judiciary prescribed broad rules of standing. Under the traditional rule of standing, judicial redress was only available to a person aggrieved one who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. However, the traditional rule no longer governs standing in the English Courts. 132. One of the most distinguished and respected English Judge Lord Denning initiated the broadening of standing in the English Courts with his suggestion that the words person aggrieved are of wide import and should not be subjected to a restrictive interpretation. Attorney-General of the Gambia v. Pierre Sarr N Jie (1961) AC 617. 133. The Blackburn Cases broadened the rule of standing in act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice Workers [1978] A.C. 435. In this case, the House of Lords held that in relator claims, the Attorney General holds absolute discretion in deciding whether to grant leave to a case. Thus, the English judiciary did not grant standing to an individual seeking remedy through relator claims. 139. Finally, an amendment to the Rules of the Supreme Court in 1978 through Order 53 overcame the English judiciary s hesitation in applying a broadened rule of standing to relator claims. Order 53 applied the broadened rule of standing to both actions seeking remedy through prerogative writs and actions seeking remedy through relator claims. Rule 3(5) of Order 53 stipulates that the Court shall not grant leave for judicial review unless it considers that the applicant has a sufficient interest in the matter to which the applicant relates. ORDER 53, RULES OF THE SUPT. CT. (1981). In Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, the Court explained that fairness and justice are tests to be applied when determining if a party has a sufficient interest. 140. In Regina v. Secretary of State for the Environment, Ex p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right to appeal be treated as an application for leave to appeal. 145. In Xinwa Others v. Volkswagen of South Africa (PTY) Ltd. 2003 (4) SA 390 (CC), p. 8 the Court cemented the Twala principle that form must give way to substance in public interest litigation. The Court explained that pleadings prepared by lay persons must be construed generously and in the light most favourable to the litigant. Lay litigants should not be held to the same standard of accuracy, skill and precision in the presentation of their case required of lawyers. In construing such pleadings, regard must be had to the purpose of the pleading as gathered not only from the content of the pleadings but also from the context in which the pleading is prepared. IMPACT OF PUBLIC INTEREST LITIGATION ON NEIGHBOURING COUNTRIES 146. The development of public interest litigation in India has had an impact on the judicial systems of neighbouring countries like Bangladesh, Sri Lanka, Nepal and Pakistan and other countries. PAKISTAN: 147. By a recent path-breaking historical judgment of the Pakistan Supreme Court at Islamabad dated 31st July, 2009 delivered in public interest litigation bearing Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of human being, but animal life as well. Therefore, water, which is necessary for existence of life, if polluted, or contaminated, will cause serious threat to human existence. 152. The court gave significant directions including stopping the functioning of factory which created pollution and environmental degradation. 153. Another significant aspect which has been decided in this case was to widen the definition of the aggrieved person . The court observed that in public interest litigation, procedural trappings and restrictions of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the court. The Supreme Court also observed that the Court has vast power under Article 183(3) to investigate into question of fact as well independently by recording evidence. 154. In another important case Ms. Shehla Zia v. WAPDA PLD 1994 Supreme Court 693, a three-Judge Bench headed by the Chief Justice gave significant directions. In the said petition four residents of Street No. 35,F-6/1, Islamabad protested to WAPDA against construction of a grid station in F-6/1, Islamabad. A letter to this effect was written to the Chairman on 15.1.1992 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in the United States and in our country in the case of M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. The court upheld the petitioners fundamental rights. The respondents were restrained from entering into any contract relating to the Eppawala phosphate deposit. The court allowed the petition and the respondents were directed to give costs to the petitioners. The Supreme Court of Sri Lanka protected environmental degradation by giving important directions in this case. NEPAL: 157. A three-Judge Bench of the Supreme Court of Nepal in Surya Prasad Sharma Dhungle v. Godawari Marble Industries in writ petition No.35 of 1992 passed significant directions. It was alleged in the petition that Godawari Marble Industries have been causing serious environmental degradation to Godawari forest and its surrounding which is rich in natural grandeur and historical and religious enshrinement are being destroyed by the respondents. In the petition it was mentioned that the illegal activities of the respondent Godawari Marble Industries have caused a huge public losses. 158. The Supreme Court of Nepal gave significant directions to protect degradation of environment and ecology. The court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations. 164. In S. P. Gupta s case (supra), this Court has found that this liberal standard makes it critical to limit standing to individuals acting bona fide. To avoid entertaining frivolous and vexatious petitions under the guise of PIL, the Court has excluded two groups of persons from obtaining standing in PIL petitions. First, the Supreme Court has rejected awarding standing to meddlesome interlopers . Second, the Court has denied standing to interveners bringing public interest litigation for personal gain. 165. In Chhetriya Pardushan Mukti Sangharsh Samiti (supra), the Court withheld standing from the applicant on grounds that the applicant brought the suit motivated by enmity between the parties. Thus, the Supreme Court has attempted to create a body of jurisprudence that accords broad enough standing to admit genuine PIL petitions, but nonetheless limits standing to thwart frivolous and vexations petitions. 166. The Supreme Court broadly tried to curtail the frivolous public interest li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, this Court concluded that the petition was careless, meaningless, clumsy and against public interest. Therefore, the Court ordered the Registry to initiate prosecution proceedings against the petitioner under the Contempt of Courts Act. Additionally, the court forbade the Registry from entertaining any future PIL petitions filed by the petitioner, who was an advocate in this case. 171. In J. Jayalalitha v. Government of Tamil Nadu Others (1999) 1 SCC 53, this court laid down that public interest litigation can be filed by any person challenging the misuse or improper use of any public property including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest. 172. This court has been quite conscious that the forum of this court should not be abused by any one for personal gain or for any oblique motive. 173. In BALCO (supra), this court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain. 174. In Dattaraj Nathuji Thaware (supra), this court expresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system. The Court cautioned by observing that: Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re ( FRCP ) permits Courts to apply an appropriate sanction on any party for filing frivolous claims. Federal Courts have relied on this rule to impose monetary penalties upon frivolous public interest claims. For example, in Harris v. Marsh 679 F.Supp. 1204 (E.D.N.C. 1987), the District Court for the Eastern District of North Carolina imposed a monetary sanction upon two civil rights plaintiffs for bringing a frivolous, vexatious, and meritless employment discrimination claim. The Court explained that the increasingly crowded dockets of the federal courts cannot accept or tolerate the heavy burden posed by factually baseless and claims that drain judicial resources. As a deterrent against such wasteful claims, the Court levied a cost of $83,913.62 upon two individual civil rights plaintiffs and their legal counsel for abusing the judicial process. Case law in Canadian Courts and U.S. Federal Courts exhibits that the imposition of monetary penalties upon frivolous public interest claims is not unique to Indian jurisprudence. 179. Additionally, U.S. Federal Courts have imposed nonmonetary penalties upon Attorneys for bringing frivolous claims. Federal rules and case law leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dern social state demand for greater judicial responsibility. The PIL has given new hope of justice-starved millions of people of this country. The court must encourage genuine PIL and discard PIL filed with oblique motives. 185. In Guruvayur Devaswom Managing Committee Another v. C.K. Rajan Others (2003) 7 SCC 546, it was reiterated that the court must ensure that its process is not abused and in order to prevent abuse of the process, the court would be justified in insisting on furnishing of security before granting injunction in appropriate cases. The courts may impose heavy costs to ensure that judicial process is not misused. 186. In Dattaraj Nathuji Thaware (supra) this court again cautioned and observed that the court must look into the petition carefully and ensure that there is genuine public interest involved in the case before invoking its jurisdiction. The court should be careful that its jurisdiction is not abused by a person or a body of persons to further his or their personal causes or to satisfy his or their personal grudge or grudges. The stream of justice should not be allowed to be polluted by unscrupulous litigants. 187. In Neetu (supra) this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of law and we have no doubt that the petition has been filed for extraneous considerations. The petition also has the potentiality of demeaning a very important constitutional office. Such petition deserves to be discarded and discouraged so that no one in future would attempt to file a similar petition. 192. On consideration of the totality of the facts and circumstances of the case, we allow the appeals filed by the State and quash the proceedings of the Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001 filed in the Uttaranchal High Court. We further direct that the respondents (who were the petitioners before the High Court) to pay costs of Rs.1,00,000/- (Rupees One Lakh) in the name of Registrar General of the High court of Uttarakhand. The costs to be paid by the respondents within two months. If the costs is not deposited within two months, the same would be recovered as the arrears of the Land Revenue. 193. We request the Hon ble Chief Justice of Uttrakhand High Court to create a fund in the name of Uttarakhand High Court Lawyers Welfare Fund if not already in existence. The fund could be utilized for providing necessary help to deserving young lawyers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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