TaxTMI 
TaxTMI 
2010 (1) TMI 1095
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.... raised within 15 days and apprise the same to the High Court. 3. The State of Uttaranchal preferred special leave petitions before this Court on 6.8.2001. This Court vide order dated 9.8.2001 stayed the operation of the impugned judgment of the High Court. Thereafter on 11.2.2002, this Court granted leave and directed that the stay already granted shall continue. 4. It may be pertinent to mention that, despite the service of notice, the respondents who had initially filed the writ petition before the High Court challenging the appointment of Nathani as the Advocate General did not appear before this Court. This clearly demonstrates the non-seriousness and non-commitment of the respondents in filing the petition. 5. Before we proceed to examine the controversy involved in this case, we deem it appropriate to set out Articles 165 and 217 of the Constitution dealing with the post of the Advocate General and the qualifications for appointment to this post in the Constitution. Article 165 which deals with the appointment of the Advocate General for the States is reproduced as under: "165. The Advocate-General for ....
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....g 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 the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate; (b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act,1935, or has been an advocate of any High Court in any such area, as the case may be. (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final." 7....
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....gpur 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. Sonepat v. Their Workmen 1962 Supp. (3) SCR 89. In Karkare's case (supra), it was observed as follows: "25. It is obvious that all the provisions relating to a Judge of a High Court cannot be made applicable to the Advocate-General. The provisions about remuneration are different for the two offices. A Judge of the High Court is governed by Art. 221. The Advocate-General is governed by clause (3) of Art. 165 and receives such remuneration as the Governor may determine. 26. What the first clause of Art. 165 insists is that the Governor shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Art. 217. It is true that the first clause of Art 217 says that a Judge of a High Court "shall hold office until he attains t....
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.... 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 be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act under Article 224 is not with respect to the qualifications for performing the functions of a Judge, but with respect to the matters provided by Article 221, 222, 223, etc. In the language of the Constitution a Judge does not lose the qualifications prescribed in the second clause of Article 217 on the attainment of the age of sixty years. A person who attains that age cannot be appointed as a Judge not because he is not qualified to be so appointed within the meaning of the second clause of Article 217, but because the first clause of that Article expressly provides that a Judge shall hold office until he attains the age of sixty years. &....
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....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 bona fide cases. 10. The following cases would demonstrate that, in how many High Courts, the similar controversy has been raised after the matter was finally settled by this Court: 11. In Ghanshyam Chandra Mathur v. The State of Rajasthan & Others 1979 Weekly Law Notes 773, the appointment of the Advocate General was once again challenged. The court held that "...no age of superannuation has been mentioned in Article 165 of the Constitution of India. This clearly means that the age of superannuation which applies to a High Court Judge, does not apply to the office of the Advocate General". 12. In Dr. Chandra Bhan Singh v. State of Rajasthan & Others AIR 1983 Raj. 149, the question regarding the va....
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....ointees. 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 age of 65 years. We are of the considered opinion that the letter and spirit of the Constitution as far as appointment of the Attorney General is concerned, looking to significance, responsibility and high status of the post, it lays down certain requirements for a Member of Bar to be appointed as Attorney General of India. It is in this backdrop that the framers of the Constitution thought it necessary to prescribe minimum requisite qualification by laying that a person who is qualified to be appointed as Judge of the Hon'ble Court can be appointed as Attorney-General of India. This situation, however, can....
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....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 High Court is a practicing lawyer of the court. He has invoked the extraordinary jurisdiction of the High Court in this matter. It was expected from a Hon'ble member of the noble profession not to invoke the jurisdiction of the court in a matter where the controversy itself is no longer res integra. 21. Similarly, it is the bounden duty of the court to ensure that the controversy once settled by an authoritative judgment should not be reopened unless there are extraordinary reasons for doing so. 22. In the instant case, the High Court entertai....
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....portant 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 the Black's Law Dictionary (6th Edition) as under:- "Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in que....
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....nterest 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 poverty, ignorance, discrimination and illiteracy had been denied justice for time immemorial and in fact they have no access to justice. Pre-dominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society, this cour....
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....oners 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 litigation because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of....
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.... 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 interest litigation cases which were entertained by the courts are pertaining to enforcement of fundamental rights of marginalized and deprived sections of the society. This can be termed as the first phase of the public interest litigation in India. 44. The Indian Supreme C....
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....lfils 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 disinterested party, objecting to the torture of a fellow prisoner. The Court entertained the writ after reasoning that "these 'martyr' litigations poss....
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....ction? 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 honesty and the shield of innocence." 56. In People's Union for Democratic Rights & Others (su....
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....ion, 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 traditional rule as an "ancient vintage" of "an era when p....
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....an rights and to whom freedom and liberty have no meaning. 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 comprehe....
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....alal Hydro Project v. State of Jammu & Kashmir & Others AIR 1984 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 & ....
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....State Government may consider the same sympathetically. 71. In Delhi Domestic Working Women's Forum v. Union 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 inter....
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....protection and enforcement of these rights of the women at their workplaces. 77. In a recently decided case Prajwala v. Union of India & Others (2009) 4 SCC 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 tra....
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....Delhi to ensure that the pollution level is curtailed and this is being completely observed for the last several years. Only CNG vehicles are permitted to ply on Delhi 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 int....
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....d by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life 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....
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....ral Gas (CNG) or re-locate them. 94. In A. P. Pollution Control Board v. Prof. M. V. Nayadu (Retd.) & Others (1999) 2 SCC 718, this Court quoted A. Fritsch, "Environmental Ethics: 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 ec....
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....213, this Court was of the opinion that Articles 48A and 51-A(g) have to be considered in the light of Article 21 of the Constitution. Any disturbance of the basic environment elements, namely air, water and soil, 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, therefor....
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....gnificant directions as under: 1. The Central Government shall constitute an authority conferring on the said authority all the powers necessary to protect the ecologically fragile coastal areas, seashore, waterfront and 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 remov....
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....sence of corruption. This may broadly be called as the third phase of the Public Interest Litigation. The Supreme Court and High Courts have passed significant orders. 107. The case of Vineet Narain & Others v. Union of India & Another 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)....
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....hout Parliamentary approval or sanction as being contrary to and violative of the provisions of the ESSO (Acquisition of Undertaking in India) Act, 1974, the Burma Shell (Acquisition of Undertaking in India) Act, 1976 and Caltex (Acquisition 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 pub....
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....hip and innovation is reflected in one of the most celebrated path-breaking judgment of the US Supreme Court in Oliver Brown v. Board of Education of Topeka 347 U.S. 483, 489-493 (1954). Perhaps, it would accomplish the constitutional obligation 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 m....
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....on "has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; (c) neither the claim asserted, nor the relief requested, requires the participation 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 stan....
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....eral refuses leave in a proper case, or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has a sufficient interest can himself apply to the court." This rule was promptly overturned by the House of Lords in Gouriet v. Union of Post Office 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 I....
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....itutional Court has been prompt to relax formal pleading requirements in appropriate cases. In S v. Twala (South African Human Rights Commission Intervening), 2000 (1) SA 879, the President of the Court directed that a hand written letter received from a prisoner complaining about his frustration in exercising 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 ....
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....d get contaminated. According to the court, water has been considered source of life in this world. Without water there can be no life. History bears testimony that due to famine and scarcity of water, civilization have vanished, green lands have turned into deserts and arid goes completely destroying the life not 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 P....
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....on that the project was not for a public purpose but for the benefit of a private company and would not bring substantial economic benefit to Sri Lanka. The petitioners claimed imminent infringement of their fundamental rights under various provisions of the Constitution. The court invoked the public trust theory as applied 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 relig....
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.... to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals "acting bonafide." Secondly, the Supreme Court has sanctioned the imposition of "exemplary costs" as a deterrent against 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....
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....reme Court observed that, "we would have been justified in passing a heavy order of costs against the two petitioners" for filing a "light-hearted and indifferent" PIL petition. However, to prevent "nipping in the bud a well-founded claim on a future occasion," the Court opted against imposing monetary costs on the petitioners." In this 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 ....
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....ld agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters -government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are 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....
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....tary penalties upon Advocates for filing frivolous claims. In Everywoman's Health Centre Society v. Bridges 54 B.C.L.R. (2nd Edn.) 294, the British Columbia Court of Appeal granted special costs against the Appellants for bringing a meritless appeal. 178. U.S. Federal Courts too have imposed monetary penalties against plaintiffs for bringing frivolous public interest claims. Rule 11 of the Federal Rules of Civil Procedure ("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 in....
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....n Mukti Sangharsh Samiti (supra) this court again emphasized that Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. The superior courts have to ensure that this weapon under Article 32 should not be misused or abused by any individual or organization. 184. In Janata Dal v. H.S. Chowdhary & Others (1992) 4 SCC 305, the court rightly cautioned that expanded role of courts in modern '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 pe....
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....ts own judgment because of flaws and lacunae, but that should have been a bona fide presentation with listing of all relevant cases in a chronological order and that a brief description of what judicial opinion has been and cogent and clear request why where should be re-consideration of the existing law. Unfortunately, the petitioner has not done this exercise. The petition which has been filed in the High Court is a clear abuse of 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 U....