Friday, April 11, 2008

Is Justice Katju facing isolation on the PIL?

Even as I am trying to come to grips with the Mandal II Judgment (there is confusion whether Majority Judges favoured restriction of OBC quotas to undergraduate courses), I noticed that this post may have priority at least for the record as this blog has been closely following the issue. I understand the extraordinary interest on the Mandal II matter from our readers and naturally, they are likely to consider this post as of secondary importance. Still, I thought this would considerably help neutralise the excitement caused by the Mandal II verdict, which is likely to last for several days to come, in any case.

Today, Justice M.Katju delivered his judgment on the Common Cause case, within a few days of his sensational observations, while reserving his judgment. Justice Katju's judgment is here. The remarkable thing is that his colleague, Justice Sema chose to respectfully differ from him on his general observations on PIL. Justice Sema's Judgment is here. Even while dissociating himself from Justice Katju, Justice Sema agreed with Justice Katju that this petition seeking implementation of Motor Vehicles Act deserved to be rejected.

Only the other day, at the Chief Justice's Court, the CJI and Justice Raveendran were concerned with Justice Katju's observations on PIL.(W.P.[c] 56/2004) Prashant Bhushan, counsel told the Bench that Justice Katju's Aravalli ruling was being given importance in many High Courts, if not in the Supreme Court. Therefore, it was time the Supreme Court constituted a Constitution Bench on the matter. Bhushan began suggesting that he was initially reluctant to endorse the idea of Constitution Bench to clarify the issue, thinking that it was not worthwhile. But now he was fully convinced that only a Constitution Bench could finally resolve the issue. "There are now serious implications", he pointed out. He even suggested that the Supreme Court must have a permanent Constitution Bench, as there are several matters that could be resolved by the Bench. The CJI-Raveendran Bench patiently heard him out, and accepted the other part of his suggestion, namely to invite Fali S.Nariman to be the amicus to consider the nature and extent of scope of PIL before the high Courts and this court. They also accepted Bhushan's another suggestion to issue notice to the SCBA on the matter. The matter will come up before the CJI's Court on August 3. Bhushan's suggestion for a Constitution Bench on the issue was opposed by ASG, Vikas Singh, whose view appears to have prevailed over the Bench.

During the hearing of the matter on April 9, Bhushan pointed to paragraph 26/27 and 30/31 of the Aravalli Judgment which created confusion. "It is couched in a sweeping language", he pointed out repeatedly to the Bench. (Please see Arun's earlier posts on Aravalli on this blog). If the Executive is not performing its duty, can the Court not issue a Mandamus, he asked. In the case before Justice Katju, Prashant Bhushan sought implementation of the S.43 of the Disabled Persons Act. There was no dispute about jurisdiction of the Court, he said. "My matter was very simple, there was no confusion about PIL", he said.

The Chief Justice expressed concern over paragraph 26 of the Aravalli Judgment, saying if this view is accepted, who will take care of the life of the citizen. "Can a common man go to the Chief Minister? Who will protect the life of the common man?", he asked.

The CJI told Prashant Bhushan that the Court cannot give exhaustive guidelines on when PILs can be filed. Bhushan expressed his misgiving that if the three Judges decide the matter, there could be conflict with other guidelines, so it will be better if the Constitution Bench decides the issue.

UPDATE: Thanks to Arun's comment, I now stand corrected. Even as it appeared that Justice Katju was getting isolated on this issue, he is indeed winning new adherents to his cause.

1 comment:

Arun Thiruvengadam said...

Dear Mr. Venkatesan,

Thanks for covering this important issue, which can easily be missed in all the focus on the Thakur case. This seems like a significant development. Justice Sema's curious judgment makes this case quite different from the Bisht ruling (where Justice Sinha dissented squarely from Justice Katju) and more like the Aravali Golf club case, where Justice Mathur became an ally to Justice Katju's cause.

Based on this, my immediate reaction was that your title is a bit misleading, because Justice Katju is not growing isolated, but is actively finding supporters for his general stance on PIL cases. Even if Justice Sema did not agree with his general diatribe on PIL, he did agree to dismiss the petition by Common Cause. (What was interesting for me was the fact that Justice Katju calls into question the basis of Common Cause's ability to bring PIL cases - itself a remarkable fact when you consider how many landmark cases have been litigated by Common Cause). So, both Justices Mathur and Sema have joined Justice Katju in curbing what he deemed to be excesses in PIL cases.

In any case, thanks for drawing attention to the case before the CJ, which should lead to some interesting devlts for the future of PIL.