Friday, February 26, 2010

Arbitrariness in access to justice

By Renu Gupta
Guest Blogger

This post refers to Supreme Court's decision in State of Uttaranchal v. Balwant Singh Chaufal (PIL Guidelines Case)

Justice Dalveer Bhandari and Justice Mukundakam Sharma recently rendered a judgment in this case, which was an appeal from the decision of the High Court of Uttarkhand in a public interest litigation. The High Court had directed the state government to decide whether appointment of an Advocate General for the state of Uttaranchal beyond the age of 62 years, was valid or not.

The law on this issue is settled that there is no upper limit on age for a person to be appointed to the constitutional post of an Advocate General. The appeal was allowed.

This judgment raises certain interesting issues about the need to regulate the field of public interest litigations. In paragraph 198 of the judgment, certain guidelines have been framed by the court. Here, I have given a gist of those guidelines along with my comment.

1. Encourage genuine and bona fide PIL.
Comment - This guideline is not new and has been reiterated by courts in almost every PIL.

2. High Courts to formulate rules for encouraging and discouraging PIL.
Comment - The judgment is silent as regards why there should be no such uniformity in the Supreme Court in entertaining PILs. Further, implementation of such a guideline will clearly result in judicial legislation in a sphere where there is no law. In a system where we still follow separation of powers (increasingly being diluted by the judiciary) the sphere of legislation should be left to the legislature.

3. The Court should verify the credentials of the petitioner.
Comment - Considering the volume of litigation in India, it is doubtful as to how useful and practical this exercise could be.

4. The Court should prima facie satisfy itself as to correctness of petition.
Comment - Since a petition is supported by an affidavit of the petitioner, in case of a false statement made therein, he can be liable to be prosecuted for the offence of perjury.

5. The Court should be satisfied that substantial public interest is involved.
Comment - This can only be done once the court hears the parties on merits.

6. The Court should ensure that petition which involves larger public interest and urgency should be given priority.
Comment - This is arbitrary and violative of the spirit of Article 14 itself, as the judiciary is going to discriminate between two litigants on arbitrary grounds.

7. The court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.

8. The court should ensure that the petitions filed for ulterior motives must be discouraged by imposing exemplary costs.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.

In a case, titled University of Kerala v. Council of Principals of Colleges, Kerala, decided on November 11, 2009, reported at (2010)1 SCC 353, Justice Katju and Justice Ganguly have referred the question of judicial legislation by courts in PILs, to a larger bench.

At paragraph 18 of the judgment (from manupatra citation), the court (Justice Ganguly wrote a separate but concurring judgment) observed that:

“In my respectful opinion, once the Committee's Report was received by the Court, the Court should have thereafter, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or its delegate (which in this case is the University which can make delegated legislation in the form of Statutes or Ordinances). It is for the Legislature or the concerned authorities to make a law accepting the Report in toto or accepting it in part, or not accepting it at all but it is not for the Court to pass judicial orders for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary.”

At paragraphs 27 and 28, the court held that:

“27. It is not necessary to refer to the other decisions of this Court where it has assumed legislative or executive powers, but the time has come when a thorough reconsideration by an authoritative Constitution Bench is required about the constitutional correctness of these decisions.
28. Hence, I refer the following questions of law, preferably to be decided by an authoritative Constitution Bench of this Court, to be nominated by Hon'ble the Chief Justice of India:
1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report;
2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection; and
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State.
29. In our opinion, these are questions of great constitutional importance and hence, in our respectful opinion they require careful consideration by a Constitution Bench of this Court. The matters we are referring to a larger Bench are occurring in a large number of cases all over the country and indeed all over the world. Hence, the issues we have raised have to be decided after careful consideration preferably by a Constitution Bench and after hearing learned Counsel for the parties, and also taking the help of some senior counsel as amicus curiae.”

Conclusion

There are no settled legal principles for judicial legislation in an area where there is an existing vacuum and even reference of this question to a larger bench does not address the present situation. Pending decision of the Supreme Court, on the question referred, various High courts and the Supreme Court have been entertaining PILs and effectively judicially legislating. For instance, in the case regarding night shelter for the homeless in Delhi, the bench comprising of Justice Dalveer Bhandari has framed certain guidelines.
There are certain judges, [like Justice Katju] who are reluctant to entertain PILs which necessarily involve judicial legislation. However, there are other judges, who want to be compassionate and therefore frame guidelines in PILs. This results in a situation where access to justice for a litigant is arbitrary in itself, since he is more likely to get a relief if his case gets listed before a pro-PIL judge.

[The author practices as an advocate in Delhi]

6 comments:

Pranav Sachdeva said...
This comment has been removed by the author.
Renu Gupta said...

What is it that you do not agree with Pranav?

A pro-relief judge does not necessarily make one a good judge. Although I have not read any other Justice Bhandari's judgment in any other case, I have only made an objective assessment of the same.

Ekta said...

Well i agree with the comments given by the advocate on the subject.. looking forward to more analysis from you..

Talha Abdul Rahman said...

Its an interesting perspective on access to justice, and I agree broadly that the Indian Supreme Court has on more than one occasion delivered judgments that show judicial incoherence. (Whether the Supreme Court should act as one body, or as a collection of individual judges, is another separate question).

However, I specifically disagree with:

"6. The Court should ensure that petition which involves larger public interest and urgency should be given priority.
Comment - This is arbitrary and violative of the spirit of Article 14 itself, as the judiciary is going to discriminate between two litigants on arbitrary grounds."

I think that the spirit of article 14 is applicability of "Doctrine Of Proportionality", and once that three tiered exercise is undertaken it should be considered as the matter has been considered judicially. See http://www.fljs.org/uploads/documents/Transcript%20of%20Barak%20lecture%231%23.pdf by Prof Aharon Barak

In any event, I disagree that this is arbitrary. If there is sound basis for doing so, there is no reason why some litigants cannot be given priority over others. "Larger Public Interest" and "Urgency" ex facie are reasonable grounds. If I were to accept the authors argument, it would mean that all applications moved before pursuant to a "notice of motion" and "lodging numbers" in Bombay High Court - must not be heard, as this creates a priority over other litigants who have to go through normal filing route.

A second procedural issue would be, mentioning of matters. For instance, in Lucknow Bench, matters can be mentioned and those matters would be taken by a judge before others. While, this is arguably, a case management technique - the effect of this is that those litigants whose counsels 'mention' a matter get priority over others whose matters are merely "duly listed".

Even in terms of substance, "urgency" is recognized as a fit ground to deviate from standard judicial practice of giving notice (e.g. Order 39, Rules 1 and 2)

Pranav Sachdeva said...

1. Encourage genuine and bona fide PIL.
Comment - This guideline is not new and has been reiterated by courts in almost every PIL.

My Comment: This guideline, even if it is not new, deserves to be reiterated in strongest terms. There are serious concerns regarding the attitude of some courts to PILs.


2. High Courts to formulate rules for encouraging and discouraging PIL.
Comment - The judgment is silent as regards why there should be no such uniformity in the Supreme Court in entertaining PILs. Further, implementation of such a guideline will clearly result in judicial legislation in a sphere where there is no law. In a system where we still follow separation of powers (increasingly being diluted by the judiciary) the sphere of legislation should be left to the legislature.

My Comment: I agree that this guideline would result in lack of uniformity in various courts as to how to deal with PILs. People who are suffering from mal-governance cannot choose the HC in which they will file a petition. But to say that this will encroach on the power of legislature is wrong. In fact, if legislature makes these rules, then it would affect independence of judiciary. Since most PILs are against the Government, it is better that Government and the Legislatures are kept out of this.


3. The Court should verify the credentials of the petitioner.
Comment - Considering the volume of litigation in India, it is doubtful as to how useful and practical this exercise could be.

My Comment: I agree that this is difficult and at times unnecessary. If the petitioner is able to show through material on record that situation requires court’s interference, then PIL should be admitted whosoever the petitioner may be.


4. The Court should prima facie satisfy itself as to correctness of petition.
Comment - Since a petition is supported by an affidavit of the petitioner, in case of a false statement made therein, he can be liable to be prosecuted for the offence of perjury.

My Comment: Since everything is accompanied by affidavit in courts, so does it mean that courts do not enquire as to the correctness of the averments? If serious allegations are raised without any material in support, then should the courts admit the petition only on the basis of averments?


5. The Court should be satisfied that substantial public interest is involved.
Comment - This can only be done once the court hears the parties on merits.

My Comment: Any intelligent judge can make this out without hearing the parties on merits. For eg. recently a PIL asked for opening of pubs so that people can enjoy their night life. Justice Shah imposed costs on the Petitioner. No need to hear any side.


6. The Court should ensure that petition which involves larger public interest and urgency should be given priority.
Comment - This is arbitrary and violative of the spirit of Article 14 itself, as the judiciary is going to discriminate between two litigants on arbitrary grounds.

My Comment: This cannot be said to be arbitrary at all. Petitions which involve larger public interest should be given priority. For e.g. our CJI spends 2 minutes hearing a petition asking for reservation benefits for millions of Dalit Christians and Dalit Muslims or on a petition seeking police reforms, while he spends hours on a case challenging a commercial arbitral award. This clearly is unjustified.


7. The court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.

My Comment: This guideline is worth reiteration and courts can decide it even without hearing the parties.


8. The court should ensure that the petitions filed for ulterior motives must be discouraged by imposing exemplary costs.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.

My Comment: I agree with the comment given above.

Renu Gupta said...

@ Rahman - Thanks for your analysis. I agree with you. However, I was only making a larger point that for a court to decide cases based on "larger public interest", without any contours to test the same within, would result in arbitrariness in dispensing justice.
But i agree with your point.

@ Pranav - Guidelines which have assumed the force of law by virue of Article 141, I see no merit in their reiteration, considering how vague the same is.

Re: judicial legislation
Separation of powers is a 'basic feature' of our constitution. I do not know how the same is kept intact, with the judiciary encroaching on the legislature's domain. This is debatable.

Re: credentials of petitioner - I understand this as used in the judgment to only mean whether the petitioner is a genuinely interested person or there is aan ulterior mmotive being pursued by someone else, in the guise of a PIL, through a dummy petitioner.

re: contents of petition
the guideline seems to achieve nothing by stating that court shoudl ascertain the correctness. Is it not obvious that the hearing would result in ascertaining the same. Therefore, my comment is in the light of a situation where the court is convinced that the petitioner has come to court with unclean hands, lying on affidavit, in which case, it has sufficient powers (and should exercise them) for prosecuting him for perjury.

Re: priority of cases
I agree with Rahman's point.

Thanks for your analysis.