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.”


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]
Post a Comment