Writ of Quo Warranto in India

The term Quo Warranto means “by what authority or warrant”. It is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold. It is a notice of demand, issued by a person, to the respondent claiming some delegated power, and filed with a court of competent jurisdiction.

In other words, the writ of Quo Warranto is issued by the court to inquire into the legality of claims of a person to a public office. A writ of Quo Warranto calls upon the holder of the office to show the court under what authority he holds the office. Purpose or objective of this writ is to prevent persons who has wrongfully usurped and office from continuing that office ((University of Mysore v. Govinda Rao, AIR 1965 SC 491)).

The writ of Quo Warranto is unlike a petition or motion to show cause, because the onus is on the respondent, not on the demandant. Unlike other four writs such as Habeas Corpus, Mandamus, Prohibition and Certiorari a writ of Quo Warranto can be sought by any interesting party and it is not necessary by the aggrieved person.

In the proceedings for a writ of Quo Warranto the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty to him. The question here in a writ of Quo Warranto is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office ((GD Karkare v. TL Shevde, AIR 1952 Nag 330, 334)).

An application for the writ of Quo Warranto, challenging the legality of an appointment to an office of a public nature is maintainable at the instance of any private person, although he is not personally aggrieved or interested in the matter ((G Venkateshwara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828)).

However, in order to claim a writ of Quo Warranto, the applicant must satisfy the court that, the office in question is a public office and is held by a usurper without legal authority and that, necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with the law or not ((University of Mysore v. Govinda Rao, AIR 1965 SC 491)).

For the purpose a writ of Quo Warranto, a public office means an office in which the public have an interest. For example; an office of the Speaker of a Legislative Assembly is a public office and a writ of Quo Warranto can be issued against the Speaker to inquire by what authority he supported his claim to the office ((Anand Bihari v. Ram Sahay, AIR 1952 MB 31)).

Similarly, it was held that the office of the Advocate General is a public office and a writ of Quo Warranto, could be issued against the office of the Advocate General ((GD Karkare v. TL Shevde, AIR 1952 Nag 333)). However, the writ of Quo Warranto will not lie in respect of an office of a private nature ((R v. Mousley, (1846) 115 ER 1130, see also Jamalpur Arya Samaj v. Dr. D Ram, AIR 1954 Pat 297)).

The issue of a writ of Quo Warranto is discretionary in nature and the petitioner is not necessarily entitled to the issue of a writ. It is also necessary that, the office in respect of which a writ of Quo Warranto is moved must be of a substantive character, and the term “substantive character” mean an office independently entitled ((R v. Speyer, (1916) 1 KB 595)).

Writ of Prohibition in India

Writ of prohibitio, also called as Writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something, which it is about to do. This Writ is issued by either Supreme Court or High Court to an inferior court forbidding it to continue proceedings in a case in excess of its jurisdiction.

Writ of prohibitio prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess ((CCE v. National Tobaco Co. Of India Ltd., AIR 1972 SC 2563)).

Writ of prohibition prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction, which it does not possess. Writ of prohibition has many common features as that of Writ of certiorari viz. the scope and the rules by which the Writ is governed.

Both the Writs of prohibition as well as certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court, but to authorities exercising judicial or quasi-judicial functions ((Hari Vishnu Kamath v. S. Ahmad Ishaque, AIR 1955 SC 233)). Writ of prohibition will lie when the proceedings are to any extent pending and a Writ of certiorari for quashing after they have terminated in a final decision ((Id.)).

When an inferior court takes up any matter for hearing, over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a Writ of prohibition. Upon such application, an order will issue for forbidding the inferior court from continuing the procedure.

For example; where, the Regional Transport Authority has no power under Section 62, of the Motor Vehicle Act, to entertain an application for a temporary permit during the pendency of an application for new permits, the grant of temporary permits was beyond the power conferred upon the Regional Transport Authority and a Writ of prohibition prohibiting Regional Transport Authority from proceeding with the application for a temporary permit was issued ((Hari Narain Roy v. Regional Transport Authority, AIR 1965 Pat 248)).

Existence of an alternative remedy may be more appropriate in case of a Writ of certiorari, but where an inferior court OR tribunal has shown to have usurped jurisdiction, which does not belongs to it, that consideration is irrelevant and the Writ of prohibition has to issue as of right ((Calcutta Discount Co. Ltd., v. ITO, AIR 1961 SC 372)).

DOT ordered to ban porn sites in India

Most of the websites which are delivering pornographic contents are at present in accessible in India, on several Internet Service Providers (ISP’s). With effect from August 1, 2015 most of the internet service providers are displaying either a blank page or “Directory does not exist”.

Some browser displayed even the message “Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India” when attempting to access a porn site.

Earlier, in the month of July, 2015 Supreme Court declined to pass an interim order to block porn sites in India. While hearing a Public Interest Litigation (PIL) filed by an advocate, asking to ban porn sites in India, it was observed by the apex court that, “how can you stop me from watching it within the four walls of my room?”

In the said case, court further observed that, blocking a porn website being watched at home would be a violation of Right to personal liberty as guaranteed under Article 21 of the Indian Constitution.

The petition which is asking for a web filter to censor any obscene content (obscenity is wider than pornography) was on a presumption that the consumption of pornography incites and causes sexual violence to women.

Presidential nod to Black Money Bill

The Undisclosed Foreign Income and Assets Bill, which had secured the Lok Sabha’s approval during the Budget session of Parliament has been cleared by the Office of President of India. The Undisclosed Foreign Income and Assets Bill popularly called the black money Bill. Now Bill will be sent to Rajya Sabha for its consent. Since this Bill is notified as a Money Bill, Rajya Sabha does not have the power to reject the same. Now it is only a procedure to be complied with.

Though it is yet to be notified, it is understood that, those with undisclosed income abroad will get a short compliance window to come clean by paying 30 per cent tax and 30 per cent penalty. After the expiry of said compliance window, anyone found to have undeclared wealth abroad will have to pay 30 per cent tax and 90 per cent penalty. Such offenders may also face criminal prosecution and shall be punishable with imprisonment of up to 10 years.

Quick Reference

What is a Money Bill?

Under article 110(1) of the Constitution, a Bill is deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:

  1. the imposition, abolition, remission, alterationor regulation of any tax;
  2. the regulation of the borrowing of money orthe giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
  3. the custody of the Consolidated Fund or theContingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such fund;
  4. the appropriation of moneys out of the Consolidated Fund of India;
  5. the declaring of any expenditure to beexpenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
  6. the receipt of money on account of theConsolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
  7. Anymatter incidental to any of the matters specified in sub-clauses (a) to (f).
  8. A Bill is not deemed to be Money Bill by reasononly that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licenses or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
  9. The term “incidental” in article 110(1)(g) of theConstitution has wide implications. It is comprehensive enough to include not merely the rates, area and field of tax, but also complete machinery for assessment, appeals, revisions, etc. It is in this light that Finance Bills which, in addition to rates of taxation, contain provisions regarding machinery for collection, etc. are certified as Money Bills. Similarly, a Bill seeking to amend or consolidate the law relating to Income-tax istreated as a Money Bill. Since such Bills substantially aim at imposition, abolition, etc. of any tax, the presence of other incidental provisions do not take them out of the category of Money Bills. Thus there may be only one section in a Money Bill imposing a tax and there may be several other sections which may deal with the scope, method, manner, etc. of its

Certification of Money Bills

  1. A Money Bill can be introduced inLok Sabha  If any question arises whether a Bill is a Money Bill or not, the decision of Speaker thereon is final. The Speaker is under no obligation to consult any one in coming to a decision or in giving his certificate that a Bill is a Money Bill. The certificate of the Speaker to the effect that a Bill is a Money Bill, is to be endorsed and signed by him when it is transmitted to Rajya Sabha and also when it is presented to the President for his assent.
  2. The Speaker’s certificate on a Money Bill oncegiven is final and cannot be challenged.
  3. A Money Bill cannot be referred to a JointCommittee of the Houses.

Money Bill as distinguished from Financial Bill

  1. Whereas a Money Bill deals solely with mattersspecified in article 110(1) (a) to (g) of the Constitution, a Financial Bill does not exclusively deal with all or any of the matters specified in the said article that is to say it contains some other provisions also.
  2. Financial Bills can be divided into two In the first category are Bills which inter-alia contain provisions attracting article 110(1) (a) to (f) of the Constitution. They are categorised as Financial Bills under article 117(1) of the Constitution. Like Money Bills, they can be introduced only inLok Sabha on the recommendation of the President. However, other restrictions in regard to Money Bills do not apply to this category of Bills. Financial Bill under article 117(1) of the Constitution can be referred to a Joint Committee of the Houses.
  3. In the second category are those Bills whichinter-alia contain provisions which would on enactment involve expenditure from the Consolidated Fund of India. Such Bills are categorised as Financial Bills under article 117 (3) of the Constitution. Such Bills can be introduced in either House of Parliament. However, recommendation of the President is essential for consideration of these Bills by either House and unless such recommendation is received, neither House can pass the Bill.

Constitution Amendment Bills—not treated as Money Bill

  1. A Constitution Amendment Bill is not treatedas a Money Bill even if all its provisions attract article 110(1) for the reason that such amendments are governed by article 368 which over-rides the provisions regarding Money Bills.

Some Categories of Money Bills

  1. FinanceBill: Finance Bill is a secret bill introduced in Lok Sabha every year immediately after the presentation of the General Budget to give effect to the financial proposals of the Government of India for the following financial year. Finance Bills are treated as Money Bills as they substantially deal with amendments to various tax laws.
  2. AppropriationBill : An Appropriation Bill is introduced in Lok Sabha immediately after adoption of the relevant demands for grants. Such Bills are categorised as Money Bills as they seek toauthorise appropriation from the Consolidated Fund of India, of all moneys required to meet the grants made by the House and the expenditure charged on the Consolidated Fund of India.

Role of Rajya Sabha

  1. RajyaSabha is required to return a Money Bill passed and transmitted by Lok Sabha within a period of fourteen days from the date of its receipt. The period of fourteen days is computed from the date of receipt of the Bill in the Rajya Sabha Secretariat and not from the date on which it is laid on the Table of Rajya Sabha.
  2. RajyaSabha may return a Money Bill transmitted to it with or without its recommendations.
  3. If a Money Bill is returned byRajya Sabha without any recommendation, it is presented to the President for his assent.
  4. If a Money Bill is returned byRajya Sabha with recommendations it is laid on the Table of LokSabha. Any Minister in the case of a Government Bill or any member in the case of a private member’s Bill after giving two days notice, or with the consent of the Speaker without notice, move that the amendments recommended by Rajya Sabha be taken into  After the motion is carried, the amendments are put to vote. If Lok Sabha accepts the amendment recommended by RajyaSabha, the Money Bill is deemed to have been passed by both Houses of Parliament with the amendments recommended by Rajya Sabha and accepted by Lok Sabha. If Lok Sabha does not accept any of the amendments recommended by Rajya Sabha, the Money Bill is deemed to have been passed by both the Houses of Parliament in the form in which it was passed by Lok Sabha without any of the amendments recommended by Rajya Sabha and it is presented to the President for his assent. However,if Rajya Sabha does not return a Money Bill within the prescribed period of fourteen days, the Bill is deemed to have been passed by both Houses of Parliament at the expiry of the said period of fourteen days in the form in which it was passed by Lok Sabha and thereafter it is presented to the President for his assent.
  5. Provisions of article 108 regarding joint sittingof both Houses do not apply to a Money Bill.

Assent to Money Bills

  1. LokSabha Secretariat is responsible for obtaining assent of all Money Bills after they have been passed or are deemed to have been passed by the Houses of Parliament.
  2. The President may either give or withhold hisassent to a Money Bill. Under the Constitution, a Money Bill cannot be returned to the House by the President for reconsideration.

[Money Bills are governed by articles 108, 109, 110, 111 and 117 of the Constitution and Rules 72, 96, 103 to 108 of the Rules of Procedure and Conduct of Business in Lok Sabha.]

Supreme Court strike down Section 66A of IT Act as unconstitutional

Bench of Supreme Court, while observing public’s right to know is directly affected by Section 66A and the Section clearly affects the right to freedom of speech and expression enshrined under the Constitution of India, held that Section 66A was unconstitutional because it failed two major tests – the clear and present danger test and the tendency to create public disorder test.

The court also found the language used in the Section vague and nebulous saying it doesn’t properly define words like ‘offensive’ or even ‘persistent’. This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites.

Court further, observed that, it can’t go by government assurances that the Section won’t be misused as any assurance would not bind on successive governments. Section 66 A it said, would have to be judged on its own merits. However, allowed the government to block websites if their content had the potential to create communal disturbance, social disorder or affect India’s relationship with other countries.

The court said such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy. The court said the section has to be erased from the law books as it has gone much beyond the reasonable restrictions put by the Constitution on freedom of speech. The Supreme Court said section 66A was vaguely worded and allowed its misuse by police.

The SC delivered its judgment on a bunch of petitions filed in the light of misuse of the penal provision by government authorities against persons who allegedly uploaded offensive posts on social networking sites against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death.

Clarity required on ‘infirmity’ in Section 66A, IT Act 2000

A bench of Justices J. Chelameswar and S.A. Bobde of the Apex Court, while hearing contention of Centre in a case of posting objectionable comments on social websites by some persons sought clarity on ‘infirmity’ in Section 66A of the Information Technology Act 2000 (IT Act). Court recognized that misuse of Section 66A in case of “unpalatable political activity” had to be checked and said for individuals in the public sphere, the ambit of the section had to be defined.

The substance of the proceedings before the apex court was, Whether Section 66A of the Information Technology Act, 2000 (IT Act), which provides punishment for sending offensive messages through a communication service a flawed law, or is it just being improperly implemented? The bench further observed that if the law was being abused, on a case to case basis, the same could be looked into instead of striking down the entire provision. Court further wanted to see the infirmity in the law.

Section 66A of the Information Technology Act, 2000 deals with punishment for sending offensive messages through communication service etc., under which any person who sends, by means of a computer resource or a communication device;

  1. Any information that is grossly offensive or has menacing character; or
  2. Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
  3. Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

For the purpose of Section 66A of the Information Technology Act, 2000 terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Now the issue for debate is whether Section 66A of the Information Technology Act, 2000 is in violation of the fundamental right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. At the same time, Article 19(2) prescribes reasonable restrictions on the right to freedom of speech and expression when the same is in the interests of public order, decency, morality, defamation, contempt of court, sovereignty and integrity of the country and security of India.

Women make-up artists in bollywood and gender bias

Adyasree Prakriti Sivakumar

Supreme Court says no discrimination on ground of gender.

India’s $2-billion film industry is the largest in world by ticket sales. It produces between 300 to 325 movies a year and, although there are no official figures, trade analysts say the Hindi-language industry alone employs more than 250,000 people, most of them contract workers.

In a landmark judgment by the Supreme Court of India, now says that make-up artists cannot be discriminated on the grounds of gender, domicile or years of experience to join any professional institute thus, declaring it “unlawful”.  The apex court also quashed provision which puts restriction on women make-up artists and hair dressers from becoming the members of professional associations. This nearly six decade practice was forcefully stopped due to its “unlawfulness” and “being unconstitutional” and was told not be followed for even a day longer!

The apex court bench headed by Justice Dipak Misra also struck down the provision of the make-up artists and hairdressers association that mandated a person to be a resident of a particular place for five years to entitle him/her to become member of the association.

In a court case brought by a group of female make-up artists against the Cine Costume Make-up Artists and Hair Dressers Association (CCMAA), a two-judge bench said on Monday it would not permit this type of discrimination.

To quote Justices Dipak Misra and U U Lalit, “You better delete this clause on your own. Remove this immediately. We are in 2014, not in 1935. Such things cannot continue even for a day,” they told the CCMAA. The petition was brought by make-up artist Charu Khurana and other qualified female artists whose applications for make-up artist identification cards were rejected by the CCMAA because they are women.

As quoted rightly by Justices Dipak Mishra and U U Lalit, we are living in an era of modernization and internationalization, then why do such cases or circumstances still come up? Why is it that, when we are “getting inspired” by other nations in aspects of technology and computerization, we lack in getting inspired in these aspects?

Why is it that the petition filed, firstly by Charu Khuranna and her team, was rejected on the grounds that she is a “woman”? Doesn’t Article 15 of our Constitution say a big NO to this? To add on, in the very same article, clause (3) says, “….Nothing in this article shall prevent the State from making any special provision for women and children”. Why is it that despite such protection and clarity such a situation arose?

It’s high time we analyzed on this side of the coin. To put it in a nutshell it is “the need of the hour”. In our thoughts and actions alone lie the answers to the problem.

Hyderabad High Court is common for AP and Telengana

Mahima Gherani

A division Bench of Hyderabad High Court comprising Chief Justice Kalyan Jyoti Sengupta and Justice P.V. Sanjay Kumar declared that the present Hyderabad High Court  will continue to have jurisdiction over the States of Telangana and Andhra Pradesh till a separate High Court for AP State is formed which was stated in the Andhra Pradesh Reorganisation Bill, 2014 which was attested by the President of India on 1st March2014 and the appointment day of the new states was 2nd June 2014.

According to the Article 231 of the Constitution of India, the Parliament has the power to establish a High Court for two or more states or two or more states and a Union territory, but there is an exigency to create a separate High Court as the lawyers from the new Telangana state are not being able to ‘fulfil their responsibilities’ as the existing court is overwhelmed with people of Seemandhra.

Section 31(1) of the Andhra Pradesh Reorganisation Act, 2014 specifies that “on and from the day of Appointment Day, the High Court of Judicature at Hyderabad shall common High Court for Telengana and Andhra Pradesh till a separate High Court for the state of Andhra Pradesh is constituted under article 214 of the constitution read with Section 32 of this Act.

The bench was answering the questions which arose in a contempt case heard by a single judge. Land belonging to a person at Anantapur district was taken away by the State Government without notice to his sons, who are well known advocates at the High Courts and houses constructed by the poor. When this case was filed in the High Court and houses constructed for the poor. When this case was filed in the High Court, the judge directed the government to issue proceedings under Land Acquisition Act and then pay compensation. The single judge entertained a doubt whether the present High Court at Hyderabad can continue to have jurisdiction over AP State as the appointment date mentioned was June 2. This case came up to the division bench when a third party filed an appeal. The Bench answered the intrinsic legal issues in detail and speaking through the Chief Justice, said that Section 40 and 105 of the State Recognition Act have to be read harmoniously.

The articles in Constitution of India regarding High Courts and States were analysed and the Bench said that the present High Court of Judicature at Hyderabad will function for both the States. The issue of taking fresh oath in the light of change of nomenclature from High Court of Judicature of Andhra Pradesh to High Court of Judicature at Hyderabad does not arise as there is no fresh appointment.

Right to Live Includes Right to Have Good Food

Ipsita Mishra

Supreme Court has said that the right to life and dignity also includes right to have good food free from harmful pesticides and insecticides, antibiotic residues, etc. The Food Safety and Standards Authority of India have been asked to conduct surprise inspections of major vegetable and fruits markets. State has a duty to achieve an appropriate level of health and protection of human life. Food article that is harmful to health is against Article 21 of the Constitution of India. The Prevention of Food Adulteration Act along with its rules and regulations is sufficient to deal with the grievances and hence an independent technical panel is not required to evaluate the harmful effects on human health. The enforcement by the authorities functioning under these legislations is the only issue. The provisions of the FSS and PFA Acts etc should be interpreted and applied in the light of the constitutional principles. Many food articles contain insecticides or pesticides residues beyond tolerable limits. Children are susceptible to the effects of pesticides because of their physiological immaturity and greater exposure to soft drinks and junks etc. The misleading advertisements targeting the children should be controlled.

The Right to Food Campaign is an attempt to realize the aspirations and guarantees enshrined in the Indian Constitution. Article 3.1 of the Human Rights declaration states that the states have the primary responsibility for the creation of national and international conditions favorable to the realization of the right to development. Article 8.1 further provides equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Further, Article 21 of the Constitution of India guarantees a fundamental right to life which includes the right to health and its determining factors, including food.

Further Reading

Environmental protection and role of judiciary in India

Anshu Bansal, Research Associate

Can Judiciary manage the Environment?

The role of the judiciary is really important as the role of mitochondria of a living human cell. Had the judiciary turned the deaf ear towards environmental problems it could not be in any way came to celluloid ((Mohindra Kothi, Environmental Protection vis-à-vis Judicial Activism, Waila and OIDA International Journal of Sustainable Development  (2010).)).

It is true that the major compelling force behind number of legislations can be attributed to the active role played by judiciary. Indian judiciary is the first in the row who developed the concept of right to healthy environment as a part of life under Article 21 of our constitution ((Bhandu Mukti Morcha v. Union of India, 1984 (3) SCC 161.)). One significant contribution of judiciary is to create a link between fundamental duty and fundamental right. In the case of Subhash Kumar vs. State of Bihar ((AIR 1991 SC 420.)), it was said that the environmental protection which previously was a fundamental duty under article 51(A) also came as a fundamental right under article 21 of the constitution of India. In this context, Public Interest litigation has emerged as one of the major tool for development of environmental jurisprudence.

In another case ((1995 AIHC 4168)), high court directed the defendants to control the noise pollution occurring from the loudspeaker drums in order to keep right to life which include right to noise free environment intact. In addition to this, Court has also held that in matters of environment, the burden of proof will lie on the party that wants to change the status quo ((S.P. Sathe , Judicial Activism in India  (2nd edition).)). In the Bhopal gas tragedy, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by interpreting the scope of the power under Article 32 to issue directions or orders, whichever may be appropriate in appropriate proceedings. According to the court of law the power could be utilized for going new remedies and fashioning new strategies ((Rohan Bagai , Judicial Activism and environmental jurisprudence in India)).

Further, in 1998, the Indian Supreme Court, embracing its activist role, issued a controversial order suo moto mandating the conversion of the entire Delhi fleet of diesel-powered buses to compressed natural gas (CNG) ((Rosencranz, Armin, Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).)). Steadfast resistance from the agencies responsible for enforcing the court order has raised serious questions about the wisdom of this decision. Many opponents have disputed the reliability and practicality of CNG, arguing that the technology is still in development, making the conversion both risky and costly ((Id.)).

Legislations  supporting judiciary to take the matter seriously

M.C Mehta has pioneered legal activism for environmental protection and is proof that one man can make a difference ((M.C Mehta Environmental Foundation (MCMEF).)). With the Supreme Court of India taking the lead, the centre of gravity of justice has now shifted from traditional individual locus standi to the community orientation of public interest litigation ((S.K.Aggarwal, Public Interest litigation in India: A Critique, I.L.I., 1985)).

It is pertinent to point out here that the two provisions under Article 226 and 32 of constitution of India which provides gate for filing Public Interest Litigation or Writ petition in the High court and Supreme Court respectively are the two eyes of the judiciary. The increasing scope of these Articles is the immediate effect of various litigations filed in the respective court.  Under the banner of Public Interest Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the higher courts have tried to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content ((Chandra Pal, Environmental Protection And Emerging Trends In Judicial Responses, Central India Law Quarterly)).

However, constitution of India is not the only legislation which aids the activism of judiciary. There are other legislations which also provide for a platform for judicial intervention and aid judiciary to take the matter seriously. They are:

  • Civil procedure code which contains specific provisions which enabled two or more persons having a legitimate interest in the subject matter to seek remedy through court. The first one is under section 91 which provides for remedy for performing public wrong and another one is under section 92 which deals with remedying breaches of public trusts.
  • Under I.P.C ((Chapter XIV Sections 268 to 294A)), Chapter XIV (Sections 268 to 294A) provides provisions to punish the person who pollutes environment.
  • Chapter X, (Sections 133 to 146) and Chapter XI of Cr.P.C. also provides provisions for granting punishment to those who damage environment.

International conventions which support judiciary to take requisite actions

  • United Nations in its International Conference (1972) laid down its agenda as “to defend and improve the human environment for a present and future generation has become an imperative goal for mankind”. This Conference at Stockholm became the turning point for the development of environmental Jurisprudence.
  • Then there is the General Assembly Resolution in 1972 ((General Assembly’s Resolution of 5th December 1972, designating June 5th as World Environmental Day)), emphasizing the need for the active cooperation among the states in the field of human environment.
  • Earth Summit: The document produced at the Earth Summit has 40 chapters having 800 pages. Agenda 21 – a comprehensive programme of action for global action in all areas of sustainable development was also adopted.

Striking the balance between various rights of the citizen of India

It is the conflicting rights of the citizens which make it difficult for the state to strike a balance between various rights associated with different groups of people. For instance, under the right to life, drinking water is one of the fundamental requirements, but simultaneously the State is obliged to preserve the ground water or to restrict the use so that it can be prevented from being wasted. One the one hand, State has an obligation to protect the forest but at the same time it is also obliged to protect the tribal people whose livelihood is based on forest. State is bound to close down those industries, which are hazardous for the environment, but at the same time has to keep in mind the livelihood of the people who work there ((Supra note 1.)). In the Recent Lok Sabha Debate in Feb., 2013 it was discussed that development should not be at the cost of forests; development should not be at the cost of tribals.  Even the Tribal Affairs Minister has written to the Environment Minister saying that the Forests Rights Act is being violated in giving environmental clearance ((Discussion on the Motion of Thanks on the President’s Address to both Houses of Parliament assembled together on 21.02.2013, moved by Shri P.C. Chacko and seconded by Dr. Girija Vyas available at http://www.indiankanoon.org/doc/70144574/)).

Hence, it is indeed a difficult task to strike a balance between various rights related to different groups of people. It requires active participation of all the inhabitants. It is needed that people first make themselves acquainted with the prospective impact of the degradation of environment. Judicial activism can indeed play a pivotal role in curbing commercial problems. In addition to this inclusion of definition of pollution into international crime to ascertain individual criminal liability will lead to reduce in irresponsible and dangerous behaviour of the communities towards environment ((Id.)).

However, the judiciary sometimes is also criticized for acting beyond its limit which is termed as judicial over-activism. Justice Srikrishna is of the view that in the name of judicial activism, modern judges in India had abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of distributive justice ((Discussion regarding need for harmonious functioning of three organs of State – Legislature, Judiciary and Executive,( 3 December, 2007) available at http://www.indiankanoon.org/docfragment/854333/?formInput=Judicial%20activism%20)). But author beg to differ here because in the current scenario, it won’t be possible for judges to act as a neutral referee. In order to keep pace with the changing scenario, it is needed that judiciary should itself play an active role. Judicial legislation is a tool which had served is still serving and is expected to serve in the future as a major reason behind many environment friendly legislations.