Public Interest Litigation

Public Interest Litigation

Author : VS Warrier

“Public interest Litigation”, in simple words, means, litigation filed in a court of law, for the protection of “Public Interest”, such as pollution, Terrorism, Road safety, constructional hazards etc. PUBLIC INTEREST LITIGATION is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only “Public Interest” there are various areas where a PUBLIC INTEREST LITIGATION can be filed.

Public Interest Litigation, in Indian law, means litigation for the protection of public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public Interest Litigation is the power given to the public by courts through judicial activism. Continue reading “Public Interest Litigation”

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.

Locus Standi

Maygha Viswanat

Being in the legal fraternity and as law students we often come across the term “Locus Standi.” This maxim forms the deciding factor when a case comes up before the court. It is thus the very basic requirement for the case to be heard by the presiding judge. In simple parlance it means, the right of a party to appear and be heard before a court or the right of a part to bring an action before the court. In better words it is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In Canadians for the Abolition of the Seal Hunt ((Canadians for the Abolition of the Seal Hunt v Canada [1981] 1 FC 733)), Justice Walsh of the Canadian Federal Court referred to locus standi as:

“The right of individuals to bring proceedings … when they are not personally affected (other than of course in their sensibilities) by the law or regulations complained of….”

In R v Paddington ((R v Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd[1966] 1 QB 380))the court held that:

“The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done.”

In Saskatchewan Ltd. v Sask. Liquor and Gaming Authority ((157DLR 4th 82 (1998).)), the Saskatchewan Court of Appeal adopted these words in regards to locus standi:

“A place of standing; standing in court. A right of appearance in a court of justice… on a given question. Roughly speaking, this place of standing, enabling a person to appear before and be heard by a court in relation to a given question, may be acquired in one of two ways: as of right, in reliance upon one’s own private interests in the question (private interest standing); or with leave of the court in reliance largely upon the public’s interest in the question (public interest standing). And standing may exist, or be granted, in both civil and criminal proceedings, proceedings of one sort and other involving claims of various kinds, including a claim that a law is unconstitutional.”

In the case of R vs. Inland Revenue Commissioner (([2000] STC 751, 73 Tax Cas 276)), the court laid down guidelines to determine when the party has sufficient interest in the matter. In India, the concept was Locus Standi was broadened with the advent of Public Interest Litigation. Thus in Fertilizer Corporation Kamgar vs. Union of India ((1981 AIR 344, 1981 SCR (2).)), the court liberalized the concept of locus standi to encourage public interest litigations. Today in India with regard to Public Interest Litigation (PIL), locus standi has been relaxed. Now, any person, group etc who are acting as public spirited citizens can approach the court of law.

Today the concept of locus standi has been broadened and is no more looked at from a narrow angle. Locus standi is one of the most essential and fundamental ingredients or pre-requisite that has to be fulfilled before the court hears the matter. However, due to its strict interpretation, many at times justice was not being served. By bringing out regulations to relax Locus Standi, the country has struck the right chord to bring in a balance with regard to approaching the court.

Common Cause v. Union of India

The most resonant judgment which the Apex Courtdelivered in the year 2014 was the one which cancelled around 200 coal mining licences, in Common Cause v. Union of India. It is the most important decision since its earlier judgment cancelling 2G spectrum licences.

Brief Fact

Coal is king and paramount Lord of industry is an old saying in the industrial world. Industrial greatness has been built up on coal by many countries. In India, coal is the most important indigenous energy resource and remains the dominant fuel for power generation and many industrial applications. A number of major industrial sectors including iron and steel production depend on coal as a source of energy. The cement industry is also a major coal user. Coal’s potential as a feedstock for producing liquid transport fuels is huge in India. Coal can help significant economic growth. India’s energy future and prosperity are integrally dependent upon mining and using its most abundant, affordable and dependant energy supply – which is coal. Coal is extremely important element in the industrial life of developing India. In power, iron and steel, coal is used as an input and in cement; coal is used both as fuel and an input. It is no exaggeration that coal is regarded by many as the black diamond.

Being such a significant, valuable and important natural resource, the allocation of coal blocks for the period 1993 to 2010 is the subject matter of this group of writ petitions filed in the nature of Public Interest Litigation, principally one by Manohar Lal Sharma and the other by the Common Cause. The allocation of coal blocks made during the above period by the Central Government, according to petitioners, is illegal and unconstitutional inter alia on the following grounds:

  1. Non-compliance of the mandatory legal procedure under the Mines and Minerals (Development and Regulation) Act, 1957 (for short, ‘1957 Act’).
  2. Breach of Section 3(3)(a)(iii) of the Coal Mines (Nationalisation) Act, 1973 (for short, ‘CMN Act’).
  3. Violation of the principle of Trusteeship of natural resources by gifting away precious resources as largesse.
  4. Arbitrariness, lack of transparency, lack of objectivity and non-application of mind; and
  5. Allotment tainted with mala fides and corruption and made in favour of ineligible companies tainted with mala fides and corruption.

Principally, two prayers have been made in these matters, first, for quashing the entire allocation of coal blocks made to private companies by the Central Government between 1993 and 2012 and second, a court monitored investigation by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) or by a Special Investigation Team (SIT) into the entire allocation of coal blocks by the Central Government made between the above period covering all aspects.

However, the present consideration of the matter in this case is confined to the first prayer, i.e., for quashing the allocation of coal blocks to private companies made by the Central Government between the above period.

Madras High Court rejected PIL on festival holidays

Bench comprising Chief Justice Sanjay Kishan Kaul and Justice M Sathyanarayanan of Madras High Court while dismissing a Public Interest Petition (PIL) which objected to the court granting four to five days of holidays on occasion of ‘north Indian’ festivals like Diwali, held that, “there is no north-south divide, but for the endeavours of persons like the petitioners, who seek to raise divisive issues only to gain publicity and create unrest among people. It is necessary for this court to come down with heavy hands on such endeavours“.  Court even imposed an exemplary cost of Rs 20,000 on the petitioner.

In the given petition, petitioner claimed that, “till a couple of decades ago, the High Court had been granting just a day’s leave on Diwali, said successive Chief Justices from north India had increased the number of holidays after the north Indian festival had been thrust on Tamils. Long holidays would render advocates jobless”.

While dismissing the Public Interest Litigation, court observed that, the petitioner is raising divisive issues for publicity. Court also criticized the content as well as attitude displayed in the petition. It was also told that, court’s calendar was prepared after a lot of deliberations, including discussions with representatives of advocates.

Court further ruled that, “Whether Advocates are rendered jobless or not is not the concern of the petitioner, as advocates and their representatives are consulted during the framing of the calendar. It need not be the concern of all and sundry, who want to gain public importance through such means”.

Court further observed that, India being a vast country with various cultures, language and food habits, which is something the nation should be proud of, and said, “All these cultures combined together form the nation of India. It is something to be celebrated. It should not segregate the country into two parts by raising divisive issues, as the petitioner seeks to do.”

The Court asked the petitioner to deposit the cost of Rs. 20000/- within 15 days at the mediation centre of the court.

There is no north-south divide, says Madras HC

Bench comprising Chief Justice Sanjay Kishan Kaul and Justice M Sathyanarayanan of Madras High Court while dismissing a Public Interest Petition (PIL) which objected to the court granting four to five days of holidays on occasion of ‘north Indian’ festivals like Diwali, held that, “there is no north-south divide, but for the endeavours of persons like the petitioners, who seek to raise divisive issues only to gain publicity and create unrest among people. It is necessary for this court to come down with heavy hands on such endeavours“.  Court even imposed an exemplary cost of Rs 20,000 on the petitioner.

In the given petition, petitioner claimed that, “till a couple of decades ago, the High Court had been granting just a day’s leave on Diwali, said successive Chief Justices from north India had increased the number of holidays after the north Indian festival had been thrust on Tamils. Long holidays would render advocates jobless”.

While dismissing the Public Interest Litigation, court observed that, the petitioner is raising divisive issues for publicity. Court also criticized the content as well as attitude displayed in the petition. It was also told that, court’s calendar was prepared after a lot of deliberations, including discussions with representatives of advocates.

Court further ruled that, “Whether Advocates are rendered jobless or not is not the concern of the petitioner, as advocates and their representatives are consulted during the framing of the calendar. It need not be the concern of all and sundry, who want to gain public importance through such means”.

Court further observed that, India being a vast country with various cultures, language and food habits, which is something the nation should be proud of, and said, “All these cultures combined together form the nation of India. It is something to be celebrated. It should not segregate the country into two parts by raising divisive issues, as the petitioner seeks to do.”

The Court asked the petitioner to deposit the cost of Rs. 20000/- within 15 days at the mediation centre of the court.

Online advertisements shall comply with Indian laws

Supreme Court disapproved of a stand taken by the central government and said that, an effort has to be made to ensure that websites displaying  advertisements shall not be in violation of the Indian law prohibiting sex determination of a feotus and “nothing contrary to laws of this country are advertised or shown on websites.”

It was a case where, Mr. Sabu Mathew George, through a Public Interest Litigation (PIL) alleged that provisions of the Pre-conception and Pre-natal Diagnostics Techniques (PCPNDT) Act, 1994, were being violated by search engines allowing advertisements related to sex determination techniques and products.

It was highlighted that the search engines such as Google India, Yahoo India and Microsoft Corporation (I) Pvt. Ltd., are still getting things advertised in violation of the legal provisions contained in the aforesaid Act. Google India, Yahoo India and Microsoft Corp. India Pvt. Ltd, however, contended in court that they were not in violation of the law as they only provide a “corridor”.

In an affidavit filed by then UPA Government in the year 2010 said that, blocking websites featuring pre-natal sex determination advertisements “may not be desirable” as they “provide good content for medical education”. However, the affidavit accepts that pre-natal sex determination is a crime in India. But its reasons that, these advertisements are not just meant for Indian citizens but a global audience, some of whom belong to countries where it is not an offence.

Further, the affidavit filed by the Cyber Laws Formulation and Enforcement Division of the Department of Information Technology, said that, “most of these websites are hosted outside the country. Blocking such sites advertising pre-natal sex determination may not be feasible due to their hosting outside the country”.

Alarmed by the tone of “helplessness” in the four-year-old affidavit, the Bench asked for assistance from the current NDA government, saying an effort should be made to provide a legal solution that nothing contrary to the laws of this country are advertised or shown on websites.

High Court upholds authorities’ sealing temple

The bench, comprising Chief Justice Sanjay Kishan Kaul and Justice Pushpa Sathyanarayana while hearing the Public Interest Litigation came up before them challenging the seal put up by officials on the temple in a village in Thiruporur taluk in the district, upheld the act of authorities in locking a temple in Kancheepuram district due to infighting between two groups over worship, observing that, no God demands that people should fight over worshiping Him. The case was pertaining to the sealing of the Gangaiamman Temple by one E Saman on behalf of some of the other villagers.

Saman said revenue authorities sealed one temple located on a poromboke piece of land. The move followed complaints from some villagers who worshipped at the other Gangaiyamman temple. He said the authorities held peace committee meetings to avoid the trouble. Notwithstanding any representations to the Kancheepuram District Collector had not evoked any response and that villagers were unable to offer worship at the sealed temple, Saman sought a direction from the court to unseal it.

It was observed by the bench that there are two Gangaiamman temples in the village. Peace was disturbed due to the fight between two groups. The temple was temporarily sealed, allowing worship in the other temple. It appears that the sealed temple was built on poromboke’ land.

Court observed that, “they are unable to accept the petitioner’s plea that it is an interference with the right of worship. No God demands that people should fight over worshipping Him. If people cannot peacefully worship, then the temple will have to be locked. Hence, the administrator took the right decision in locking the temple till better sense prevails over the people of the area, and upheld the act of authorities in locking a temple. The Court further opined that, the present petition can hardly be termed a Public Interest Litigation.”

Right of lawyers to go on strike: Mumbai HC

Prachi Kumari

A bench headed by Chief Justice Mohit Shah of the Bombay High Court has warned contempt action against lawyers who go on strike. The HC was hearing a PIL filed by advocate Manoj Laxman Shirsatthe contending that the strike observed on calls given by the District Bar Associations on August 29, 2013 and by the Bar Council of India on March 11, 2013 for a countrywide protest on varying issues, were illegal.

The court observed that, “The law with reference to the advocates going on strike is now well settled. It is the duty of every advocate who has accepted a brief to attend trial even though it may go on day-to-day and for a prolonged period. He cannot refuse to attend court merely because a boycott call and/or to go on strike is given by the Bar Association.”

As strike is considered one of the oldest and the most effective weapon for redressing grievances of any sort, it has not left any walk of life unaffected. It appears that legal community too, has developed a tendency of going on strike for any cause.

Subsequently, the Indian judiciary has moved towards taking action against strike.

In Mahabir Prasad Singh Vs. Jacks Aviation (P) Ltd. ((AIR 1999 SC 287)), it was held that “No court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.”

In Koluttumottil Razak Vs. State of Kerala (([2000] 4 SCC 465))it was observed that “It is the duty of Court to carry on with court proceedings. Adjournment cannot be justified where appellant was languishing in jail for a long time. Court should in such cases look into the matter itself and interfere if necessary on merits.”

In Ramon Services Pvt. Ltd, Vs. Subhash Kapoor (([2001] 9 SCC 118))it was observed that “…regrettably courts have contributed to continuance of strikes by sympathising with the Bar and by failing to discharge their legal obligations. In future, inaction by courts may result in contempt of Supreme Court. In future advocates would be answerable for the consequences, at least the monetary loss, suffered by their clients, if non-appearance by advocates were due solely to a strike call.”

The most important case in this regard is Harish Uppal (Ex. Capt.) Vs. Union of India (([2003] 2 SCC 45)). In this case it was held that, “lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc. Lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers are on strike.”

Again inCommon Cause, A Registered Society Vs. Union of India (([2009] 9 SCC 295))it was observed that Action should be taken against Bar Associations/Lawyers instigating/participating in strikes. Immediate disciplinary action is needed to be taken. There should be imposition of costs by courts in addition to compensation payable by advocate to client for loss suffered due to his non-appearance.

Besides law against strike, there is no moral or equitable justification to go on strike. Although I am not against strike, but I think strike should always be opted as last resort and for the purpose of achieving some gainful objective. Recent history reveals that strike as a weapon is mostly misused which results in chaos and total maladministration. Therefore, strike cannot be justified in the present day situation, because sufferer is the society or public at large.

Right to Life: Reshaped Again

Aastha Mehta, Student of Law, GNLU, Gandhinagar

Supreme Court has again taken favored stand for the citizens of the country, by criticizing the Government for not having any framework of rules for clinical trials in India. In a PIL filed by NGO Swasthya Adhikar Manch, the apex Court has directed the government that no clinical trials of untested drugs usually tested on volunteers and patients will be conducted till regulatory legislation or set of rules are in place. The direction has come as shock for pharmaceutical multinational companies however the Court said that lives of the citizens of this country cannot be played with.

The act in question was Drugs and Cosmetics Act, as amended on 2008, which is piecemeal legislation when it comes to use of medicines, antibiotics along with sale and licensing of such drugs and cosmetics. The Additional Solicitor General had argued in the instant case that Union Ministry for Health is considering some serious changes in the Act to make sure that clinical trials are covered within the ambit of this Act, by making a separate chapter on this topic. However the underlying point in the said order of SC shows how concerned and obliged the courts in our country feel when it comes to the question of human life. On seeing the statistics filed by the Centre in their affidavit the Centre admitted to the fact that 2,644 people died during clinical trials of 475 new drugs from the period 2005 to 2012. Though the government kept on saving itself by showing the court various notifications whereby they showed that the proposed amendments also had envisaged process of carrying inspections of clinical trials by setting up an authority especially for the purpose along with a mechanism in place to analyze the reports of Serious Adverse Events happening due to unregulated clinical trials of new medicines on people. But the court turned a deaf ear to all the contingent regulations and specifically banned 162 trials being undertaken by the government till something concrete was done.

Right to Life as enshrined in Article 21 of Indian Constitution has its shadow in this order, and which has made the Court take the morally correct stand, since the it would have been easy for courts to give in to the pressures of big companies which have vested interest in not having any mechanism to keep clinical trials in check. But court has been firm in pronouncing down from the very first, that Article 21 is a wide enough to cover all aspects which will ensure that a human beings live their life with dignity and respect. In future, it is left to be seen how such protective and pro-justice attitude of the apex court translates from mere copy of judgment to real ground practice.

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