This article is an abridged version of the Citizen's Report titled "The Public Interest Litigation Hoax - Truth Before the Nation" first published by PIL Watch Group in April 2005.
The Public Interest
Litigation Hoax in India
its Adverse Impact on the
Poor
Shobha Aggarwal*
Abstract - In Public Interest Litigation (PIL) cases hundreds of
thousands of poor people in India India
1. Genesis of Public Interest Litigation
The phenomenon of
judicial activism is sufficiently pervasive to be described as ‘the global
expansion of judicial power.’[1]
Judicial activism has acquired a sense of legitimacy all over the world. Many
Non Governmental Organizations (NGOs) are trying to use law-related strategies
to achieve social justice. And a perception is building that the courts will
not fail in the task of enforcing democracy.
Few
legal developments have excited such controversy in recent times as the growth
of Public Interest Litigation (PIL) in India
There is consensus among various legal scholars that the genesis of
PIL in India India India
…a co-operative or collaborative effort on the part of the
petitioner, the State or public authority and the Court to secure observance of
the constitutional or legal rights, benefits and privileges conferred upon the
vulnerable sections of the community and to reach social justice to them.[2]
Though the nature of cases filed as PIL in India
…a public interest litigation is usually entertained by a court for
the purpose of redressing public injury, enforcing public duty, protecting
social rights and vindicating public interests. The real purpose of
entertaining such application is the vindication of the rule of law, effective
access to justice to the economically weaker class and meaningful realisation
of the fundamental rights.[3]
However, while earlier cases concentrated on providing
justice to the disadvantaged, gradually other interests came to be addressed.
As a consequence of several PIL judgements, the interests of the economically
weaker class have therefore suffered, even though PIL in India
The post-emergency judicial activism had generated a
hope that the judiciary would intervene to protect the rights of the people.
This hope and an increasing reliance by public-spirited individuals and groups
upon PIL as a solution to all social evils, is open to question. In an era of
globalisation, rights enjoyed by the workers, women, etc. are under threat. In
this scenario the judiciary is expected to intervene and protect the rights of
the people. On the contrary, the strange spectacle of the judiciary itself
hacking away at the rights of the people is on view today.
There has been a trend in recent years to make the
judgements compatible with the new economic order regardless of their effects
on the underprivileged. Even a legal luminary, Upendra Baxi, has taken note of
this disturbing trend:
Justices are, explicitly and implicitly, asked to make
the Indian Constitution compatible with the sacred texts of globalisation. In
the process a whole new order of juristic and judicial ingenuity is summoned…[4]
Through PIL the judiciary has
usurped the powers of the (corrupt and inefficient) executive over the last
quarter century; more recently it has dared to transgress areas assigned to it
by the Constitution and even ventured to take on the legislature as well. The
judiciary got emboldened in its endeavour as the PIL experiment ensured it a
measure of social legitimacy with little if any criticism of the outcome and
follow-up of PIL directives and orders; as also how the law of natural justice
was violated; how the due process was not followed; how notice was not served
to those who were eventually to be affected by the outcome of these cases; how
the judgements were null and void because the procedure adopted by the judges
was unconstitutional; how there was a rush to judgement. The middle class activists
and the socially motivated intellectuals as also the legal professionals not
only maintained a deathly silence on these issues but actually sang songs in
praise of PIL.
This study is directed towards examining how the apex
court itself laid down certain principles and then proceeded to dishonour them
without bothering to justify its actions. The study will primarily critically
review SC judgements in PIL in the light of the principles of natural justice,
to determine whether they violate these principles; secondly, whether the whole
emphasis in PIL has shifted from providing judicial redress to the weaker and
under-privileged sections of society to other concerns?
2. Is Supreme Court above the Principles
of Natural Justice?
In PIL the SC did away with procedural aspects, meticulously
followed in adversarial litigation. As far back as 1984, Pathak J. had the
foresight to comment that procedural dilution could result in the abuse of the
process of the Court.[5]
This chapter will go into the main principles of natural justice and their
application in adversarial litigation.
Principles of natural justice are essentially meant to ensure a fair
hearing. The concept encompasses two rules:
(i) nemo judex in re
sua, i.e. the authority deciding the matter should be free from bias; and
(ii) audi alteram partem, i.e.
a person affected by a decision has a right to be heard.
In fact the second rule is wide enough to encompass the first rule.
The audi alteram partem rule ensures
that no one be condemned unheard. It is the first principle of civil
jurisprudence that persons against whom any action is sought to be taken, or
whose right or interest is being affected, be given a reasonable opportunity to
defend themselves. The sine qua non
(an indispensable requisite) of fair hearing is that before adjudication
starts, the authority concerned should give to the affected party a notice of
the case so that the party may adequately defend itself.
For a notice to be valid and effective, it must be properly served
on the concerned person. It must give sufficient time to enable the individual
to prepare his or her case. In many cases courts have implied an obligation to
give notice, even though the relevant Act or rules made no express provision
for it. In President, Commonwealth Co-op.
Society v. Jt. Registrar (Gen.) of Co-op Societies it was held that though
the law did not expressly provide for a notice being given to a society, rules
of natural justice required such a notice be given before an order for winding
up was made.[6] It held further
that an order passed in contravention of principles of natural justice was void
and the fact that the petitioner appealed against the order, in which appeal
the order was confirmed, did not preclude the petitioner from urging that the
original order was void.
In India
The rules of natural justice, that no man shall be a judge in his
own cause and no man shall be condemned unheard, remain the same quite
irrespective of statutory enactments which may recognize, abridge or abrogate
those rules. If no question of fundamental rights arises, the statute and the
rules governing the tribunal must be looked at, not to ascertain whether the
rules of natural justice have been complied with, but to ascertain the extent
to which they are recognized. Again, if fundamental rights are involved, the
abrogation or abridgement of the principles of natural justice must stand the
test of the permissible restrictions on fundamental rights.[7]
Since PIL generally involves fundamental rights, waiver of rules of
natural justice cannot be justified on any ground. Initially, even the SC
applied the rules in the pavement dwellers case.[8]
The Court held that on the facts of the case, pavement dwellers, without any
intention of violating the law, were driven by circumstances to make pavements
their homes. Having established that the right to life includes the right to
livelihood, the Court observed that after anxious consideration, it had come to
the conclusion that Section 314 of the Bombay Municipal Corporation Act, 1888
for removal of encroachments on footpaths could not be regarded as
unreasonable, unfair or unjust. It observed that the main attack was against
the provisions of Section 314 of the Act which provided that the Commissioner
may without notice, cause to be removed obstructions mentioned in that section.
Chandrachud Chief Justice of India (CJI) said that the section conferred a
discretionary power, which, like all power, must be exercised reasonably, and
in conformity with the provisions of our Constitution. Section 314 must be read
to mean that except in cases of urgency which brook no delay, in all other
cases no departure from the audi alteram
partem rule (“hear the other side”) must be adhered to.[9]
The exceptions to the rule of natural justice can only be made in
cases of dire emergency when life and limb are at risk, that is, in such cases
where the delay, which the right of hearing may involve, would frustrate the
object of the action. The principles of natural justice would not apply for
e.g. if there is a wall or building in immediate danger of collapsing and there
is no time in public interest to give notice.
In early years when PIL had started, the litigants usually
represented the interest of one or the other vulnerable section. In such a case
the Court may have felt no need to issue notices because their interest was
already being represented. Even the rules of natural justice do not require
that notice be given to those likely to benefit from the outcome. To take a
fictitious case, if the SC decided that every tobacco user be given
compensation by tobacco companies for the damage caused to their health, the tobacco
user need not necessarily be given notice. But the tobacco companies must be
given a chance to be heard as their financial interests are going to get
adversely affected.
A. Post-decisional Hearing
As is self evident, a hearing that takes place before a decision is
arrived at is known as a pre-decisional
hearing; a hearing after a tentative decision is reached, is known as
post-decisional.
The reasons why it is important to give pre-decisional hearing is
explained by the SC in K.I. Shephard v.
Union of India. In this case certain banks were amalgamated with
nationalised banks. As a result of this, some employees of the banks were
excluded and their services were not taken over by the transferee banks. This
was done without giving the employees, whose services were terminated, an
opportunity of being heard. The Court did not agree that a post-decisional
hearing would be adequate in the situation. It observed:
They have already been thrown out of employment and having been
deprived of livelihood they must be facing serious difficulties. There is no
justification to throw them out of employment and then give them an opportunity
of representation when the requirement is that they should have the opportunity
referred to above as a condition precedent to action. It is common experience
that once a decision has been taken, there is a tendency to uphold it and
representation may not really yield any fruitful purpose. [10]
This observation of the SC is based on sound reasoning, and
experience has proved that post decisional representation have made no
difference even to patently absurd judgements delivered. The settlement in the
Bhopal Gas Disaster case is a classic example of this.
In December 1984, a chemical holding tank at a pesticide plant in Bhopal March 29, 1985 ,
the Government of India became the sole representative of the gas victims by virtue
of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, passed by the
Parliament. On December 17,
1987 the District Court of Bhopal ordered Carbide to pay an interim
compensation of Rs. 350 crores in a suit filed by the Government of India. On
Union Carbide’s appeal, the High Court of Madhya Pradesh modified the order and
reduced the interim compensation amount to Rs. 250 crores. Both, the Government
of India and Carbide, appealed to the SC against the order of the High Court.
Instead of deciding the question of interim compensation, there was a SC
assisted settlement of the main suit itself.
After withdrawing to itself the original suits pending in the Bhopal
Court and disposing them off without adjudicating the issue in question, the SC
by its order dated 14/15 February, 1989 directed that there be an overall
settlement of claims in the suit for $470 million and termination of all civil
and criminal proceedings. No notices were given to any victims or their
organisations at the time.
The settlement evoked widespread protests from the victims and other
organisations from all over the country and even abroad. As a result a number
of review and writ petitions were filed before the Supreme Court. The
settlement amount remained unchanged. Even though criminal proceedings were
reinitiated, the Supreme Court in 1997, reduced the criminal liability of the
Union Carbide from culpable homicide not amounting to murder, to rash and
negligent act, thus whittling down the disaster which killed more than ten
thousand people and permanently disabled lakhs of people, to a motor accident,
the maximum punishment for which is two years, if the crime is proved.
Had the SC followed its own reasoning in the Shephard case that pre decisional hearing is necessary because in a
post decisional hearing there is a tendency to uphold the decision already
taken, the entire litigation could have taken a different direction.[11]
Had the Court heard the victims’ organisations before it thought of a
settlement, the nature and outcome of the case could well have been very
different. In this case eventually, following post decisional hearings, the
Court, as predicted by itself, upheld the decision made earlier.
B. Possible Reasons for
Overlooking the Rules of Natural Justice
There can only be two reasons for overlooking the rules of natural
justice in PIL. The first is bias that is barred by the first rule of natural
justice. The maxim nemo judex in re sua
literally means that a man should not be a judge in his own case. It has also
come to mean that a judge must be impartial, in other words the judge should
not have any preconceived notions. In most cases the first rule is the reason
why the second rule audi alteram partem
is violated. It is the pre existing bias in the minds of the judges that
prompts them to ignore the second rule of natural justice.
Another reason could be that of practical considerations: Judges
might feel that there is no answer to the charge made. Only a biased judge can
presume before hearing the other party that there is no answer to the charge.
According to Paul Jackson:
…of all the grounds for excluding the rules of natural justice none
is more vague than that of practical consideration.
…There are at least three justifications for requiring a hearing even
where there appears to be no answer to a charge. First, experience shows that
unanswerable charges, may, if the opportunity be given, be answered;
inexplicable conduct be explained. Secondly, the party condemned unheard will
feel a sense of injustice. Thirdly, suspicion is inevitable that a body, which
refuses a hearing before acting does so because of the lack of evidence not
because of its strength.[12]
Even the SC recognized the necessity of the right to be heard, while
adjudicating in the pavement dwellers case, wherein it observed:
The proposition that notice need not be given of a proposed action
because, there can possibly be no answer to it, is contrary to well-recognised
understanding of the real import of the rule of hearing. This proposition overlooks
that justice must not only be done but must manifestly be seen to be done and
confuses one for the other…The right to be heard has two facets, intrinsic and
instrumental. The intrinsic value of that right consists in the opportunity
which it gives to individuals or groups, against whom decisions taken by public
authorities operate, to participate in the processes by which those decisions
are made, an opportunity that expresses their dignity as persons.[13]
C. Void or Voidable
The question therefore arises - when an authority required to
observe natural justice, in making an order, fails to do so, should the order
made by it be regarded as void or voidable? Generally speaking, a voidable
order means that the order was legally valid at its inception, and remains
valid until set aside or quashed by the courts, i.e., it has legal effect up to the time it is quashed. A void
order is no order at all from its inception; it is a nullity and is void ab initio.
In Ridge v. Baldwin,[14] while referring
to the argument that the decision of the watch committee to dismiss a Chief
Constable without observing natural justice was voidable and not void, Lord
Reid observed:
Time and again in the cases I have cited it has been stated that a
declaration given without regard to the principles of natural justice is
void...I see no reason to doubt these authorities. The body with the power to
decide cannot lawfully proceed to make a decision until it has afforded to the
person affected a proper opportunity to state his case.
The above judgement has been quoted with approval in many judgements
of the Supreme Court of India. In most cases of adversarial litigation the SC
has set aside those judgements of lower courts that violated rules of natural
justice. There is no reason why the rules of procedure, indispensable in
providing justice in adversarial litigation should not be followed in writ
petitions, even if that writ petition be in public interest.
The two major reasons for the higher judiciary not following rules
of natural justice in public interest litigation are: 1. That a writ petition
is filed against the State and there is no need to give notices to other groups
of people whose interests may be affected by the order. 2. Bias- the
presumption that the affected will not have anything to contribute.
To illustrate the bias of the Court a few instances are given here:
In World
Saviors v. Union of India & Others the SC directed 26 industries
to close down.[15] No
directions were given for payment of compensation to workers. In Hariram
Patidar v. M.P. Pollution Control Board & Others, M/s. Staller Drugs
Ltd. Doshigaon, Ratlam was ordered to be closed down until valid consent from
the Madhya Pradesh Pollution Control Board was obtained.[16] In D.P. Bhattacharya & Others v. West
Bengal Pollution Control Board on the basis of the report of the National
Environment Engineering Research Institute, the SC directed closure and
relocation of five hazardous industries from a residential area in Calcutta April 30, 1997 irrespective of whether the new
Distillery had started functioning or not.[18]
In all the above cases, though workers were adversely affected by
the judgement (they were about to lose their livelihood), they were neither
given any notice nor heard during the proceedings. The judgements also do not
safeguard workers’ interest. The factory owners were, however, given notice in
every case and heard throughout the proceedings.
The SC, it appears, took care to give notices to people who could
bring and defend a charge of violation of audi
alteram partem. The bias of the Court prevailed against the workers who
would have been hard pressed in exercising this right.
In fact, the range of natural justice is so far reaching that it
necessitates providing an opportunity to all categories of people, even those
who have no direct legal standing, but whose interests are likely to be affected.
It is imperative that all such people be given a chance to speak for
themselves.
D. Is Supreme Court above
the Principles of Natural Justice?
Rules of natural justice should normally apply in every case
irrespective of the outcome of the case, especially in cases of violation of
fundamental rights. According to Seervai, “…it would be surprising if a
requirement of natural justice was not binding on courts stricto sensu but was nevertheless binding on other adjudicating
authorities.”[19]
In cases where principles of natural justice are violated by lower
adjudicating authorities the affected have the recourse of appealing to higher
judicial bodies. But if the highest court in the land violates principles of
natural justice people have nowhere to turn to. The only way out for them is to
either disregard the verdict or in cases affecting larger interests, to
supersede it by an Act of Parliament. Either option erodes the credibility and
the legitimacy of the Supreme Judiciary.
3. Public
Interest Litigation - in whose Interest?
The Indian experience illustrates
that in examining the instrument of PIL that has been created by an elite
judiciary in order to assist sub-ordinated groups in society, it is crucial to
look at which groups actually initiate, which negotiate and which eventually
benefit.[20]
PIL in the SC is filed under Article 32 of the Constitution that
empowers citizens to approach it directly for the enforcement of fundamental
rights.[21]
The traditional rule of locus standi
only allowed the aggrieved party to approach the Court. Exception was made only
in cases of habeas corpus where the
affected person may not be in a position to come to court and any relation
could petition on his or her behalf.
In 1979 an advocate filed a habeas
corpus petition under Article 32 of the Constitution on the basis of news
reports in the daily news paper, The Indian Express describing how some
under-trial prisoners had already been imprisoned for longer than the maximum
sentence that could be imposed upon conviction. This in a way can be called the
first PIL.[22] In this
case the SC held that:
…right to free legal services is clearly an essential ingredient of
reasonable, fair and just procedure for a person accused of an offence and it
must be held implicit in the guarantee of Article 21 and the State is under a
constitutional mandate to provide a lawyer to an accused person…
Following this, the SC laid down the law on locus standi in the Judges case in which the Court permitted
practicing lawyers to maintain petition against a circular of the Union Law
Minister, alleging danger to the independence of the judiciary.[23]
Expounding the rule, Bhagwati, J. stated:
Where a legal wrong or a legal injury is caused to a person or to a
determinate class of persons by reason of violation of any constitutional or
legal right or any burden is imposed in contravention of any constitutional or
legal provision or without authority of law or any such legal wrong or legal
injury or illegal burden is threatened and such person or determinate class of
persons is by reason of poverty, helplessness or disability or socially or
economically disadvantaged position, unable to approach the Court for relief,
any member of the public can maintain an application for an appropriate
direction, order or writ in the High Court under Art. 226 and in case of breach
of any fundamental right of such person or determinate class of persons, in
this Court under Art. 32 seeking judicial redress for the legal wrong or injury
caused to such person or determinate class of persons. Where the weaker
sections of the community are concerned, such as under-trial prisoners
languishing in jails without a trial, inmates of the Protective Home in Agra,
or Harijan workers engaged in road construction in Ajmer district, who are living
in poverty and destitution, who are barely eking out a miserable existence with
their sweat and toil, who are helpless victims of an exploitative society and
who do not have easy access to justice, this Court will not insist on a regular
writ petition to be filed by the public-spirited individual espousing their
cause and seeking relief for them. The Supreme Court will readily respond even
to a letter addressed by such individual acting pro bono publico.[24]
This landmark judgement threw open the doors of the SC to the
suffering majority. In the period 1981-85 the SC really became the Court of
first resort for the poor. It also marked a turning point in peoples’ campaigns
and movements as they gradually moved from the streets into the courtroom in
search of justice. Some judgements during this period vindicated the rights of
the underprivileged. This was made possible by liberalizing the rule of locus standi, and the Court also began
to entertain letters alleging violations of fundamental rights as writ petitions.
This widening of locus standi in writ
petitions under Article 32 led to many representative cases being filed in the
SC on behalf of the under-privileged and marginalised sections of society by
concerned citizens.
The cases were also dealt with differently than in regular
litigation. Traditionally parties engaged in litigation are always adversaries.
In PIL too, the State took on the role of the adversary, insisting on strict
proof of violations alleged. To deal with this problem in a writ petition filed
in 1982 on the issue of Bonded Labour, Bhagwati J. observed:
We have on more occasions than one said that public interest
litigation is not in the nature of adversary litigation but it is a challenge
and an opportunity to the government and its officers to make basic human
rights meaningful to the deprived and vulnerable sections of the community and
to assure them social and economic justice which is the signature tune of our
constitution.[25]
The Court also adopted other strategies like setting up socio-legal
commissions of inquiry and taking the help of district and High Court judges to
monitor implementation of its directions. These innovations helped transform
the very nature of litigation and redefined the relationship between parties to
a case, including that between the State and the litigants against it. The
transition from adversarial proceedings to the pro-active participation of
judiciary and government was slow but it did take place.
With this perceptible change in the role of the SC many concerns
were brought before it. To mention a few: a petition filed by two professors
from Delhi University on the inhuman conditions in Agra Protective Home for
women in respect of the right to human dignity of those living in a government
protective home;[26] a
petition was filed on behalf of 17 undertrial prisoners who were blinded by the
police while in custody [Bhagalpur blindings case].[27]
In the same vein the Court held that Rajasthan Famine Relief Works Employees
(Exemption from Labour Laws) Act, 1964, is violative of Article 23 (forced
labour) of the Constitution, because it excludes the applicability of the
Minimum Wages Act, 1948, to the workmen employed in famine relief works.[28]
The Court directed the government to enforce labour laws in PUDR v. Union of India (construction
workers of Asiad);[29]
and in Salal Hydro-Project v. State of
Jammu and Kashmir.[30]
In most of these cases, the SC reaffirmed its earlier stance on what
is PIL and gave judgements in favour of the oppressed, though it was not
necessarily creating new rights. For
instance under the statutory law the workers are anyway entitled to minimum
wages. The Minimum Wages Act, 1948 empowers the government to fix a minimum
rate of wages and also provides for the prosecution of defaulting employers. The
Bonded Labour System (Abolition) Act, 1976 abolished this abhorrent practice.
What the SC did was to facilitate access to justice by doing away with the
strict norms of procedure. Otherwise for an individual worker or a bonded
labourer to approach the SC on his or her own would have been a formidable
task.
Once the SC freed itself from the concept of Anglo-Saxon
jurisprudence which require every legal proceeding to observe well settled
rules of procedure it was natural for other interests to approach the Court.
Since then, the PIL has gone much beyond the restricted role of seeking relief
for the weaker sections. The judgements in the nineties reflect the widening
range of issues the SC has had to address. Apart from the continuing flow of
cases regarding civil liberties (prisoners rights, police atrocities etc.),
cases against political corruption and degradation of environment have occupied
the center stage during the decade of nineties. Among these, several cases
filed by M.C. Mehta for protection of environment attracted a good deal of
media attention. In a series of judgements in cases filed by him, the SC gave
directions for the protection of the Taj Mahal;[31]
controlling vehicular pollution in Delhi
Other environmental groups and individuals have also sought the SC’s
intervention. Almitra H. Patel sought directions on solid waste management;[34]
S.Jagannath sought directions to protect ecologically fragile coastal areas;[35]
Vellore Citizens Welfare Forum appealed for an end to pollution by tanneries.[36]
In a case with the widest possible sweep the World Wide Fund for Nature (India
The nineties also witnessed the emergence of what can be
termed political cases with citizens taking to task various government agencies
and politicians through the instrument of the Court. Vineet Narain managed to
get orders directing the CBI to conduct fair and proper investigations into
alleged acts of corruption and breach of Foreign Exchange Regulations Act
[Hawala Case].[38]
Similarly, Common Cause challenged the allotment of petrol pumps by the Union
petroleum minister to his favourites.[39]
The Court also took up a case on the nexus between criminals and politicians in
Dinesh Trivedi, MP and others v. Union Of India
Citizens moved the SC agitating for consumer rights. Common Cause
asked for setting up of consumer state commissions and district forums;[41]
Jagriti Upbhogta Kalyan Parishad petitioned against non-supply of LPG products.[42]
In Pt.Parmanand Katara v.Union of India
Some cases led to the SC giving detailed directions in the absence
of suitable legislation. In Laxmi Kant
Pandey v. Union of India the SC gave
guidelines on adoption of children by foreigners;[44]
and in Vishaka v. State of Rajasthan
it laid down the guidelines for the law on sexual harassment at the work place.[45]
There were also frivolous petitions filed as PIL but not
entertained. A petition to include the Rajasthani language in the eighth
schedule of the Constitution;[46]
a case against beauty pageants;[47]
a petition to mandate the government to enforce policy of total prohibition;[48]
were dismissed. The court also refused to hear private petition masquerading as
PIL like Raunaq International Ltd. v. IVR
Construction Ltd.[49]
Other cases related to developmental projects like the
Narmada Valley Project, Enron and Cogentrix power projects were also filed. The
SC refused to intervene in such cases on the ground that:
It is sufficient to observe that it is primarily for the
Governments concerned to consider the importance of public projects for the
betterment of the conditions of the living of the people on the one hand and
the necessity for the preservation of social and ecological balances, avoidance
of deforestation and maintenance of the purity of the atmosphere and water free
from pollution on the other in the light of various factual, technical and
other aspects that may be brought to its notice by various bodies of laymen,
experts and public workers and strike a just balance between these two
conflicting objectives. The Court’s role is restricted to examine whether the
government has taken into account all relevant aspects and has neither ignored
nor overlooked any material considerations nor been influenced by extraneous or
immaterial considerations in arriving at its final decision.[50]
4. Life
Without Livelihood
Right to life is the most significant of fundamental rights as all
rights flow from it. The SC in its judgements in various PILs expanded the
definition of right to life to include right to livelihood, right to health and
right to clean environment. However, when these rights were pitted against each
other, the SC made no efforts to balance them. This has resulted in several
ambiguities and contradictions.
The broadening of the definition of the right to life began in the
eighties with the verdict in the case that has come to be known as the pavement
dwellers’ case and was filed by Olga Tellis.
In Olga Tellis v. Bombay
Municipal Corporation the SC held that right to life includes right to
livelihood.[51] This case challenged the forceful eviction of
pavement dwellers by municipal authorities. The question raised for the Court’s
consideration was whether certain sections of the law [Sections 312(1), 313(1),
and 314, of the Bombay Municipal Corporation Act, 1888] entitled “Regulation of
Streets” violated the right to life guaranteed by Article 21 of the
Constitution. Having referred to the circumstances under which people in Bombay
This does not mean that the unemployed can go to court demanding
enforcement of their right to livelihood. According to Seervai:
…when the Court held that “life” included “livelihood”, all that it
meant was that although the Court could not compel the State by affirmative
action to provide livelihood to people, the Court could intervene in a proper
case to prevent the State from action which would result in people being
deprived of their livelihood.[52]
In the above case a five judge constitution bench of the SC held
that:
The sweep of the right to life conferred by Article 21 is wide and
far reaching. It does not mean merely that life cannot be extinguished or taken
away as, for example, by the imposition and execution of the death sentence,
except according to procedure established by law. That is but one aspect of the
right to life. An equally important facet of that right is the right to
livelihood because, no person can live without the means of living, that is,
the means of livelihood. If the right to livelihood is not treated as a part of
the constitutional right to life, the easiest way of depriving a person of his
right to life would be to deprive him of his means of livelihood to the point
of abrogation. Such deprivation would not only denude the life of its effective
content and meaningfulness but it would make life impossible to live. And yet,
such deprivation would not have to be in accordance with the procedure
established by law, if the right to livelihood is not regarded as a part of the
right to life.[53]
... But the Constitution does not put an absolute embargo on the
deprivation of life or personal liberty. By Article 21, such deprivation has to
be according to procedure established by law.[54]
In this case then the SC went on to examine whether or not the
procedure established by law was followed. It held that the procedure had not
been followed, as the petitioners had not been given notice. But since they had
got ample notice during the proceedings in the Court it was not necessary to
serve a notice afresh. However, temporary relief during the period of monsoon
was provided.
This right to livelihood came in direct conflict with the right to
clean environment that was held as implicit in the right to life in Rural Litigation Entitlement Kendra v. State
of Uttar Pradesh March 12, 1985 , the SC
ordered that the entire mining activity in the Doon
valley should come to halt. The workers petition against premature termination
of services was de-linked from the main petition as the SC felt that it had
nothing to do with the issue.[56]
The Court observed that while it is true that the lessees of limestone quarries
which had been directed to be closed down would be thrown out of business yet
it is a price that has to be paid for protecting and safeguarding the right of
the people to live in a healthy environment with minimal disturbance of
ecological balance. To mitigate hardship of those thrown out of business they
should be given priority in granting leases elsewhere; and secondly, workers
displaced by this order should be provided employment in afforestation and soil
conservation programme to be taken up in the area.[57]
These directions concerning workers were not enforceable and they
were provided no compensation. The mine owners had a better deal. When nothing
was done to rehabilitate them, they approached the Court again. An inter-state
committee was set up by the SC on August 30, 1988 to oversee the rehabilitation of displaced
mine owners in Uttar Pradesh and other states.[58]
The kind of concern that was expressed for the mine owners was missing in the
case of the workers.
The judgement in Pavement Dwellers' case, upholding right to
livelihood as an integral part of right to life was not followed in this case
despite the fact that the earlier judgement had been delivered by a
Constitution Bench, which is binding on other judges of the SC.
Similar conflicts between right to livelihood and right to clean
environment have continued to arise in several cases. Instead of resolving the
conflict and balancing the rights, in the Ganga Pollution case the
justification given by the SC to order closure of tanneries was: ‘We are
conscious that closure of tanneries may bring unemployment, loss of revenue,
but life, health and ecology have greater importance to the people.’[59]
This rationale of the SC is incredible. Life, health and ecology are
no doubt, extremely important, but it is difficult to imagine these concerns
taking precedence over life itself. And is it possible for a person to think of
environmental pollution on an empty stomach? Instead of reconciling competing
interests, the Court has chalked out a hierarchy of priorities that is
disputable. Such arbitrariness has now come to characterise most judgements in
cases related to environmental pollution, and workers’ rights are generally
relegated to the backseat.
5. Condemned Without a Hearing
In recent years, the issue of environment protection from industrial
pollution has become the theme song of many PILs. In the case of industries in Delhi
Although the SC issued a detailed order on compensation payable to
workers, it ignored ground realities in the labour market that made a mockery
of the judgement on this score. The case is highly complex and is still going
on. To recount a few pertinent facts: The first Master Plan (MP) for Delhi August 1,1990 , is the Master
Plan for Delhi-Perspective 2001 (MPD 2001). It declares that industries will be
confined to areas or zones demarcated specifically for them. Industries in
zones not conforming to land use rules under the Master Plan were to be shifted
within the National
Capital Territory Delhi
a) The hazardous and noxious industrial units are not permitted in Delhi
b) The existing industrial units of this type shall be shifted on
priority within a
maximum time period of three years….”[61]
Till the case came up in the SC, the Delhi August 23, 1995
that there were an estimated 93,000 industries in Delhi
Under orders from the SC the Central Pollution Control Board (CPCB)
launched an exercise to identify industries that could be grouped in the ‘H’
category of the MPD 2001. Eventually on July 8, 1996, the final picture that
emerged in the SC was that 104 units identified by the CPCB, 59 identified by
the Delhi Pollution Control Committee (DPCC) and another five operating in
non-conforming areas, were found to be in the ‘H(a)’ category. On July 8, 1996 the Court
ordered that the 168 industries grouped in the ‘H(a)’category:
... cannot be permitted to operate and function in Delhi Delhi 30-11-1996 .[63]
In the same order several directions were issued including one to
the four states (Uttar Pradesh, Haryana, Rajasthan and Delhi) to ‘set up a
single window facility’ to act as a nodal agency to sort out all the problems
of industries, so as to facilitate shifting of industries.
Contrast this with the orders on workers. The SC quoted with
approval the note on relocation of hazardous industries prepared by the
Member-Secretary of the National Capital Region (NCR) Planning Board that says:
‘Since the NCR Towns are within the commuting range of Delhi and each other,
the labour can either shift to the new sites or at least can keep commuting
till they finally shift to the new place.’[64]
The Court then gave a detailed order on the workers of industries to be shifted
outside Delhi
In the same order the SC included directions on payment to workers
who were in imminent danger of losing their jobs upon closure or in the event
of relocation of these units. The July 8, 1996 order states:
(c) All those workmen who agree to shift with the industry shall be
given one year’s wages as “shifting bonus” to help them settle at the new
location;
(d) The workmen employed in the industries which fail to relocate
and the workmen who are not willing to shift along with the relocated
industries, shall be deemed to have been retrenched with effect from
30-11-1996, provided they have been in continuous service (as defined in
section 25B of the Industrial Disputes Act, 1947) for not less than one year in
the industries concerned before the said date. They shall be paid compensation
in terms of Section 25-F(b) of the Industrial Disputes Act, 1947. These workmen
shall also be paid, in addition, one year’s wages as additional compensation;
(e) The “shifting bonus” and the compensation payable to the workmen
in terms of this judgement shall be paid by the management before 31-12-1996 .[65]
In a later order passed on December 4, 1996 , the SC raised the compensation to six
years wages for regular workers by those industries that chose to just close
down and not relocate. The workmen of industries who refused to shift along
with the relocating industries were however entitled to only one year’s wages
as additional compensation as originally directed. In the case of industries
that were closing down the SC permitted the managements to pay the compensation
in installments but laid down that the total amount must be paid before April 30, 1997 .
The SC order was made only in favour of permanent workers, which
category anyway excludes over three-fourths of the workforce. No mechanism was
evolved to ensure payment of compensation to the workers. Only one government
undertaking that decided to close down has paid compensation to workers. There
is no reason why the SC could not set up a committee to ensure payment of
compensation to workers as it did to protect employers' interests.
This judgement not only violates the fundamental rights of the
workers but also the statutory provisions regarding the closures and retrenchment
of workers under Chapter V of the Industrial Disputes Act, 1947.
According to Section 25F, of
the Industrial Disputes Act, 1947 a worker has to be paid compensation at the
time of retrenchment and not at some later date.[66]
If the compensation is not paid at that time, the retrenchment becomes illegal.
Thus the retrenchment of most workers in the above industries has now become
illegal.
Even after the deadline of April 30, 1997 set by the Court had expired, most affected
workers had not received compensation. When workers approached the SC on the
issue of non-payment of compensation they were directed to go to the labour
court. It is not as if the apex court is unaware of the delays in the labour
court and the difficulties workers experience in these courts. After all, the
Court mindful of bureaucratic delays, had ordered a single window clearance for
industries to help them relocate and reiterated the direction in its December 4, 1996 order. In
the case of workers it did not find it necessary to set up a nodal or
monitoring agency to ensure that due compensation is paid and paid before the
last date set by the Court.
More importantly, in this case the retrenchment, even though it has
become illegal, is a direct consequence of the SC orders. No labour court would
hold this retrenchment illegal in such circumstances.
While the SC order underscores the right of citizens (especially the urban elite) to live in a clean and safe environment, it has not adequately addressed itself to
ensuring that people have the right to work
in clean environment… The present SC order concerning the Delhi
The closure of industries will only increase the
immiserisation of the people, which in turn will lead to conditions that are
not conducive for environment protection. The need is to make the industry
invest in pollution control and cleaner technologies rather than allow them the
easier way out by closing down while they shift to pollute elsewhere.
At the initial stages of PIL, in the 80s,
the SC had directed its efforts at securing workers' rights. The SC, in Workers of M/s Rohtas Industries Limited v.
M/s Rohtas Industries Ltd., held that payment of salaries and wages due to
workers will have priority over payment to creditors like banks and financial
institutions and directed that the goods lying in stock be sold off to pay
workers their wages till the date of closure. [67]
Workers' right to participation in management was also upheld in National Textile Workers’ Union v. P.R. RamaKrishnan.[68]
The SC held that although the Companies Act does not provide for the
participation of the workers in the winding up proceedings of a company, yet
they are entitled to be heard in those proceedings, because they have a direct
interest in the company's continued functioning.
The SC in this case drew inspiration from Article 43A of the
Constitution that enjoins upon the State to ensure participation of workers in
management of industries. The above cases had come to the SC on the issue of
workers' participation in proceedings regarding sale or winding up of a sick
industry. And the Court rightly held that the voice of workers must be heard
since their jobs and, by derivation their right to life, is at stake.
A decade later the SC had reoriented itself to serve the interests
of the New Economic Policy, and to liquidate workers' rights to that end. In
the nineties when environmental concerns led to orders of closure of
industries, the SC jettisoned the right of workers' participation in closure
proceedings, without assigning any reasons. The same logic that dictates
workers' participation in closure of sick industrial units should also operate
in the case of environmental litigation, but the SC has not even touched the
issue.
In case the SC feels compelled to stop an economic
activity due to environmental concerns, it has to reconcile the interests of
all affected parties. By denying a hearing or alternatives to workers the SC
judges are directly violating their constitutional mandate.
6. Unconstitutional Procedure – Null and
Void Judgements
The obvious answer therefore to the question that what happens if
the SC violates principles of natural justice is that its judgements can be
overruled by an Act of Parliament.
All the same it would be more appropriate if the Supreme Judiciary
(to retain its credibility and dispense justice) constitutes a full bench to
review all its PIL judgements - in which principles of natural justice stand
violated - under Article 137 of the Constitution. For the review to be
effective and just, notice should be issued to all affected parties and a
reasonable opportunity should be given to them to state their case.
Moreover all future PILs should be treated as regular writ petitions
or class action suits if people other than the petitioner are affected. The
procedure adopted should also be the same as for a regular writ petition or
class action suits. Even SC has also noted this in a judgement:
There is no provision under Order XXXV for any special procedure in
respect of a public interest petition under Article 32. The petition will have
to be served on the respondents who have a right to file a counter-affidavit.
Although the proceedings in a public
interest litigation may not be adversarial in a given case, there can clearly
be different perceptions of the same problem or its solution and the
respondents are entitled to put forth their own view before the Court which may
or may not coincide with the view of the petitioner. The Court may come to a
view different from that of any of the parties.[69]
This study too makes a case for the necessity of following the due
process of law even in PIL. This does not require a new Act. The procedures
already exist and are diligently followed in regular litigation. There are
three essential components of following procedure: One, it must give notice to
all concerned parties, which anyway is a part of the rules of natural justice.
Second is public accountability. Third is reason i.e. the Court must clearly
state the reasoning by which it has arrived at a decision, so that the affected
parties, and any others interested in the issue, are aware of how and why an
order has been passed.
Since PILs in the SC are filed under Article 32 (in High
Courts under Article 226) of the Constitution, the State is a necessary party
to the proceedings, but other affected parties are not given a notice. These
cases ordinarily would have been treated as Class Action Suits. Class Action
Suit means that where certain people have common rights that are threatened,
one person, with the permission of the court, can file a representative suit on
their behalf. Provisions regarding Class Action Suits already exist in order 1,
Rule 8 and 8A of the Civil Procedure Code, 1908 and for writ petitions under
Order XXXV of The Supreme Court rules, 1966.[70]
The problem that arises in not using the provisions of Class
Action Suits and SC rules in writ petitions filed as PIL is that petitioner is
not bound to make other people who may get adversely affected, parties to the
suit. It is left to the discretion of the Court whom to make parties. As we
have seen in this report only those people who were in a position to defend the
charge of violation of procedure have been made parties.
Also judges themselves are not infallible. They come with
their own baggage of political, moral and religious convictions, which may
affect the outcome of a case. Procedural safeguards are therefore necessary to
avoid the undue impact of such extraneous matters. By following procedural
safeguards they are forced to listen to all viewpoints and come to a reasoned
judgement.
Moreover the larger question of public accountability in PIL
has now assumed greater urgency as large sections are often immediately and
adversely affected by judgements passed without having been given the
opportunity to be heard. So long as the SC was just adjudicating between two
private parties in a suit the question of public accountability did not arise
(although even in adversarial litigation questions of public interest are often
decided). The advantage of the procedure followed in adversarial litigation is
that both sides are adequately represented.
In PIL too, in the beginning the State adopted an adversarial
position denying all allegations made by the petitioner. As a counter measure
the Court had insisted that PIL is not adversarial in nature. According to Sathe:
When the Judges spoke against the adversary procedure, they did not
mean that any evidence would be believed without giving an opportunity to the
other party to show that it was false. To that extent, the adversary procedure
could not be dispensed with. However, what the Courts expected from the
respondent, which was the State in most of the cases, was that instead of
taking an adversary position and merely denying the allegation, it should help
the Court to find out the truth.[71]
But now that the nature of PIL has changed, if conflicting concerns
and interests
of various groups have to be adjudicated then they should also be
represented in the Court.
The third important aspect is the duty to give reasons. It has now
come to be accepted as an integral part of the principles of natural justice.
The SC has over the years insisted that administrative and quasi-judicial
bodies have to provide reasons for their orders.
Stating reasons is desirable in all cases, but its importance in PIL
can hardly be over emphasized as by definition it affects the larger
public. The SC has at times rejected
petitions and intervention applications from groups who were going to get
directly affected by the outcome of the case, without assigning any reasons.
There is no clear policy of permitting interventions. The policy for allowing
interventions in PIL should be liberal so that all concerned interests are
adequately represented.
Also, in such cases it should be incumbent upon the Court to cite
reasons for its decision. It cannot and should not be allowed to whittle down
to a dialogue between the State and the petitioners who in many cases come with
their own preconceived ideas of a problem.
In the final analysis the Courts must follow the due process of law
in all cases and protect the fundamental rights of the people as mandated by
the constitution.
* An activist lawyer; founded Legal Support Group, Delhi 1989; presently
with the Public Interest Litigation Watch Group (PILWG), Delhi. Thanks are due
to members of PILWG for providing support during the research for this paper.
[1] The quote derived from the title of the book: C.N.Tate & T.
Vallinder Eds., ‘The Global Expansion of Judicial Power’ (1995).
[2] People’s Union For Democratic Rights v Union Of India, (1982) 3 SCC
235 at 242.
[3] Malik Brothers v Narendra Dadhich, 1999 (5) SCALE 212 at 214.
[4] U.Baxi ‘Towards a Structural Adjustment of Judicial Activism?’in
Jagga Kapur, Supreme Court On Public Interest Litigation, [Vol.1 SCALE (PIL)
1981-1997] A-145-A at A-145-E.
[5] Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802 at 840.
[6] The President, Commonwealth Co-operative
Society Ltd., Ernakulam v The Joint Registrar (General) of Co-operative
Societies, Trivandrum, AIR 1971 KERALA 34.
[7] H.M. Seervai, Constitutional Law of India (4th edn, 1993) at 1744.
[8] Olga Tellis v Bombay Municipal Corporation, (1985) 3 SCC 545.
[9] Ibid at 580-581.
[10] K.I. Shephard v Union of
India, AIR 1988 SC 686 at 695.
[11] Ibid.
[12] Paul Jackson, Natural Justice (2nd
edn, 1979, First Indian Reprint 1999) at 133-137.
[13] Above n 7 at 582.
[14] Ridge v Baldwin [1963] 2 ALL E R 66 at 81.
[15] World Saviors v Union of India, 1996 (3) SCALE (SP) 32.
[16] Hariram Patidar v M.P.
Pollution Control Board, 1996 (4) SCALE (SP) 7.
[17] D.P. Bhattacharya v West
Bengal Pollution Control Board, 1996 (3) SCALE (SP) 41.
[18] Tarala V. Patel v Union
Territory of Pondicherry, 1997 (3) SCALE (SP) 5.
[19] Above n 6 at 1761.
[20] M. Galanter, Law and Society in Modern India ( 3rd impression,
1997) at 291.
[21] The Constitution of India, Article 32.
Remedies for enforcement of rights
conferred by this part-(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is
guaranteed.
(2) The Supreme Court shall have power
to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers
conferred on the Supreme Court by clauses (1) and (2), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause(2).
(4) The right guaranteed by this
article shall not be suspended except as otherwise provided for by this
Constitution.
[22] Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC
1360.
[23] S.P. Gupta v Union of India, AIR 1982 SC 149.
[24] Ibid at 188-189.
[25] Bandhua Mukti Morcha v Union of India, (1984) 3 SCC 161 at 182.
[26] Upendra Bakshi v State of UP, (1983) 2 SCC 308.
[27] Khatri and Others v State of Bihar, (1981) 1 SCC 623.
[28] Sanjit Roy v State of Rajasthan, AIR 1983 SC 328.
[29] Above n 1.
[30] Salal Hydro-Project v
State of Jammu and Kashmir, (1983) 2 SCC 181.
[31] M.C. Mehta v Union of India, 1996 (1) SCALE (SP) 16.
[32] M.C. Mehta v Union of India, 1996 (2) SCALE (SP) 92.
[33] M.C. Mehta v State of Tamil Nadu , (1996) 6 SCC 756.
[34] Almitra H. Patel v Union of India, 1997 (6) SCALE (SP) 11.
[35] S.Jagannath v Union of India, (1997) 2 SCC 87.
[36] Vellore Citizens Welfare Forum v Union of India, 1995 (5) SCALE
592.
[37] Centre For Environmental Law v Union of India, 1997 (6) SCALE (SP)
8.
[38] Vineet Narain v Union of India, 1997 (7) SCALE 656.
[39] Common Cause v Union of India, (1996) 6 SCC 593.
[40] Dinesh Trivedi v Union of India, 1995 (6) SCALE.
[41] Common Cause v Union of India, 1990 (2) SCALE 460.
[42] Jagriti Upbhogta Kalyan Parishad v Union of India, 1997 (7) SCALE
308.
[43] Pt.Parmanand Katara v
Union of India, (1989) 4 SCC 286.
[44] Laxmi Kant Pandey v Union of India, AIR 1986 SC 272.
[45] Vishaka v State of Rajasthan, AIR 1997 SC 3011.
[46] Kanhaiya Lal Sethia v Union of India, 1997 (5) SCALE 341.
[47] Amitabh Bachchan Corpn. Ltd. v Mahila Jagran Manch, (1997) 7 SCC
91.
[48] B. Krishna Bhat v Union of India, (1990) 3 SCC 65.
[49] Raunaq International Ltd.
v IVR Construction Ltd, (1999) 1 SCC 492.
[50] The Dhahanu Taluka Environment Protection Group v Bombay Suburban
Electricity Supply Company Ltd., (1991) 2 SCC 539 at 541.
[51] Above n 7 at 575.
[52] Above n 6 at 1185.
[53] Above n 7 at 572.
[54] Above n 7 at 575.
[55] Rural Litigation
Entitlement Kendra v State of Uttar Pradesh, (1985) 2 SCC 431.
[56] O.P. Malik v State of Uttar Pradesh, 1988 (2) SCALE 522.
[57] Rural Litigation Entitlement Kendra v State of Uttar Pradesh,
(1985) 2 SCC 431 at 438-439.
[58] Rural Litigation Entitlement Kendra v State of UP, 1989 Supp (1)
SCC 504 at 534.
[59] M.C.Mehta v Union of India, (1987) 4 SCC 463 at 482.
[60] M.C.Mehta v Union of India, (1996) 4 SCC 750.
[61] Ibid at 752.
[62] Delhi Janwadi Adhikar Manch, The Order That Felled a City
(February/March 1997) at 5.
[63] Above n 60 at 769.
[64] Above n 60 at 760.
[65] Above n 60 at 770.
[66] Industrial
Disputes Act 1947, s 25-F
25-F. Conditions precedent
to retrenchment of workmen.- No workman employed in any industry who has been
in continuous service for not less than one year under an employer shall be
retrenched by that employer until-
(a) the workman has been
given one month's notice in writing indicating the reasons for retrenchment and
the period of notice has expired, or the workman has been paid in lieu of such
notice, wages for the period of the notice;
(b) the workman has been
paid, at the time of retrenchment, compensation which shall be equivalent to
fifteen days' average pay for every completed year of continuous service or any
part in excess of six months; and
(c) notice in the prescribed manner is
served on the appropriate Government or such authority as may be specified by
the appropriate government by notification in the Official Gazette.
[67] Workers of M/S Rohtas
Industries v M/S Rohtas industries LTD, 1987 (2) SCALE 79.
[68] National Textile Workers’
Union v P.R. RamaKrishnan, (1983)
1 SCC 228.
[69] Gaurav Jain and Supreme Court Bar Association v Union of India,
(1998) 4 SCC 270 at 275.
[70] The Supreme
Court Rules 1966, Order XXXV rule 10(1)
10. (1) Unless the Court
otherwise orders, the rule nisi
together with a copy of the petition and of the affidavit in support thereof
shall be served on the respondent not less than twenty-one days before the
returnable date. The rule shall be served on all persons directly affected and
on such other persons as the Court may direct.
[71] S.P. Sathe ‘Judicial
Activism (III) Growth of Public Interest Litigation: Access to and
Democratisation of the Judicial Process’, (1999) Vol.XI, No. 1 Journal of
Indian School of Political Economy 1 at 9-10.
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