TR Andhyarujina (who, as noted in this post, has written insightfully about PIL in the past) has an excellent column in today’s Indian Express which provides an objective assessment of the much-discussed ruling in the Aravali Golf Club case. He points out why the Mathur-Katju bench is right in raising its concerns, as well as the problems with the way it has done so. In doing so, he provides a lot of historical context which is worth recalling as this issue continues to be debated. The whole piece is an illuminating read. Here is how he ends: The admonition of the two judges of the Supreme Court may cause problems in the PIL jurisdiction being exercised by high courts. Propriety required that the judges should not have commented on pending cases in the Delhi High Court as they have done. There are other areas in public interest litigation, which are still the legitimate function of courts which the recent judgment does not address and cannot be considered as hands-off for courts. How are courts, particularly the high courts, to exercise this jurisdiction now? One suggestion is that a larger bench of the Supreme Court should lay down authoritative criteria of the permissible and impermissible judicial interventions. Some time in 1983, a bench of the Supreme Court did make such a reference to a larger bench, but it remained in cold storage. To distil judicial power by rigid rules of conduct is not advisable but it may at least guide the future course of the action of courts in the vast and amorphous jurisdiction assumed by them in the name of judicial activism. Here, Andyarujina recalls a quarter-century old precedent for this episode: in Sudipt Mazumdar v. Union of India, (1983) 2 SCC 258), a two-judge bench comprising Justices ES Venkataramaiah and S. Fazl Ali, created a minor furore during the early days of PIL when they passed an order raising fundamental questions about the new PIL jurisdiction being exercised by the Court. Here is part of that (in)famous order: The following questions arise for consideration in the writ petition : 1. Should this Court take notice of such letters addressed by individuals by post enclosing some paper cuttings and take action on them suo motu except where the complaint refers to deprivation of liberty of any individual ? 2. Should such letters be sent to the Supreme Court Legal Aid Society by the Registrar with a request to examine whether there is any prima facie case which requires to be considered by this Court and if it is felt that there is such a case to file a formal petition against appropriate parties after collecting necessary material ? 3. Can a stranger to a cause, be he a journalist, social worker, advocate or an association of such persons initiate action before this Court in matters alleged to be involving public interest or should a petitioner have some interest in common with others whose rights are infringed by some governmental action or inaction in order to establish his locus standi to make such a complaint ? 4. (a) Can this Court take action on such letters though there is no prima facie case of infringement of any fundamental right ? (b) Even in cases where a fundamental right is stated to have been infringed, can this Court take action on such letters where there is no allegation that the person concerned is kept in illegal custody ? 5. Can this Court take action on such letters in matters for which remedy can be had in ordinary civil, criminal or revenue courts or other offices on the ground that a number of people are affected ? To be precise, if the complaint contains an allegation of encroachment of lands of one group or tribe by another group or tribe, can this Court direct the District Magistrate or the District Judge to enquire into the matter and to make a report to this Court ? Or should the parties be given necessary legal aid and referred to a local court having jurisdiction over the matter ? 6. Can this Court take action on letters addressed to it where the facts disclosed are not sufficient to take action ? Should these letters be treated differently from other regular petitions filed into this Court in this regard and should the District Magistrate or the District Judge be asked to enquire and make a report to this Court to ascertain whether there is any case for further action ? 7. If after investigation, it is found that by such a letter a baseless complaint had been made, should not costs be imposed on the person who had written it? Can he be treated differently from others? 8. Should a petitioner who has an interest in common with others whose rights are alleged to have been infringed be exempted from paying court fees and from all other relevant rules of the Supreme Court when he writes a letter to this Court complaining about such infringement? Should all the relevant rules be suspended when a complaint is made through a letter? 9. If this Court can take action on such letters in such informal way, why should not the High Courts and other courts, authorities and officers in India also act in the same way in all matters? 10. Would such informality not lead to greater identification of the Court with the cause than it would be when a case involving the same type of cause is filed in the normal way? Since these and other important questions arise for consideration in the above case, we feel that this case should be placed at this stage itself before the Constitution Bench to give proper guidelines on the various issues involved in it. Clearly, some of these questions are still relevant, a quarter-century on. However, as Andhyarujina notes, these questions were never addressed by the Supreme Court, even though Justice Venkataramaiah went on to become Chief Justice, and theoretically had the power to convene a Constitution Bench to focus on these issues. The question is whether the issues raised in the Aravali Golf Club ruling will meet the same fate as those outlined in the Mazumdar case. Today’s Express carries a report which states that CJ Balakrishnan has decided to take up the issues raised by the Mathur-Katju bench for consideration. The report in the Hindu carries more details, and also quotes from the order of the Sinha-Bedi bench which referred the case to the CJI pursuant – and as a somewhat petulant reaction – to the Mathur-Katju order. The news-reports indicate that the CJI has posted the matter to February 2008. The immediate effect of this intervention by the CJI is to forestall further debate on the Aravali Golf Club ruling, and to provide some certainty, while also putting an end to the criticism of judicial adventurism. The message sent out, at least for now, is that both the Supreme Court and the High Courts can continue to admit and rule on PILs. This would also seem to take care of the concerns expressed by Andharujina in the extract quoted above.
There is, however, reason to doubt whether the Supreme Court will actually follow up on this seeming promise. Note that the matter has not been placed before a Constitution Bench, but will be decided by a three-judge bench, which may or may not directly address all the issues raised by the Mathur-Katju bench while deciding upon the facts before it. The ruling of a three-judge bench will not, in any event, carry the authoritative effect of a decision of a Constitution Bench. This therefore seems more like an attempt to soothe the feathers ruffled by the Mathur-Katju order, rather than a genuine effort to address the substantial questions raised in it. This may be because the questions raised both in Mazumdar and the Aravali Golf Club case are extremely difficult ones to answer. Furthermore, it may well be in the institutional interest of the Supreme Court to avoid giving precise answers to these questions. As Pratap Mehta has argued, ambiguity on these questions actually enhances the power of the Court. We will have to wait for a few months to find out what happens as a result of this extraordinary ruling. Andhyarujina’s piece is to be contrasted with Barkha Dutt’s rambling, muddled piece on the same case in the HT. While she too provides interesting background context (especially on the political sensibilities which inform reactions to the case), her analysis of the legal issues involved (as well as their historical context) leaves much to be desired. Take the following paragraph: Those who are impatient with an activist judiciary have caricatured it as the first refuge of the lazy liberal. And, admittedly, there has been an aggressive infiltration by the PIL-happy NGO army into the once robust world of high-minded law. Often, these petitions are absurd. Moreover, in a country where there is a backlog of 40,000 cases in the Supreme Court alone (and another 25 million in the lower courts) they are also a waste of valuable time and money. So, for the Punjab and Haryana High Courts to get involved in the internal workings of whether a golf club should create a driver’s post for a gardener is indisputably ludicrous. This analysis betrays a fundamental misunderstanding of the Aravali Golf ruling, which was not a PIL, but a case initiated by justifiably disgruntled maalis. The P & H High Court was required to “get involved in the internal workings” of the Golf Club. Here is how the Mathur-Katju bench describes the facts of the case (see paras 4-5 of the judgment): The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs (respondents in this appeal) were appointed as Mali (gardener) in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was no post of tractor driver in the employers establishment. However for a number of years they continued to be paid wages for the post of Mali. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and not as tractor driver. When despite representations their grievance was not redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. (Emphasis mine). There is nothing “indisputably ludicrous” about the merits of the case filed by the maalis. While the single judge may have been somewhat injudicious in drafting his order, his action is not without precedent – courts very often require government departments to make adjustments to the designations and service perks where their actions are seen as giving rise to such expectations in employees. The maalis working in the Aravali Golf Club did have some cause to argue that they had been treated less than ideally by the Golf Club, and hence by the government. That is why Andhyarujina refers to the case as “a minor case.” Indeed, as Bibek Debroy points out in his column analyzing this ruling, “It is conceivable to think of situations where natural justice might require such an order.” I cannot help thinking that the Mathur-Katju bench made a miscalculation in choosing the case where it decided to take its stand. Their “unprecedented” call for a change might have had more persuasive effect if they had chosen a better vehicle to demonstrate the merits of their attack on judicial adventurism.