I thank V. Venkatesan for drawing my attention towards recent columns in the Business Standard by MJ Antony, several of which relate to ongoing legal developments in India. A month or so ago, Antony wrote a column titled ‘The Split Within’ focusing on an interesting debate about the limits of judicial activism between Justices S.B. Sinha and M. Katju. This disagreement among sitting judges of the Supreme Court (something which is increasingly rare in recent times) occured while a two-judge bench was seeking to decide the case of State of U.P. v. Jeet S. Bisht (decided on 18th May 2007). Antony’s article is now behind a subscription wall, and cannot be accessed for free. However, the judgment in the Bisht case is available on JUDIS (see links below), and I will post about it in the near future. I recommend reading the case to others on the blog, because it presents some fascinating issues, and resulted in a genuine, fairly contentious debate among Justices Katju and Sinha. Because of the inability of the judges to agree on how the case should be decided, it will be assigned to another bench, and it remains alive, which is an independent reason to study the case. The full text of Justice Katju’s judgment in the case is available here, while the text of Justice Sinha’s equally spirited response is here. I invite readers and other contributors to read the judgments and offer comments and reactions.
In a separate article published in yesterday’s issue, Antony focuses on some PIL cases decided by the Supreme Court in the first few days after it reopened following the summer vacation break:
|“The first week after the summer recess showed how varied and bizarre are the subjects dealt with by the court in [recent] PILs.|
|On the first day itself, the court delivered the judgement in a case, General Insurance Council vs State of Andhra Pradesh. It was in the nature of a PIL, as it sought a direction to the state governments to implement Section 158(6) of the Motor Vehicles Act. If this is taken as a precedent, petitions could flood the courts seeking the enforcement of the various provisions of hundreds of Acts. We are the most over-legislated country with a record for ignoring laws after they are passed by the legislature.|
|The General Insurance Council stated before the court that Section 158(6) cast an obligation on police officers to forward reports about death or bodily injuries sustained in road accidents to the claims tribunal and the concerned insurance company immediately. However, this is not done in practice. As a result, 1.5 million such cases are pending before various courts. Since such reports are not forwarded within a reasonable time, investigation and verification of claims become difficult. It becomes easier to fabricate evidence, make exaggerated claims and commit fraud. Insurance companies suffer on account of the higher claims and cost on account of the delay in the adjudication of claim petitions.|
|It is difficult not to sympathise with the insurance companies. But what can the courts do in such instances of total abdication of responsibility by the executive authorities? Observing that there was no justifiable reason as to why the legal requirements are not followed, the court passed the following directions: “All the state governments shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158(6). Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case of non-compliance, appropriate action shall be taken against erring officials.” Such directions are superfluous as the law is already there and the court orders help little to improve the current mindset. They will go the same way as the judgements banning smoking, littering and spitting in public and prescribing norms to improve the chaotic public transport system in the national capital.|
|Another judgement of the same genre, PUCL vs Union of India, asked the state governments to make operational 2.72 lakh anganwadis funded by the central government. It would seem that the governments need orders from the Supreme Court to do their duty.|
|The Supreme Court then delivered another judgement in what it called ‘private interest litigation’. In this case, National Council for Civil Liberties vs Union of India, it was alleged that Narmada dam activist Medha Patkar was motivated by foreign funds and her financial sources should be investigated by the CBI. The court stated that the petition was filed to discredit and diffuse her agitation for rehabilitation of the displaced persons from the dam site before submergence of their habitat. She appeared to be genuinely concerned with the issues. The judgement also said that the petition, without any evidentiary support, was filed out of a grudge harboured by one V K Saxena against Medha Patkar.|
|Then there is a maverick bunch of petitioners who are trouping to the courts with frivolous prayers. The count for the past week was more than 20. Their prayers included the following: India should be renamed Hindustan; the Arabian Sea should be called Sindhu Sagar; the national anthem Jana Gana Mana should be replaced by the one offered by the petitioner (and partly sung before the Chief Justice); the Prime Minister should be summoned to the court to respond to these requests; and so on.|
|When the PIL movement was conceived in the late seventies, it was meant to help those who could not approach the courts because of illiteracy, backwardness or inability caused by detention or social conditions. Prisoners, women in distress and children in bondage were some of the genuine beneficiaries. However, now even passengers angry at the delayed departure of planes or congestion charges dash to the courts with PILs. There is a department in the Supreme Court which receives hundreds of such complaints. They vet these petitions before placing them before the court. The hearings of the past week show that the PILs need tighter regulation in the back office.”|
Antony’s column echoes arguments and concerns raised even by those who have in the past been sympathetic to, and ardent promoters of, PIL, including Prashant Bhushan and former Chief Justice Verma. The Supreme Court has for over two decades highlighted the need for regulating PIL carefully to ensure that it remains wedded to legitimate purposes. Antony’s concluding comment is bluntly critical of the PIL division of the Supreme Court’s Registry which vets PIL petitions.
I am not sure, however, if the remedy for the problem he presents is simply requiring Registry officials within the PIL unit to be more stringent. That would vest a great amount of discretion in registry officials, which would, in the absence of clear guidelines as to how that discretion is to be exercised, lead to other, equally serious problems. Part of the reason why PIL has had such a multi-faceted character and unpredictable trajectory is because efforts to rein in or guide the direction of PIL have not met with much success, whether they were initiated by individual judges within the Supreme Court or by people within government who were unhappy with particular trends in PIL cases. Some of us may consider that to be a good thing in general, but these cases do point to the need for some kind of intervention by Judges of the Supreme Court (and not registry officials) to lay out broad guidelines on the limits of PIL petitions that can be entertained.
Update, 3.30 pm: I’ve added links to the full text of the judgments in the Bisht case, which are available on JUDIS, for those who might want to read the case.
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