State of Himachal Pradesh Vs. A Parent
of a Student of Medical College. Simla & Ors [1985] INSC 86 (11 April 1985)
BHAGWATI, P.N. BHAGWATI, P.N.
SEN, AMARENDRA NATH (J) MISRA RANGNATH
CITATION: 1985 AIR 910 1985 SCR (3) 676 1985
SCC (3) 169 1985 SCALE (1)758
CITATOR INFO: R 1986 SC 847 (34) RF 1989
SC1899 (23) R 1990 SC1251 (11) R 1990 SC1692 (30) RF 1991 SC1792 (6)
ACT:
Constitution of India 1950 , Articles 32 and
226 Public Interest Litigation Practice & Procedure Courts-Public Interest
litigation-Entertainment of-When arises Letter treated as Writ
Petition-Disclosure of identity of petitioner- Necessity of.
Legislation-Initiation of-Giving of
directions by Court-Validity of.
HEADNOTE:
The Chief Justice of the High Court received
a letter from the guardian of a student of the Medical College in Simla
complaining about the ragging of freshers by senior students within as also
outside the college campus and the hostel. The guardian of the student had
annexed along with the said letter to the Chief Justice , a letter received by
him from his son. The Division Bench of the High Court presided over by the
Chief Justice treated these two letters as constituting the Memo of Writ
Petition , but directed that these two letters should not be placed on the record
of the proceeding in view of the request made by the guardian that the identity
of the writer should not be disclosed in the proceedings.
The Division Bench registered the two letters
as a Writ Petition , and issued notice to the State Government, and the
Principal of the Medical College. After bearing the respondents the Division
Bench came to the conclusion that the practice of ragging was prevalent in the
Medical College on a noticeable scale and that ragging took the form of
subjecting freshers including female students to inhuman and humiliating
treatment degenerating even into physical violence 677 and that the college
authorities had not been able to effectively control such ragging. It gave
various directions which included a direction to the State Government to
constitute a Committee-Anti-Ragging Committee-to go into the question and make
recommendations in regard to the curative , preventive and punitive measures to
be adopted by the college authorities to control and curb the evil of ragging.
Anti-Ragging Committee recommended that the
State Government could initiate legislation which makes ragging a cognizable
offence an l prescribe punishment commensurate with the crimes committed.
When the matter was taken up again for
hearing the Division Bench directed the State Government to file an affidavit
indicating the action taken on the Report. An affidavit to the effect that the
State Government had 'taken notice of the recommendations to initiate
legislation this behalf if found necessary and so advised," was filed on
behalf of the State Government. The Division Bench further directed the State
Government to initiate legislation against ragging and for this purpose granted
the State Government 6 weeks' time.
In the appeal by the State , to this Court it
was contended that the Court could not give directions to the State Government
to initiate legislation on ragging- Allowing the Appeal.
^
HELD. t. The Division Bench was clearly in
error in issuing a direction to the Chief Secretary to file an affidavit within
6 weeks setting out the action taken by the State Government with a view to
implementing the Committee's recommendation. [684]
2. The direction given by the Division Bench
was really nothing short of an indirect attempt to compel the State Government
to initiate legislation with a view to curbing the evil of ragging. [683C]
3. It is entirely a matter for the executive
branch of the Government to decide whether or not to introduce any particular
legislation. But the Court certainly cannot mandate the executive or any member
of the legislature to initiate legislation , howsoever necessary or desirable
the Court may consider it to be. That is not a matter which is within the
sphere of the functions and duties allocated to the judiciary under the
Constitution. [683E-F]
4. If the executive is not carrying out any
duty laid upon it by the Constitution or the law , the Court can certainly
require the executive to carry out such duty and this is precisely that the
Court does when it entertains public interest litigation. [683F] 678 s. When
the Court passes any orders in public interest litigation , the Court does so
not with a view to mocking at legislative or exhaustive authority or in a
spirit of confrontation but with a view to enforcing the Constitution and the
law , because it is vital for the maintenance of the rule of law that the
obligations which are laid upon the executive by the Constitution and the law
should be carried out faithfully and no one should go away with a feeling that
the Constitution and the law are meant only for the benefit of a fortunate few
and have no meaning for the large number of half-clad half-hungry people of
this country. [684B-C]
6. It is now settled law that this Court
under Article 32 , and the High Courts under Article 226 , can treat a letter
as a Writ Petition and take action upon it. It is not every letter which may be
treated as a Writ Petition by the Supreme Court or the High Court. It is on , y
where a letter is addressed by an aggrieved person or by a public spirited
individual or a social action group for enforcement of the constitutional or
legal rights of a persons who by reason of poverty , disability or socially or
economically disadvantaged position find it difficult to approach the court for
redress that the Supreme Court or the High Court would be justified , nay bound
, to treat the letter as a Writ Petition. There may also be cases where even a
letter addressed for redressal of a wrong done to an individual may be treated
as a Writ Petition where the Supreme Court or the High Court considers it
expedient to do so in interests of justice. This is an innovative strategy
which has been evolved by the Supreme Court. It is a highly effective weapon in
the armoury of the law for reaching social justice to the common man. [684G-H;
685A-C]
7. The Division Bench was , certainly right
in entertaining the two letters as a Writ Petition , but it was wholly in error
in directing that these two letters on which the Division Bench acted should
not be placed on the record of the proceedings and the identity of the guardian
and the student should not be , disclosed. It would be contrary to all canons
of fair play and violative of all principles of judicial propriety and
administration to entertain a Writ Petition without disclosing the identity of
the petitioner, though the court , knows who the petitioner is. [685D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1499 of 1985.
From the Judgment and order dated 18.9.84 of
the High Court of Himachal Pradesh in C.W.P. No. 155/84.
K. Parasaran , Attorney General. A. K.
Ganguli and A.K Chakravorty , for the Appellant.
The Judgment of the Court was delivered by
BHAGWATI , J. This appeal by special leave is directed against 679 two orders
made by a division Bench of the High Court of Himachal Pradesh , one dated 24th
July , 1984 and the other dated 18 September 1984 , in so far as they direct
the Chief Secretary to the Government of Himachal Pradesh to file an affidavit
setting out what action has been taken by the State Government towards
implementation of the recommendation contained in paragraph 16 of the Report of
the Anti-Ragging Committee. The impugned orders are in our opinion wholly
unsustainable and ordinarily we would not have taken time to deliver a reasoned
judgment and merely set aside the impugned orders with a brief observation, but
we think it necessary to state in some detail our opinion in regard to the
directions given in the impugned orders , because we find that this is one of
those few cases which demonstrates what we have often said before that public
interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that under
the guise of redressing a public grievance it does not encroach upon the sphere
reserved by the Constitution to the Executive and the legislature. D It appears
that the Chief Justice of the High Court received a letter dated 4th April ,
1984 , from the guardian of a student of the Medical College in Shimla
complaining about the ragging of freshers by senior students within as also
outside the college campus and the hostel.
The guardian of the student had annexed along
with his letter to the Chief Justice a letter dated 25th March, 1984 received
by him from his son. The Division Bench of the High Court presided over by the
Chief Justice treated these two letters as constituting the Memo of Writ
Petition but directed that these two letters should not be placed on the record
of the proceedings in view of the request made in paragraph 6 of the letter of
the guardian that the identity of the writer should not be disclosed on account
of fear of reprisal and for the self-same reason the Division Bench ordered
that the identity of the student and the guardian should not be disclosed in
the proceedings. The Division Bench treating the two letters as a writ petition
registered them as Civil Writ Petition No. 155 of 1984 and issued notice to the
State Government , the Principal of the Medical College Simla , the Himachal
Pradesh University and the Director of Health Services , Government of Himachal
Pradesh who were arrayed as respondents Nos. 1 to 4. On receipt of the notice
of the Writ Petition , the Government of Himachal Pradesh filed an affidavit
setting out the steps which the H 680 State Government and the college
authorities had taken to check the ragging of freshers by senior students. The
Director of Medical Education-cum-Principal of the Medical College , Simla also
filed an affidavit opposing the admission of the Writ Petition on the ground
that the college authorities had taken various steps for the purpose of curbing
the evil of ragging and in fact had taken action On at least two occasions
awarding punishment to the students who indulged in ragging by suspending them
for a period of 4 to 6 months , The Division Bench , on a consideration of this
material placed before it , came to the conclusion that the practice of ragging
was prevailing in the Medical College , Simla on a noticeable scale and that
ragging took the form of subjecting freshers including female students to
inhuman and humiliating treatment degenerating even - into physical violence
and that the college authorities had not been able to effectively control
ragging with the result that the college administration had lost confidence of
a sizeable section of student , parents and well-wishers as regards its
capacity to deal with the problem of ragging. The Division Bench accordingly
gave various directions which included a direction to the State Government to
constitute a committee consisting of the Vice- Chancellor of the Himachal
Pradesh University and the Secretary to the Government , Health Department ,
interalia , to make "recommendations in regard to the curative, preventive
and punitive measures to be adopted by the college authorities to control and
curb the evil of ragging and the machinery to be set up to enforce these
measures." This Committee which we shall for the sake of convenience refer
to as the Anti-Ragging Committee , was to complete its work and submit its
report within a period of six months from the date of its constitution.
The Anti-Ragging Committee submitted its
Report to the High Court on 26th June , 1984. The Report contained various
recommendations intended to control and curb the ragging of freshers by senior
students in the Medical College and its hostel. We are concerned here with only
one recommendation namely that contained in paragraph 16 of the Report which
was in the following terms:
"In quite a number of States in the
country there are Acts on ragging which make ragging a cognizable offence 681
and prescribe the types of punishment commensurate with the crimes committed.
The Himachal Pradesh Government could be suggested to initiate such a
legislation as early as possible. Pending such a legislation by the State
Government, the University authorities could think of incorporating some
provisions relating to ragging in the relevant ordinance of Discipline in the
Ordinance of the University.
The Division Bench by its order dated 24th
July, 1984 gave directions for implementation of the various recommendations
made in the Report and so far as recommendation contained in paragraph 16 of
the Report was concerned, the Division Bench said: "The Chief Secretary to
the State Government will file an affidavit within a period of 3 months from
the date of receipt of the writ setting out the action proposed to be taken on
the recommendation contained in paragraph 16 (First Part) of the relevant
portion of the Report." Though this direction ostensibly did no more than
call upon the Chief Secretary to inform the Court as to what action the State
Government proposed to take on the recommendations to initiate legislation for
curbing ragging, it was, in fact and substance, intended to require the State
Government to Initiate legislation on the subject. If this direction were
merely an innocuous one intended to inform the court whether the State
Government intended to take any action on the recommendation to initiate
legislation against ragging, no objection could possibly be taken against it,
because it would leave the Government free to decide whether or not to initiate
legislation in regard to ragging without mandatorily requiring the State
Government to do so- But as the subsequent event would show, what the Division
Bench intended to achieve by giving this direction was not just to obtain
information as to what the State Government proposed to do in the matter but to
actually require the State Government to initiate legislation against ragging.
That is why, when the Chief Secretary in deference to this direction filed an
affidavit stating, inter-alia, that the State Government had "taken notice
of the recommendation to initiate legislation in this behalf, if found
necessary and so advised", the Division Bench was not satisfied with this
statement of the Chief Secretary and declined to close the proceeding so far as
this particular aspect was concerned and proceeded, inter-alia, to reiterate in
its order dated 1 8th September 1984:
682 "The Chief Secretary to the State
Government will file an affidavit within a period of 6 weeks from the date of
receipt of the Writ setting out the further action taken in the direction of
the implementation of the recommendation contained in paragraph 16 (First Part)
of the relevant portion of the Report of the Anti-Ragging Committee." When
this direction was given by the Division Bench, it clearly implied that what
the Division Bench wanted the State Government to do was to initiate
legislation against ragging and for this purpose, time of 6 weeks was granted
to the State Government The State Government thereupon preferred the present
appeal with special leave obtained from this Court.
We may point out, even at the cost of
repetition, that the direction given by the Division Bench in its order dated
24th July 1984 and reiterated in its order dated 18th September 1984 was not an
innocuous direction issued merely for the purpose, of informing the Court as to
what the State Governing proposed to do in regard to the recommendation in
paragraph 16 of the Report to initiate legislation against ragging. The
Division Bench would have been certainly justified in enquiring from the Chief
Secretary as to what action the State Government proposed to take in regard to
the recommendation of the- Anti-Ragging Committee to initiate legislation on
the subject of ragging. Such enquiry could have been legitimately made by the
Division Bench for the purpose of obtaining information on a matter which the
Division Bench regarded, and in our opinion rightly, as necessary for
eradicating the evil practice of ragging which is not only subversive of human
dignity but also prejudicially affects the interests of the students and the
discipline in the Campus and no exception could have been taken to it because
it would have left the State Government free to decide whether or not to
initiate any legislation on the subject and not mandatorily required the State
Government to initiate any such legislation. If such only were the purpose of the
direction issued by the Division Bench and the Division Bench did not intend
anything more, the Division Bench would have closed the proceedings when the
Chief Secretary intimated in his affidavit that the State Government would
initiate legislation in this behalf "if found necessary and so
advised". But despite this statement made by 683 the Chief Secretary on
behalf of the State Government, the Division Bench persisted in reiterating its
direction that the Chief Secretary should file an affidavit within a further
period of 6 weeks setting out the further action taken by the State Government
in the direction of implementation of the recommendation contained in paragraph
16 of the Report. This persistence in reiterating the direction to file an
affidavit setting out the action taken by the State Government towards
implementation of the recommendation to initiate legislation against ragging,
clearly shows that what the Division Bench intended was not merely to obtain
information as to what action the State Government proposed to take but to
obligate the State Government to take action by way of initiation of
legislation against ragging. The direction given by the Division Bench was
really nothing short of an indirect attempt to compel the State Government to initiate
legislation with a view to curbing the evil of ragging, for otherwise it is
difficult to see why, after the clear and categorical statement by the Chief
Secretary on behalf of the State Government that the Government will introduce
legislation if found necessary and so advised, the Division Bench should have
proceeded to again give the same direction. This the Division Bench was clearly
not entitled to do. It is entirely a matter for the executive branch of the
Government to decide whether or not to introduce any particular legislation. Of
course, any member of the legislature can also introduce legislation but the
court certainly cannot mandate the executive or any member of the legislature
to initiate legislation, howsoever necessary or desirable the Court may
consider it to be. That is not a matter which is within the sphere of the
functions and duties allocated to the judiciary under the Constitution. If the
executive is not carrying out any duty laid upon it by the Constitution or the
law, the Court can certainly require the executive to carry out such duty and
this is precisely what the Court does when it entertains public interest
litigation. Where the Court finds, on being moved by an aggrieved party or by
any public spirited individual or social action group, that the executive is
remiss in discharging its obligations under the Constitution or the law, so
that the poor and the under privileged continue to be subjected to exploitation
and injustice or are deprived of their social and economic entitlements or that
social legislation enacted for their benefit is not being implemented thus
depriving them of the rights and benefits conferred upon them, the Court
certainly can and must 684 intervene and compel the Executive to carry out its
constitutional and legal obligations and ensure that the deprived and
vulnerable sections of the community are no longer subjected to exploitation or
injustice and they are able to realise their social and economic rights. When
the Court passes any orders in public interest litigation, the Court does so
not with a view to mocking at legislative or executive authority or in a spirit
of confrontation but with a view to enforcing the Constitution and the law,
because it is vital for the maintenance of the rule of law that the obligations
which are laid upon the executive by the Constitution and the law should be
carried out faithfully and no one should go away with a feeling that the
constitution and the law are meant only for the benefit of a fortunate few and
have no meaning for the large numbers of half-clad, half-hungry people of this
country. That is a feeling which should never be allowed to grow. But at the
same time the Court cannot group the function assigned to the executive and the
legislature under the Constitution and it cannot even indirectly require the
executive to introduce a particular legislation or the legislature to pass it
or assume to itself a supervisory role over the law making activities of the
executive and the legislature- We are, therefore of the vie-that the Division
Bench was clearly in error in issuing a direction to the Chief Secretary to
file an affidavit within 6 weeks setting out the action taken by the State
Government with a view to implementing the recommendation contained in paragraph
16 of the Report.
There is also one other error into which the
Division Bench of the High Court seems to have fallen. The Division Bench of
the High Court treated the letter of the guardian of the student along with the
letter addressed to the guardian by the student as constituting a memo of Writ
Petition. This was certainly within the jurisdiction of the High Court to do,
since it is now settled law that this Court under Article 32 of the
Constitution and the High Courts under Article 226 of the Constitution can
treat a letter as a Writ Petition and take action upon it. We may of course
make it clear that it is not every letter which may be treated as a Writ
Petition by the Supreme Court or the High Court. It is only there a letter is
addressed by an aggrieved person or by a public spirited individual or a social
action group for enforcement of the constitutional or legal rights of a person
in custody or of a class or group of persons who by reason of poverty,
disability or sociallity 685 or economically disadvantaged position find it
difficult to approach the court for redress that the Supreme Court or the High
Court would be justified, nay bound, to treat the letter as a Writ Petition.
There may also be cases where even letter addressed for redressal of a wrong
done to an individual may be treated as a Writ Petition where the Supreme Court
or the High Court considers it expedient to do so in the interests of justice.
This is an innovative strategy which has been evolved by the Supreme Court for
the purpose of providing easy access to justice to the weaker sections of
Indian humanity and it is a powerful tool in the hands of public spirited
individuals and social action groups for combating exploitation and injustice
and securing for the under-privileged segments of society their social and
economic entitlements. It is a highly effective weapon in the Armour of the law
for reaching social justice.: to the common man. The Division Bench was,
therefore, certainly right in entertaining the two letters as a Writ Petition
and no exception can be taken to it, but it was wholly in error in directing
that these two letters on which the Division Bench acted should not be placed
on the record of the proceedings and the identity of the guardian and the
student should not be disclosed It is difficult to see how any proceedings can
be entertained by the Court keeping the petitioner before it anonymous or his
identity secret. If the identity of the petitioner is not disclosed, how would
the respondent against whom relief is sought ever he able to verify the
authenticity of the petitioner and the credibility of the case brought by him.
It would be contrary to all canons of fair
play and violative of all principles of judicial propriety and administration
to entertain a Writ Petition without disclosing the identity of the petitioner,
though the court knows who the petitioner is. We are, therefore, of the opinion
that the procedure adopted by the Division Bench was wrong and the Division
Bench was not justified in directing that the two letters on which action was
initiated by the Division Bench should not be kept in the record of the
proceedings and that the identity of the guardian and the student should not be
disclosed.
We accordingly allow the appeal and set aside
the orders dated 24th July, 1984 and 18th September, 1984 in so far as they
direct the Chief Secretary to file an affidavit setting out the action taken by
the State Government in implementing the recommendation contained in paragraph
16 of the Report of the Anti-ragging Committee. There will be no order as to
costs of the appeal.
N.V.K. Appeal allowed.
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