Sheela
Barse Vs. Union of India & Ors [1988] INSC 249
(29 August 1988)
Misra
Rangnath Misra Rangnath Dutt, M.M. (J)
CITATION:
JT 1988 (3) 15
ACT:
Constitution
of lndia, Art 32-Public Interest Litigation- With - drawal of Petition by
petitioner-in- person not allowed-No litigant can be permitted to impose any
condition for his participation in the proceedings-- Petitioner may be allowed
to withdraw himself from the proceedings-Information relating to the case
gathered by the petitioner during pendency of the proceedings-Petitioner not
entitled to use such information after with drawal/deletion of his name from
the case.
%
Contempt of Courts Act, 1971-Sec. 2(c)-Delay in final disposal of public
interest litigation-Criticism of-High lighting public accountability of
courts-Whether contempt of court.
HEAD NOTE:
The
petitioner had filed a Writ Petition (Criminal) No. 1951 of 1985 in the Supreme
Court praying that the respondents-States be directed:
(a) to
release all children detained in the jails in the respondent-States ;
(b) to
furnish 'complete information respecting all children detained in the States
and the circumstances and the legal facts of such detention and the number of
available juvenile courts and children homes;
(c) to
appoint district judges of the districts to visit jails, sub-jails and lock-ups
to identify and release children in such illegal detention;
(d) to
requisition immediately necessary buildings and provide infrastructure and make
immediate interim arrangements for `places of housing' of children sought
directions to the respective States, Legal. Aid Boards, District Legal Aid
Committees through the appointment of ` duty_counsel' to ensure protection of
the right of the children etc.
The
said petition was treated as a public interest litigation and in regard to most
of the areas covered by the aforesaid prayers, orders were made from time to
time by this Court. However, being dissatisfied with the progress of the case,
the petitioner preferred a Misc. Petition for leave to withdraw the main public
interest litigation on the PG NO 643 PG NO 644 grounds:
(1)
that the Supreme Court has become "dysfunctional" in relation to, and
in the context of the gravity of the violations of the rights of children and
the urgency of the requisite remedial steps and that though the proceedings
were listed for final disposal in the month of November, 1986 however, owing to
unjustified adjournments obtained by the respondents and owing further, to the
functional deficiencies of the procedure of this court the proceedings have not
yet been finally disposed of;
(2) that
the Court has not been able to exact prompt compliance with its own orders and
directions, issued from time to time, from the respondents;
(3)
that the applicant is disabled from conducting proceedings with
"dignity" as certain happenings in Court had the effect of casting
and tended to cast a slur on her integrity and dignity: and
(4) that
the proceedings were brought as a "voluntary action" and that
applicant is entitled to sustain her right to be the
"petitioner-in-person" in a public interest litigation and that the
proceedings cannot be proceeded with after delinking her from the proceedings.
Dismissing
the criminal miscellaneous petition,
HELD:
(1) The permission to withdraw the main petition is refused and it is directed
that the applicant be deleted from the array of parties in this proceeding. The
proceedings shall now be proceeded with a direction to the Supreme Court Legal
Aid Committee to prosecute the petition together with the aid and assistance of
such persons or agencies as the Court may permit or direct from time to time.
[667B-C] 1(ii) The order dated 5.8.1986 and I3.8.1986 forbidding the applicant
from using the information collected by her during her visits to jails and
other custodial institutions cannot he modified during the pendency of the
proceedings as the information was gathered for purposes of the case and
pursuant to the directions of this Court. [667D] 2(i) The "rights" of
those who bring the action on behalf of the others must necessarily be
subordinate to the "interests" of those for whose benefit the action
is brought. [652C] 2(ii) In a public interest litigation, unlike traditional disputeresolution-mechanism,
there is no determination or adjudication of individual rights. While in the
ordinary conventional adjudications the party-structure is merely bi-polar and
the controversy pertains to the determination of the legal-consequences of past
events and the remedy is essentially linked to and limited by the logic of the
array of the parties, in a public interest action the PG NO 645 proceedings cut
across and transcend these traditional forms and inhibitions. The compulsions
for the judicial innovation of the technique of a public interest action is the
constitutional promise of a social and economic transformation to usher-in an
egalitarian social-order and a welfare-State; Effective solutions to the
problems peculiar to this transformation are not available in the
traditional-judicial-system. The proceedings in a public interest litigation
are, therefore, intended to vindicate and effectuate the public interest by
prevention ot violation of the rights, constitutional or statutory, of sizeable
segments of the society, which owing to poverty, ignorance, social and economic
disadvantages cannot themselves assert-and quite often not even aware of-those
rights. The technique of public interest litigation serves to provide an
effective remedy to enforce these group-rights and interests. In order that
these public causes are brought before the courts, the procedural techniques
judicially innovated specially for the public interest action recognises the
concomitant need to lower the locus- standi-threshoIds so as to enable
public-minded citizens or social-action-groups to act as conduits between these
classes of persons of inherence and the forum for the assertion and enforcement
of their rights. The dispute is not comparable to one between private-parties
with the result there is no recognition of the status of a Dominus- Litis for
any individual or group of individuals to determine the course of destination
of the proceedings, except to the extent recognised and permitted by the court.
[651E-H;
652A-C] 2(iii) What corresponds to the stage of final disposal in an ordinary
litigation is only a stage in the proceedings. There is no formal, declared
termination of the proceedings. The lowering of locus-standi-threshold does not
involve the recognition or creation of any vested-rights on the part of those
who initiate the proceeding, analogus to Dominus-Litis.[652H;653A]
3.
Unduly harsh and coercive measures against the states and the authorities might
themselves become counter- productive. In the matter of affirmative-action the
willing cooperation of the authorities must, as far as possible, be explored.
If the proceedings are allowed to be diverted at every stage into
punitive-proceedings for non-compliance,the main concern and purposes of the
proceedings might tend to be over-shadowed by its incidental ramifications. The
coercive action would, of course, have to be initiated if persuasion fails.
[660C-D] In the instant case, the Court's orders dated 15.4.86, 12.7.86.
5.9.96, 13.8.86 and 21.11.86, show that certain PG NO 646 important and
far-reaching actions were initiated and appropriate directions were issued to
the States and authorities concerned. The first ground, therefore, does not
justify the withdrawal of this public interest Litigation.
If the
Court acknowledges any such status of a Dominus-Litis to a person who brings a
public interest litigation, it will render the proceedings in public interest
litigations vulnerable to and susceptible of a new dimension which might, in
conceivable cases, be used by persons for personal-ends resulting in prejudice
to the public-weal.
[653F-G;662H;
663A-B] 4(i) The concept of public accountability of the judicial system is,
indeed, a matter of vital public- concern for debate and evaluation at a
different plane. But, for that reason courts of law, in their actual day-to-day
judicial work, cannot allow the incantations and professions of these
principles to enable parties to judicial- adjudications to constitute
themselves the overseers of the judicial performance and accountability in the
individual- case in which they are immediately concerned and permit themselves
comments and criticism of the judicial-work in the particular case. [661F,G-H;662A]
4(ii) While comments and criticisms of judicial- functioning, on matters of
principle, are healthy aids for interspersion and improvement, the criticism of
the functioning of the Court in the course of and in relation to a particular
proceeding by the parties to it borders on a conduct intended or tending to
impair the dignity, authority and the functional-disposition of the court. It
is, therefore thought important to maintain respect and dignity ot the courts
and its officers whose task is to uphold and enforce the law because without
such respect, public faith in the administration of justice would be undermined
and the law itself would fall into disrespect. [662B-C] 4(iii) This is not to
deny the broader right to criticise the systemic inadequacies in the larger
public interest. It is the privileged right of the Indian citizen to believe
what he considers to be true and to speak-out his mind, though not, perhaps,
always with the best of testes;
and
speak perhaps, 'with greater courage then care for exactitude. Judiciary is not
exempt from such criticism.
Judicial
institutions are. and should be made, of stronger stuff' intended to endure and
thrive even in such hardy climate. [662F-G] In the instant case, there is no
justification to the resort to this freedom and privilege to criticise the
proceedings during their pendency by persons who are parties and participants
therein. [662G-H] PG NO 647 5(i) Even the humblest citizen of the land,
irrespective of his station in life, is entitled to present his case with
dignity and is entitled to be heard with courtesy and sympathy, Courts are
meant for, and are sustained by, the people and no litigant can be allowed to
be looked upon as a supplicant or an importuner. [663C-D] 5(ii) The parties who
seek justice at the hands of the court are neither its subordinates or
subsidiaries. But the notion of an equal participation, in its practical applications,
presents difficulties and cannot be stretched to the point where the court
could share the responsibility, and the powers that go with it, of regulating
the proceedings of the court with any of the parties before it.
In the
existing system. the parties who seek recourse to courts have to submit
themselves to the jurisdiction and discipline of the court. Their conduct, in
relation to the proceedings. is liable to be regulated by the court. This is
not a matter of expression or assertion of any superiority but is merely a
necessity and a functional-imperative- [666B-C] In the instant case, keeping in
view the facts and circumstances or the case, the second ground of withdrawal
is wholly insubstantial and proceeds on what appear to be certain subjective
susceptibilities of the applicant which, to the extent they are irreconcilable
with the discipline of the court, cannot be countenanced. [666D] 6(i) The
contention, that applicant is entitled to sustain her right to be the
"petitioner-in-person"-in a public interest litigation and that the
proceedings cannot be proceeded with after de-linking her from the proceedings
cannot be accepted. Any recognition of any such vested right in the persons who
initiate such proceedings is to introduce a new and potentially harmful element
in the judicial administration of this form of public law remedy. That apart,
what is implicit in the assertion of the applicant is the appropriation to
herself of the right and wisdom to determine the course the proceedings are to or
should take and its pattern. This cannot be recognised. [666E-G] 6(ii) No
litigant can be permitted to stipulate conditions with the court for the
continuance of his or her participation. [667A]
7. The
initiation of a public interest litigation or proceedings for issue of a writ
of Habeas Corpus on the basis of letters reflects and symbolises the Court's
anxiety to relax the rigour of formal pleadings. However, in proceedings which
are already initiated and are pending it world be inappropriate for a party to
the proceedings to address letters directly to the Judges. What is sought to be
PG NO 648 brought to the notice of the Court should,as far as possible, be
filed in the Registry for being placed before the appropriate bench or
submitted in the open court. There might be extra-ordinary circumstances when a
party is compelled to resort to the expedience of a letter or a telegram. Even
in such a case, it would be appropriate to address them to the Registry to be
placed before the appropriate bench. The difficulties arising out of such
direct-communications are too obvious to require any elaborate discussion,
[664E-G]
ORIGINAL
JURISDICTION: Criminal Misc. Petition No. 3128 of 1988.
IN
Writ Petition (Criminal) No. 1451. of 1985.
(Under
Article 32 of the Constitution of India.) Petitioner-in-person.
P.A. Chaudhary,
S.B. Bhasme, V.C. Mahajan, Tapash Ray, Swaraj Kausal, Probir Choudhary, K. Ram
Kumar, K. Ram Mohan, K.R. Nambiar, A.S. Bhasme, C.V.S. Rao, Girish Chandra, Kailash
Vasdev, J.R. Dass, D.K. Sinha, A.V. Rangam, T.V. Ratna, A. Subba Rao, Ranjan Mukherji,
D.N. Mukherjee, R.S. Sodhi, T. Sharma, M. Veerappa, A.S. Nambiar, P.K. Manohar,
Mrs. H. Wahi, Dalveer Bhandari, Mahabir Singh, P.R. Ramasesh, A.K. Sanghi Ms. Kamini
Jaiswal, D.K. Sinha, J.R. Das, Ms. A. Subhashini, R.B. Misra, S.K. Bhattarcharya,
Mrs. Urmila Kapoor, and Ms. S. Janani for the Respondents .
The
Order of the Court was delivered by VENKATACHALIAH,J. This Miscellaneous
Petition for leave to withdraw the main public interest litigation is filed
under circumstances which can only be characterised as somewhat unfortunate.
The main petition is brought to highlight the gross violations of the
constitutional and statutory rights of a large number of children in the
country who are suffering custodial restraints in various parts of the country
and for the protection and enforcement of their rights.
It
might clear some possible misconceptions if it is clarified what this order is
not about. The applicant is not, by the force of this order, denied the right
or the PG NO 649 opportunity of instituting any public interest litigation nor
is the right of a public-minded citizen to bring an action for the enforcement
of fundamental rights of a disabled segment of the citizenry disputed. The
question agitated relates, on the contrary, to the aspect whether a
public-minded person who brings such an action is entitled, as of right, to
withdraw the proceedings from the court.
Applicant
asserts that this Court cannot refuse leave for withdrawal. The proceedings, it
is contended, are the result of a ''voluntary action of a citizen" and
that, as a corollary, the proceedings cannot be continued except with
applicant's participation. The applicant relies on what she calls "a
citizen's right to be a petitioner-in-person in a public interest
litigation". As stemming from this premise, applicant contends that not
only that leave for withdrawal cannot be refused but also that the main
petition cannot be continued by any other citizen or organisation.
2. No
elaborate arguments are, indeed, necessary to decide a question such as this;
but out of deference to the applicant's submission that the propositions she
propounds in this behalf be considered by the court, we proceed to do so.
3.
Applicant, on certain perceptions and assessment of her own, both as to the
effectiveness and utility of the continuance of the proceedings as well as the
manner of their conduct in and by this court, which according to her, has not
been conducive either to their efficacy or to her participation there in with
"dignity'' seeks leave to withdraw the main petition itself. Figuratively,
this is a `walk-out' of the court. The prayer, if granted, would frustrate the
important issues the main petition has served to high-light in the matter of
the status and enforcement of the laws enacted for the protection and welfare
of the children in the country. The proceedings espouse the cause of a large
number of suffering children who, on account of the traditional inertia against
reform, the bureaucratic and official apathy, insensitivity to and lack of
human consideration for the lot of the suffering children and the lack of
proper perceptions of the values and idealogy of the legislation concerning
children even on the part of law enforcing agencies, are being denied the
protection of their constitutional and statutory rights.
4. It
is not necessary to go into all the averments in the present application. The
board reasons on which the applicant has persuaded herself to make this
somewhat extraordinary request are recognisable in three areas:
PG NO
650 The first is that this court has become "dysfunctional" in
relation to, and in the context of, the gravity of the violations of the rights
of children and the urgency of the requisite remedial steps and that though the
proceedings were listed for final disposal in the month of November, 1986,
however, owing to unjustified adjournments obtained by the respondents and
owing further, to the functional deficiencies of the procedure of this court
the proceedings have not yet been finally disposed of. It is a~so averred that
the court has not been able to exact prompt complainance with its own orders
and directions, issued from time to time, from-the respondents.
The
second area is that the applicant is disabled from conductive proceedings with
"dignity" as certain happenings in court had the effect of casting
and tended to cast a slur on her integrity and dignity.
The
third-this pertains to the claim that no body else can go on with this
litigation-is that the proceedings were initiated as a result of the voluntary
action on the part of a citizen and that that citizen is entitled to withdraw
them. The applicant claims that she as representing "other conscientious
citizens, social workers and activists is duty bound to sustain the citizen?s
right to be petitioners-in- person" and that, therefore, the petition
cannot be continued against the wishes and without the participation of the
applicant.
5. The
applicant's stand on these points are put across, according to the learned
counsel for respondents, in over assertive tone of great severity but of
questionable propriety. But we should not allow to be influenced by this.
The applicants
references to the manner of conduct of the proceedings are certainly
unflattering to the Court. But the concern of this Court for and its
achievements in the field of public interest litigation are open to the public-
assessment; and the assessments even of those immersed in an individual
experience and where objectivity might, episodically, be clouded should also
serve some purpose-of introspection. Though the language employed in relation
to the Court is not conspicuous for its moderation, we may yet examine
objectively the justifiability, if any, for such strong expressions of remonstrance.
6. In
regard to the first area, applicant's grievance had better be set out from her
own application :
"The
petitioner submits that with such an over-whelming confirmation and
reconfirmation of the fact of imprisonment PG NO 651 of children by the State,
the GOI hundreds of DJs as also the reaffirmation of Hussainara Khatoon in one
of the orders in this petition by this Court, were sound grounds for delivering
final judgment in this case in November, 1986." "The then Chief
justice of India who was presiding Judge of the Bench ... .. fixed9.l2.l986 as
the date for delivering final judgment, and 2.12.1986 for confirming that
date." "The petitioner states that she obeyed the Court's order and
arranged the Court's hundreds of files. But the CJ absented himself from the
Court for 3 days to attend an International Judges' meet he had initiated and
convened." "The petitioner states that on 13.12.1986, an hour and
half after opening of the Court, the then Cj informed the petitioner that he
would not be in Court that afternoon hence there can be no final hearing as
scheduled. The petitioner understands that the CJ had to inaugurate some
chambers and the date had been fixed in advance. " The grievance is that
the final disposal of the main petition was not expeditiously done. In a public
interest litigation, unlike traditional dispute-resolution- mechanism. there is
no determination or adjudication of individual rights. While in the ordinary
conventional adjudications the party-structure is merely bi-polar and the
controversy pertains to the determination of the legal- consequences of past
events and the remedy is essentially linked to and limited by the logic of the
array of the parties, in a public interest action the proceedings cut across
and transcend these traditional forms and inhibitions. The compulsions for the
judicial innovation of the technique of a public interest action is the
constitutional promise of a social and economic transformation to usher-in an
egalitarian social-order and a welfare-State. Effective solutions to the
problems peculiar to this transformation are not available in the traditional-
judicial-system. The proceedings in a public interest litigation are,
therefore, intended to vindicate and effectuate the public interest by
prevention of violation of the rights, constitutional or statutory, of sizeable
segments of the society, which owing to poverty, ignorance, social and economic
disadvantages cannot themselves assert- and quite often not even aware of-those
rights. The technique of public interest litigation serves to provide an
effective remedy to enforce these group-rights and PG NO 652 interests. In
order that these public-causes are brought before the Courts, the procedural
techniques judicially innovated specially for the of public interest action recognises
the concomitant need to lower the Locus-standi- thresholds so as to enable
public-minded citizens or social- action-groups to act as conduits between
these classes of persons of inherence and the forum for the assertion and enforcement
of their rights. The dispute is not comparable to one between private-parties
with the result there is no recognition of the status of a Dominus-Litis for
any individual or group of individuals to determine the course:
or
destination of the proceedings, except to the extent recognised and permitted
by the Court. The "rights" of' those who bring the action on behalf
of the others must necessarily by subordinate to the interests,, of those for
whose benefit the action is brought. The grievance in a public interest action,
generally speaking, is about the content and conduct of governmental-action in
relation to the constitutional or statutory rights of segments of society and
in certain circumstances the conduct of governmental-policies. Necessarily,
both the party structure and the matters in controversy are sprawling and amorphous,
to be defined and adjusted or re-adjusted as the case may be ad-hoc, according
as the exigencies of the emerging situations. The proceedings do not partake of
pre-determined private law litigation models but are exogeneously determined by
variations of the theme.
Again,
the relief to be granted looks to the future and is generally, corrective
rather than compensatory which, sometimes, it also is. The pattern of relief
need not necessarily be derived logically from the rights asserted or found.
More importantly, the court is not merely a passive, disinterested umpire or
onlooker, but has a more dynamic and positive role with the responsibility for
the organisation of the proceedings, moulding of the relief and-this is
important--also supervising the implementation thereof. The Court is entitled
to, and often does seek the assistance of expert-panels, Commissioners,
Advisory- committees, Amici etc. This wide range of the responsibilities
necessarily implies correspondingly higher measure of control over the parties,
the subject-matter and the procedure. Indeed as the relief is positive and
implies affirmative-action the decision are not "one-shot"
determinations but have on-going implications. Remedy is both imposed,
negotiated or quasi-negotiated.
Therefore,
what corresponds to the stage of final disposal in an ordinary litigation is
only a stage in the proceedings. There is no formal, declared termination of
the proceedings. The lowering of locus-standi-threshold does PG NO 653 not
involve the recognition or creation of any vested-rights on the part of those
who initiate the proceedings, analogus to Dominus-Litis.
7. The
theme, implicit in the applicants hyper- articulated grievance, is that this
Court has not shown adequate concern for justice in this case. Is this
justified? The record of the proceedings show that even by November, 1986,
directions of far-reaching effect had been issued and very significant
exercises had been initiated.
The
grievance, in the ultimate analysis, is really in the area of non-compliance by
the several States and its authorities with the orders and directions issued by
the Court from time to time in the proceedings.
In
order to appreciate the position, perhaps, it would be relevant to refer to the
prayers made in the main petition and the orders passed from time to time even
prior to a month of November, 1986. The prayer in the main petition was that
this Court should pass order directing the Respondent-States: (a) to release
all children detained in the jails in the respondent States; (b) to furnish
complete information respecting all children detained in the States and the
circumstances and the legal facts of such detention and the number of available
juvenile courts and children homes ; (c) to appoint district judges of the
district to visit jails, sub-jails and lock-ups to identify and release
children in such illegal detention ; (d) to requisition immediately necessary
buildings and provide infrastructure and make immediate interim arrangements
for "places of housing" of children facing trial before juvenile
courts. The petition also seeks directions to the respective states, Legal Aid
Boards, District legal Aid Committees through the appointment of 'duty-counsel'
to ensure protection of the rights of the children etc.
8. In
regard to most of the areas covered by these prayers, orders were made from
time to time by this Court.
The
Court's orders dated 15.4. 1986, 12.7.1986, 13.8.1986, 21.11.1986, show that
certain important and far-reaching actions were initiated and appropriate
directions were issued to the States and authorities concerned. The following
are some of the excerpts of the orders made by this Court:
"This
Writ Petition discloses a disturbing state of affairs with regard to children
below the age of 15 years in jail. It is an elementary requirement of any civilised
society and it has been so provided in various statutes concerning children
that children should not be confined in PG NO 654 jail because incarceration in
jail has a dehumanising effect and it is harmful to the growth and development
of children " . . . . . . We would, therefore, direct the District Judges
in the country to nominate the Chief Judicial Magistrate or any other judicial
magistrate to visit the District Jail and sub Jail in his District for the
purpose of ascertaining how many children below the age of 16 years are
confined in jail, what are the offences in respect of which they are charged,
how many of them have been in detention- Whether in the same jail or previously
in any other jail before being brought to the jail in question, whether they
have been produced before the children's court and if so, when and how many
times and whether any legal assistance is provided to them.
Each
district 3judge will give utmost priority to this direction ......" "
. . . . We would also direct the State Legal Aid & Advise Board in each
State or any other Legal Aid Organisation existing in the State concerned, to
send two lawyers to each jail within the State once in a week for the purpose
of providing legal assistance to children below the age of 16 years who are
confined in jails. If there are any other persons confined in jails who are
there merely because they are suffering from some handicap (physical or
otherwise) they should be released immediately and placed in appropriate home
or place where they can receive suitable medical assistance or other
educational training. '' [Vide order dated 15.4. 1986] "Meanwhile, there
are a few matters which need our urgent directions. It seems that there are a
number of children who are mentally or physically handicapped and there are
also children who are abandoned or destitute and who have no one of take care
of them. They are lodged in various jails in different states . . . . ." "
. . . . The State Governments must take care of this mentally or physically
handicapped children and remove them PG NO 655 to a Home where they can be
properly looked after and so far as the mentally handicapped children are
concerned, they can be given proper medical treatment and physically
handicapped children may be given not only medical treatment but also
vocational training to enable them to earn their livelihood.
Those
children who are abandoned or lost and are presently kept in jails must also be
removed by the State Governments to appropriate places where they can be looked
after and rehabilitated . . . ." " . . . . We would also ask the
Director General, All India Radio and the Director General, Dordarshan to give
publicity requesting non-governmental social service organisations to offer
their services for the purpose of accepting these children with a view to
taking care of them and providing for their rehabilitation in accordance with a
hand-out to be sent by the Registrar of this Court." "There are two
girls in the Julpaiguri District Jail who have been kept in that jail in
"safe custody" One of them is Parbati Dass, aged 8, who has been
detained in jail since
12.
11. 84 and the other is Sabita Sah, aged 10, who has been detained in jail
since 20.8.85 . . . ." .
".
. . . We would accordingly direct that Parbati Dass and Sabita Shah should be
transferred immediately to the Home in Raiketpara as recommended by the
District Judge, jalpaiguri. " [Vide order dated 12.7. 1986] "This
Court directed the District Judges in the country to nominate the Chief
Judicial Magistrate or any other Judicial Magistrate to visit the District Jail
and Sub-Jail in their districts for the purpose of ascertaining how many
children below the age of 16 years are confined in jail, what are the offences
in respect of which they are charged, how many of them have been in
detention-whether in the same jail or previously in any other jail-before being
brought to the jail in question, whether they have been produced before the
children's court and, if so, when and how many times and whether any legal
assistance is provided to them. The Court also directed that each District
Judge PG NO 656 will give utmost priority to this direction and the
Superintendent of each jail in the district will provide full assistance to the
District judge or the Chief Judicial Magistrate or the judicial magistrate, in
this behalf who will be entitled to inspect the registers of the jail visited
by him as also any other document/documents which he may want to inspect and
will also interview the children if he finds it necessary to do so for the
purpose of gathering the correct information in case of any doubt. The District
Judge, Chief Judicial Magistrate or the Judicial Magistrate, as the case may
be, will submit report to this court within 10 weeks from today . . . ."
..................
..................
"Six
further weeks have passed beyond the time indicated in the order dated April 15, 1986, and even till this day analysis
shows that several District Judges have not complied with the direction. This
Court had intended that the reports of the District Judges would be sent to the
Registry of this Court though the Registrars of the respective High Courts.
This obviously meant that the Registrars of the High Courts were to ensure
compliance. We are both concerned and surprised that a direction given by the
apex Court has not been properly carried out by the District Judges who are an
effective instrumentality in the hierarchy of the judicial system. Failure to
submit the reports within the time set by the Court has required adjournment of
the hearing of the writ petition on more than one occasion. We are equally
surprised that the High Courts have remained aloof and indifferent and have
never endeavored to ensure submission of the reports by the District Judges
within the time indicated in the order of this Court. We direct that every
defaulting District Judge who has not yet submitted his report shall unfailingly
comply with the direction and furnish the report by August 31, 1986, through his High Court and the Registrar of every High
Court shall ensure that compliance with the present direction is made. "
PG NO 657 " . . . . We are of the view that the petitioner should have
access to information and should be permitted to visit jails, children's homes,
remand homes, observation homes, borstal schools and all institutions connected
with housing of delinquent or destitute children. We would like to point out
that this is not an adversary litigation and the petitioner need not be looked
upon as an adversary. She has in fact volunteered to do what the State should
have done.
We
expect that each State would extend to her every assistance she needs during visit
as aforesaid. We direct that the Union Government respondent no. 1- shall
deposit a sum of rupees ten thousand for the time being within two weeks in the
Registry of this Court which the petitioner can withdraw to meet her expenses.
We
would like to make it clear that the information which the petitioner collects
by visiting the children's institutions in different States as indicated above
is intended to be placed before this Court and utilised in this case and not
intended for publication otherwise. " [Vide order dated 5th August, 1986] "If a child is a national
asset, it is the duty of the State to look after the child with a view to
ensuring full development of its personality. That is why all statutes dealing
with children provide that a child shall not be kept in jail. Even apart from
this statutory prescription, it is elementary that a jail is hardly a place
where a child should be kept. There can be no doubt that incarceration in jail
would have the effect of drawing the development of the child exposing him to beneful
influences, coarsening his conscience and alienating him from the society. It
is a matter of regret that despite statutory provisions and frequent
exhortations by social scientists, there are still a large number of children
in different jails in the country as is now evident from the reports of the
survey made by the District Judges pursuant to our order dated 15th April,
1986l. Even where children are accused of offences, they must not be kept in
Jails. It is no answer or the part of the State to say that it has lot got
enough number of remand homes or observation homes or other places where
children can be kept and that is why they are lodged in jails. It is also no
answer on the part of the State to urge that the PG NO 658 ward in the jail
where the children are kept is separate from the ward in which the other
prisoners are detained. It is the atmosphere of the jail which has a highly
injurious effect on the mind of the child, estranging him from the society and
breeding in him aversion bordering on hatred against a system which keeps him
in jail. We would therefore like once again to impress upon the State
Governments that they must set up necessary remand homes and observation homes
where children accused of an offence can be lodged pending investigation and
trial. On no account should the children be kept in jail and if a State
Government has not got sufficient accommodation in its remand homes or
observation homes, the children should be released on bail instead of being
subjected to incarceration in jail. " ....................
....................
"
. . . . It is absolutely essential, and this is something which we wish to
impress upon the State Governments with all the earnestness at our command,
that they must set up Juvenile Courts, one in each districts and there must be
a special cadre of Magistrates who must be suitably trained for dealing with
cases against children.
They
may also do other criminal work, if the work of the Juvenile Court is not
sufficient to engage them fully, but they must have proper and adequate
training for dealing with cases against juveniles, because these cases require
a different type of procedure and qualitatively a different kind of approach. "
"We would also direct that where a complaint is filed or first information
report is lodged against a child below the age of 16 years for an offence
punishable with imprisonment of not more than 7 years, the investigation shall
be completed within a period of three months from the date of filing of the complaint
or lodging of the First Information Report and if the investigation is not
completed within this time, the case against the child must be treated as
closed .
If
within three months, the charge sheet is filed against the child in case of an
offence punishable with imprisonment of not more than 7 years, the case must be
tried and disposed of within a further period of 6 months at the PG NO 659
outside and this period should be inclusive of the time taken up in committal
proceedings, if any . . . . ." ".... We would direct every State
Government to give effect to this principle or norm laid down by us in so far
as any future cases are concerned, but so far as concerns pending cases
relating to offences punishable with imprisonment of not more than 7 years, we
would direct every State Government to complete the investigation within a
period of 3 months from today if the investigation has not already ,resulted in
filing of chargesheet and if a charge- sheet has been filed, the trial shall be
completed within a period of 6 months from today and if it is not, the
prosecution shall be quashed." [Vide order dated 13th August, 1986] "In regard to Sub-Jails, no
reports have been received in respect of such jails of 14 districts of Maharashtra.
Though
this matter was listed on 14. 11.1986 for final disposal, an adjournment became
imperative in view of the failure of compliance with the directions in the
manner indicated above and the matter is adjourned till 2. 12. 1986. We direct
the Registrars of the High Courts of the States in which the districts
indicated above are located to ensure compliance with the previous directions
by 30.11. 1986. We hope and trust that special care will be taken to ensure
compliance and this Court will not be forced to take any stringent action. "
[Vide order dated 21st
Nov., 1986]
9. It
is true that with the active and willing co- operation of the respective
States, the progress made in the proceedings would have been far more
substantial. It is also true that several of the States and the authorities
have not, prima facie, realised the seriousness and the magnitude of the
problem. Some states pleaded financial constraints in implementing the
directions.
The
detention and mal-treatment of children in violation of the law is far too serious
a matter to be looked at with any complacence, and unfortunately, a stage has
now been reached where this Court cannot be content with the PG NO 660
expectation of compliance with its orders in these proceedings but would have
to go further and exact it. The States have to be more honest about their
obligations to the delinquent children. Children misbehave because, perhaps,
the society and the elders have, -may be-behaved worse.
Society
is becoming increasingly in hospitable to its weak.
By
ignoring the non-custodial alternatives prescribed by law and exposing the
delinquent-child to the trauma of custodial-cruelty, the state and the society
run the serious risk of losing the child to the criminal clan. This is no more
a matter of concession to the child; but its constitutional and statutory
right.
Even
so, unduly harsh and coercive measures against the states and the authorities
might themselves become counter- productive. In the matter of
affirmative-action the willing cooperation of the authorities must, as far as
possible, be explored. If the proceedings are allowed to be diverted at every
stage into punitive-proceedings for non compliance, the main concern and
purpose of the proceedings might tend to be over-shadowed by its incidental
ramifications. The coercive action would, of course, have to be initiated if
persuasion fails. We are dealing with a large number of states and authorities.
There are 32 respondents, 429 districts in which reports of the District Judges
have been called for and nearly 400 of them have submitted their reports. There
are innumerable jails, sub-jails, remand- homes, custodial-institutions etc.
This court issued notice to the Home-Secretaries of the States to file their
reply by 15-7- 1988 Finally.
The
applicant has complained that "the non-participation of counset has
assumed focal importance to the case" and has also aired a grievance about
the "Court's overwhelming use of discretionary powers to accommodate every
one except the petitioner". The point to note is that learned counsel for
the respondent-States and the applicant arc not in the same position. The
former were accountable to the Court to report compliance by their respective
client-States with the directions issued by the Court. Learned counsel appeared
to have sought extensions of time. Their request might or might-not have been
made with perfect justifications. Grant of their request does not to amount
discriminatory treatment meted out to the applicant who was not in any such
position representing any party who was required to report compliance with the
Court's directions. The two are not comparable positions. Indeed. in January
1988, the case appears to have been adjourned for about six weeks on grounds of
ill-health of the applicant herself. While we understand the concern of the
applicant in regard to the delays occasioned, we are unable to appreciate PG NO
661 the unconcealed, cynical scorn the applicant has permitted to exhibit
towards the process of this Court. Instead of sustaining and strengthening the
process of this Court in what is clearly a sensitive and difficult task of some
importance and magnitude, the applicant has chosen to give herself the role of
a self-appointed invigilator and has made a generous use of that position by
her barbed quips and trenchant comments against the court. By this, we think,
she has done no service either to herself or to the cause she sought to serve.
Scornful impatience can also wreck a mission.
The
attitudes of the applicant is perhaps conditioned and influenced by her own
perceptions of what she considers to be the real and larger-issues- apart from
the immediate problems of the case-involved in the proceedings. Applicant says:
".
. . . . .. . . Therefore, it is important to establish principles of
accountability of the GOI, the States and the Judiciary." " In the
last analysis both the dignity of the Court, the honour of the institution of
judiciary and the effectiveness of judicial process are at stake. " We are
afraid, the references to judicial- accountability, having regard to the
specific-context in which they are made in the context,really mean no more than
that the proceedings are to be conducted in conformity with the standards of
promptitude and dispatch of which the applicant chooses to constitute herself
the judge, to sit in judgment over the alleged short-comings in that behalf.
The concept of public accountability of the judicial system is, indeed, a
matter of vital public-concern for debate and evaluation at a different plane.
All social and political institutions are under massive challenges are
pressures of reassessment of their relevance and utility. Judicial institutions
are no exception. The justification for all public institutions are related to
and limited by their social relevance, professional competence and ability to
promote the common-weal. There is no denying that a debate is necessary and,
perhaps, is overdue.
But
for that reason courts of law, in their actual day- to-day judicial work,
cannot allow the incantations and professions of these principles to enable
parties to judicial-adjudications to constitute themselves the overseers of the
judicial performance and accountabil-ity in the individual-case in which they
are immediately concerned and permit themselves comments and criticism of the
PG NO 662 judicial work in the particular case. The application and its annexures
are replete with statements intended to demostrate the inefficacy of the
proceedings before this Court, disclosing a cynical distrust of its utility and
effec-tiveness. Indeed, while comments and criticisms of judicial-functioning,
on matters of principle, are healthy aids for introspection and improvement,
the criticism of the functioning of the Court in the course of and in relation
to a particular proceeding by the parties to it borders on a conduct intended
or tending to impair the dignity,authority and the functional-disposition of
the court.
10.
The attitude "we call respect for law" says a learned author"is
a complex one". It "may consist for example, in the belief that the
law is democratic and fair and that it contributes to social progress or that
it protects individual rights. They may include pride that the law of one's
country is by and Iarge enlightened and progressive, satisfac-tion that one
lives under the protection of an adequate legal system, respect or even
admiration for institutions or persons involved in creating or administering
the law and for symbols of the law . ...
251].
It is,therefore, thought important to maintain respect and dignity of the
Courts and its officers whose task is to uphold and enforce the law because
without such respect public faith in the administration of justice would be
undermined and the law itself would fall into dis-respect.
What
excites general dissatisfaction with the judicial determi-nations of the Court
also indisposes the minds of litigants to obey them shaking men's allegiance to
law."Laws are not made by Legislatures alone,but by the law abiding as
well; the Statute ceases to embody a law (except in a formal sense) in the
degree that it is widely dis-regarded. "
11.
This is not to deny the broader right to criticise the systemic inadequacies in
the larger public interest.It is the privileged right of the Indian citizen to
believe what he considers to be true and to speak-out his mind, though not,
perhaps, always with the best of tastes; and speak perhaps, with greater
courage than care for exactitude. Judiciary is not exempt from such criticism.
Judicial
institution are,and should be made, of stronger stuff intended to endure and
thrive even in such hardy climate. But we find no justification to the resort
to this freedom and privilege to criticise the proceedings during their pendency
by persons who are parties and participants therein.
12.
The first ground, therefore, does not justify the withdrawal of this public
interest litigation. If we PG NO 663 acknowledge any such status of a Dominus-Litis
to a person who brings a public interest litigation, we will render the
proceedings in public interest litigations vulnerable to and susceptible of a
new dimension which might, in conceivable cases,be used by person for
personal-ends resulting in prejudice to the public-weal.
13 The
second ground for withdrawal is no better. The ground is that the applicant, in
view of what transpired in the two immediately preceding dates of hearing of
the case, is unable to prosecute the proceedings with dignity" and that,
therefore, the applicant is entitled to withdraw the proceedings. There is, and
can be, no dis-agreement with the principles that even the humblest citizen of
the land, irrespective of his station in life, is entitled to present his case
with dignity and is entitled to be heard with courtesy and sympathy.Courts are
meant for and are sustained by, the people and no litigant can be allowed to be
looked upon as a supplicant or an importuner.It is, unfortunate that the
applicant claims that there was any shortcom-ing in this behalf in her case. We
regret that there should at all have been any occasion for this. Let us see
whether there is any real justifi-cation for this.
At one
of the hearings of the case, the Court had occasion to point out to the
applicant who was not present in Court at the com-mencement of the hearing and
who sought to interrupt the submissions of Shri Bhasme, learned Senior Counsel,
who was on his legs, that she having been absent at the commencement of the
proceedings could not interrupt the proceedings. It is the practice of courts
that when parties-in-person or even learned counsel who were not initially
present but seek to participate in the proceedings, a formal submission is made
to the court in that behalf. This is nothing more than a matter of courtesy and
decorum. As the applicant straight away sought to interrupt the learned counsel
who was on his legs, she was told of the impropriety. Her re-action to this as
set out in the application is this:
"The
petitioner states that she arrived in Court just 40 seconds after her case was
called." The petitioner states that Mr. Bhasme Counsel for Maharashtra, had just started his argument that
as the counsel for Maharashtra, he found himself with papers of Himachal
Pradesh. He said that in the absence of correct documents not being available
to him, and the Home Secretary, they be allowed an adjournment of 12 weeks.
PG NO
664 "The petitioner states and submits that she had a right to reply to
Mr. Bhasme's outlandish argument. The petitioner states and submits that she
come to the Court as a responsible citizen at her personal cost. She is not a
paid professional...." The question was not of the right of the applicant
to make such submissions as she considers appropriate but one of the manner of
its exercise. But the applicant does not seem to appreciate this. Indeed she
did exercise her right and made a strong criticism of Sri Bhasme's submissions.
14.
The court also had occasion to point out to the applicant the impropriety of
addressing communications to Judges by postal letters in regard to the pending
cases or on matters bearing on them. The re-action of the applicant which has
been set out in strong assertions is, again, that she is entitled to address
such communications and in para 7(b) of her written submissions relies on the
position, inter alia, that letters to the Courts have been the basis of many
public interest litiga-tions; that applicant was not a private litigant and got
no benefit from the letters she wrote, that Judges were themselves inviting the
citizens to write to the Court etc. What this argument over-looks is that the
initiation of a public interest litigation or proceedings for issue of a writ
of Habeas Corpus on the basis of letters reflects and symbolises the Court's
anxiety to relax the rigour of formal pleadings.
However,
In proceedings which are already initiated and are pending it would be
inappropriate for a party to the proceedings to address latters directly to the
Judges. What is sought to be brought to, the notice of the Court should, as far
as possible be filed in the Registry for being placed before the appropriate
bench or submitted in the open court.
There
might be extra-ordinary circumstances when a party is compelled to resort to
the expedience of a letter or a telegram Even in such a case, it would be
appropriate to, address them to the Registry to be placed before the
appropriate bench. The difficulties arising out of such direct-communications
are too obvious to require any elaborate dis-cussion. The opposite parties
would not have had the benefit of the information contained in the
communication. Sometimes, even the other judges on the Bench would not know.
The authenticity and even the delivery of the communication may be disputed. It
is only proper that Judges who have to decide the case should not be drawn into
such controversies. That apart the office would not be able PG NO 665 to check
the papers and process them for appropriate judicial notice. Judicial tradition
considers, for good reason, such practice undesirable. Applicant, however, has,
and is entitled to, her own views in the matter. We regret our inability to
accept them.
Another
instance referred to by the applicant as impairing her 'dignity' arose in the
context of the court pointing out to the applicant the impropriety of her
resorting to the press to air her grievances against the proceedings in court
and of making what the Court con- sidered, a factually inaccurate statement.
Indeed
on the subsequent date of hearing, the Court had pointed out to the applicant
of her misunderstanding of what she stated to the press and that the
"warning" which the applicant thought was administered to her and
made a public complaint about, was not directed towards her but was attributed
by her erroneously to herself. This clarification should have been sufficient.
But the clarification of the Court, apparently, did not re-assure her.
Referring to it she says :
"On
27.O8.88, the Court explained that the warning " we will put you on the
dock if you utter another word, was addressed to the counsel for Maharashtra
while I was warned that I was in contempt of Court for writing a letter to the
Court. Well, as I perceived it them both the threats were held out to me
because I was on my legs at that time.
Frankly,
we are unable to unravel the purpose of this pre-disposition to and
determination on her part to misunderstand. We shall leave it at that.
15.
Applicant has her own notions of the relationship between the Court and the
parties. She asserts:
"
. . . . . While the litigants have entitlements the Court has decision making
powers. However, the Court's special powers do not make it more equal, nor do
they make the Court the fountain-head of justice. The citizen- petitioner
coming to court on behalf of fellow citizens whose rights art: violated by the
State is certainly an equal participant and not a subsidiary of the
institution. " " . . . . . Institutions are made by the conduct and
the quality of work and output of the persons who man it. My PG NO 666
application No. 3128/88 records the conduct of person who man it. This record
is not a slur on the institution of the judiciary but a citique, of a
dysfunctional institution." It is true that the parties who seek justice
at the hands of the Court are neither its subordinates or subsidiaries. But the
notion of an equal participation, in its practical applications, presents
difficulties and can- not be stretched to the point where the court could share
the responsi-bility, and the powers that go with it Of regulating the
proceedings of the court with any of the parties before it. In the existing
system, the parties who seek recourse to courts have to submit themselves to
the jurisdiction and discipline of the Court. Their conduct, in relation to the
proceedings, is liable to be regulated by the Court. This is not a matter of
expression or assertion of any superiority but is merely a necessity and a
functional-imperative.
The
second ground on which withdrawal is sought is, therefore, wholly insubstantial
and proceeds on what appear to be certain subjec-tive susceptibilities of the
applicant which, to the extent they are irreconcilable with the discipline of
the Court cannot be countenanced.
16. The
third ground is that the proceedings are brought as a "voluntary
action" and that applicant is entitled to sustain her right to be the
petitioner-in-person" in a public interest litigation and that the
proceedings cannot be proceeded with after de-linking her from the proceedings.
This
again proceeds on certain fallacies as to the rights of a person who brings a
public interest litigation. Any reconnection of any such vested right in the
persons who initiate such proceedings is to introduce a new and potentially
harmful element in the judicial administration of this form of public law
remedy. That apart,what is implicit in the assertion of the applicant is the
appropriation to herself of the right and wisdom to determine the course the
proceedings are to or should take and its pattern. This cannot be recognised.
In the pre-sent proceedings the Court has already gone through and has
initiated an elaborate exercise as indicated in the orders excerpted earlier.
The petition cannot be permitted to be abandoned at this stage. Only a private
litigant can abandon his claims.
Though
the main prayer is one for the withdrawal of the petition, in the written
submissions, however, the applicant seems to strike a different note and seeks
to participate in the proceeding subject to certain conditions. No litigant PG
NO 667 can be permitted to stipulate conditions with the Court for the
continuance of his or her participation.
There
is, thus, no substance in any of the grounds.
17.
Now at the end of the day, the order that commends itself as appropriate having
regard to all in the circumstances of the case, is to refuse permission for the
withdrawal of the petition, and to direct that the applicant be deleted from
that: array of parties in this proceeding.
The
proceedings shall now be proceeded with a direction to the Supreme Court Legal
Aid Committee to prosecute the petition together with the aid and assistance of
such persons or agencies as the Court may permit or direct from time to time.
18.
The other prayer in the application is for modification of the order dated
5.8.1986 and 13.8.1486 forbidding the applicant from using the information
collected by her during her visits to jails and other custodial institutions
pursuant to the Court's order in 1')86. This permission cannot be granted
during the pendency of the proceedings as the information was gathered for
purposes of the case and pursuant to the directions of this Court.
19. In
the result, the Criminal Miscellaneous Petition is dismissed; but the name of
the Supreme Court Legal Aid Committee shall be substituted in place of that of
the applicant. There will be no order as to costs.
M. L.
A. Petition dismissed.
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