Dr. B.
Singh Vs. Union of India & Ors [2004] Insc 153
(11 March 2004)
Doraiswamy
Raju & Arijit Pasayat
(D.
No.305/2004) ARIJIT PASAYAT, J.
This
petition filed purportedly under Article 32 of the Constitution of India, 1950
(in short the 'Constitution') shows to what extent the process of law can be
abused. It carries the attractive brand name of "public interest
litigation", but the least that can be said is that it smacks of
everything what a public interest litigation should not be.
The
petition is purported to have been filed questioning the propriety of
respondent No.3 being considered for appointment as a Judge. Subsequently, an
application was filed for permission to withdraw the petition with liberty to
file a fresh petition as in the meantime respondent No.3 has been appointed as
a Judge.
Before
we go into the desirability of even entertaining such a petition, background in
which the petition has been filed needs to be noticed.
According
to the petitioner, as reflected in the petition, basis of the petition is a
copy of the representation purported to have been received from one Ram Sarup
which was addressed to the President of India with copies to the Chief Justice
of India, Ministry of Law and Justice, Chief Justice of Punjab and Haryana High
Court, Governor of Haryana and Bar Council of India wherein allegations were
made against respondent No.3. Only on the basis of what is stated therein of
which apparently the petitioner himself cannot legitimately claim to have any
personal knowledge the petitioner filed a writ petition before the Punjab and Haryana High Court which was
dismissed. The petitioner makes a grievance that aforesaid Ram Sarup had
received acknowledgement of the representation addressed to the President of
India wherein it was also noted that the same had been forwarded to the
Secretary to the Government of India, Ministry of Law, Justice and Company
Affairs (Department of Legal Affairs) for appropriate action. But no action was
taken to look into the allegations. It is not clear from the writ petition as
to whether the petitioner had sent any representation to the President and
other constitutional functionaries as the enclosures to the writ petition show
that aforesaid Ram Sarup had sent representations to the President with copies
to the other functionaries. The copy of the representation dated 18.10.2003
shows that it was sent by Ram Sarup. The second representation is dated
13.12.2003 in which reference has been made to a representation purported to be
dated 28.11.2003. In the representation dated 13.12.2003 reference is made to
the acknowledgement dated 12.11.2003. This creates an impression that the
acknowledgment dated 12.11.2003, of the President's Secretariat relates to the
representations sent by Ram Sarup. But the copy of purported acknowledgement
filed as Annexure P-2 shows as if it was sent by the petitioner. No copy of any
representation dated 28.10.2003 as indicated in Annexure P-2 has been filed
along with the petition. The petitioner nowhere has stated that he has any
personal knowledge of the allegations made against respondent No.3. He does not
even aver that he made any effort to find out whether the allegations have any
basis. He only refers to the representation of Ram Sarup and some paper
cuttings of news items. He has not indicated as to whether he was aware of the
authenticity or otherwise of the news items. It is too much to attribute
authenticity or credibility to any information or fact merely because, it found
publication in a newspaper or journal or Magazine or any other form of
communication, as though it is gospel truth. It needs no reiteration that
newspaper reports per se do not constitute legally acceptable evidence.
Strangely, in the affidavit accompanying the writ petition he has stated as
follows:
"That
I have read over the contents of accompanying writ petition page No. 1 to 13 para,
Para No. 1 to 18, synopsis and list of dates, page A to C and I say that the
same are true and correct on knowledge and based on the record of the
case".
The
affidavit shows that the contents were true and correct to his knowledge and
based on records. Strangely, it has not been indicated as to what is the source
of his knowledge and are based on what records. Even the copy of the order
passed by the Punjab and Haryana High Court where he
filed writ application on allegedly identical issues, as indicated in the
petition, has not been annexed. The casual and cavalier fashion it appears to
have been handled and of late attempted to be made ipse dixit, in a laconic and
lackadaisical manner compels to draw the only inference that the petitioner is
a busy body bent upon self publicity sans any sense of responsibility unmindful
of the adverse impact, at times it may go to create at the expense of decency
and dignity of constitutional offices and functionaries and there is no element
or even trace of public interest involved in the petition.
When
there is material to show that a petition styled as a public interest
litigation is nothing but a camouflage to foster personal disputes or vendatta
to bring to terms a person, not of ones liking, or gain publicity or a facade
for blackmail, said petition has to be thrown out. Before we grapple with the
issues involved in the present case, we feel it necessary to consider the issue
regarding the "public interest" aspect. Public Interest Litigation
which has now come to occupy an important field in the administration of law
should not be "publicity interest litigation" or "private
interest litigation" or "politics interest litigation" or the
latest trend "paise income litigation". If not properly and strictly
regulated at least in certain vital areas or spheres and abuse averted it
becomes also a tool in unscrupulous hands to release vendetta and wreck
vengeance, as well to malign not only an incumbent to be in office but demoralise
and deter reasonable or sensible and prudent people even agreeing to accept
highly sensitive and responsible offices for fear of being brought into
disrepute with baseless allegations.
There
must be real and genuine public interest involved in the litigation and
concrete or credible basis for maintaining a cause before court and not merely
an adventure of knight errant borne out of wishful thinking. It cannot also be
invoked by a person or a body of persons to further his or their personal
causes or satisfy his or their personal grudge and enmity. Courts of justice
should not be allowed to be polluted by unscrupulous litigants by resorting to
the extraordinary jurisdiction. The credibility of such claims or litigations
should be adjudged on the creditworthiness of the materials, averred and not
even on the credentials claimed of the person moving the courts in such cases.
A person acting bona fide and having sufficient interest in the proceeding of
public interest litigation will alone have a locus standi and can approach the
Court to wipe out violation of fundamental rights and genuine infraction of
statutory provisions, but not for personal gain or private profit or political
motive or any oblique consideration. These aspects were highlighted by this
Court in Janata Dal v. H.S. Chowdhary and Ors. (1992 (4) SCC 305) and Kazi Lhendup
Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ
petitioner who comes to the Court for relief in public interest must come not
only with clean hands like any other writ petitioner but also with a clean
heart, clean mind and clean objective. See Ramjas Foundation vs. Union of India, (AIR
1993 SC 852) and K.R. Srinivas vs. R.M. Premchand, (1994 (6) SCC 620).
It is
necessary to take note of the meaning of expression 'public interest
litigation'. In Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public
Interest' is defined thus:
"Public
Interest (1) a matter of public or general interest does not mean that which is
interesting as gratifying curiosity or a love of information or amusement but
that in which a class of the community have a pecuniary interest, or some
interest by which their legal rights or liabilities are affected." In
Black's Law Dictionary (Sixth Edition), "public interest" is defined
as follows :
"Public
Interest something in which the public, or some interest by which their legal
rights or liabilities are affected.
It
does not mean anything the particular localities, which may be affected by the
matters in question. Interest shared by national government...." In Janata
Dal's case (supra) this Court considered the scope of public interest
litigation. In para 53 of the said judgment, after considering what is public
interest, has laid down as follows :
"The
expression 'litigation' means a legal action including all proceedings therein
initiated in a Court of law for the enforcement of right or seeking a remedy.
Therefore,
lexically the expression "PIL" means the legal action initiated in a
Court of law for the enforcement of public interest or general interest in
which the public or a class of the community have pecuniary interest or some
interest by which their legal rights or liabilities are affected." In para
62 of the said judgment, it was pointed out as follows:
"Be
that as it may, it is needless to emphasis that the requirement of locus standi
of a party to a litigation is mandatory, because the legal capacity of the
party to any litigation whether in private or public action in relation to any
specific remedy sought for has to be primarily ascertained at the
threshold." In para 98 of the said judgment, it has further been pointed
out as follows:
"While
this Court has laid down a chain of notable decisions with all emphasis at
their command about the importance and significance of this newly developed
doctrine of PIL, it has also hastened to sound a red alert and a note of severe
warning that Courts should not allow its process to be abused by a mere busy
body or a meddlesome interloper or wayfarer or officious intervener without any
interest or concern except for personal gain or private profit or other oblique
consideration." In subsequent paras of the said judgment, it was observed
as follows:
"It
is thus clear that only a person acting bona fide and having sufficient
interest in the proceeding of PIL will alone have as locus standi and can
approach the Court to wipe out the tears of the poor and needy, suffering from
violation of their fundamental rights, but not a person for personal gain or
private profit or political motive or any oblique consideration.
Similarly
a vexatious petition under the colour of PIL, brought before the Court for
vindicating any personal grievance, deserves rejection at the threshold".
It is
depressing to note that on account of such trumpery proceedings initiated
before the Courts, innumerable days are wasted, which time otherwise could have
been spent for the disposal of cases of the genuine litigants. Though we spare
no efforts in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant, the oppressed and
the needy whose fundamental rights are infringed and violated and whose
grievance go unnoticed, un- represented and unheard; yet we cannot avoid but
express our opinion that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth hundreds of millions of
rupees and substantial rights and criminal cases in which persons sentenced to
death facing gallows under untold agony and persons sentenced to life
imprisonment and kept in incarceration for long years, persons suffering from
undue delay in service matters - government or private, persons awaiting the
disposal of tax cases wherein huge amounts of public revenue or unauthorized
collection of tax amounts are locked up, detenu expecting their release from
the detention orders etc. etc. are all standing in a long serpentine queue for
years with the fond hope of getting into the Courts and having their grievances
redressed, the busy bodies, meddlesome interlopers, wayfarers or officious
interveners having absolutely no real public interest except for personal gain
or private profit either of themselves or as a proxy of others or for any other
extraneous motivation or for glare of publicity break the queue muffing their
faces by wearing the mask of public interest litigation and get into the Courts
by filing vexatious and frivolous petitions of luxury litigants who have
nothing to loose but trying to gain for nothing and thus criminally waste the
valuable time of the Courts and as a result of which the queue standing outside
the doors of the court never moves, which piquant situation creates frustration
in the minds of the genuine litigants.
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 behind
the beautiful veil of public interest an ugly private malice, vested interest
and/or publicity seeking is not lurking. It is to be used as an effective
weapon in the armory of law for delivering social justice to the citizens. The
attractive brand name of public interest litigation should not be allowed to be
used for suspicious products of mischief. It should be aimed at redressal of
genuine public wrong or public injury and not publicity oriented or founded on
personal vendetta. As indicated above, Court must be careful to see that a body
of persons or member of public, who approaches the court is acting bona fide
and not for personal gain or private motive or political motivation or other
oblique consideration. The Court must not allow its process to be abused for
oblique considerations by masked phantoms who moniter at times from behind.
Some persons with vested interest indulge in the pastime of meddling with
judicial process either by force of habit or from improper motives and try to
bargain for a good deal as well to enrich themselves. Often they are actuated
by a desire to win notoriety or cheap popularity. The petitions of such busy
bodies deserve to be thrown out by rejection at the threshold, and in
appropriate cases with exemplary costs.
The
Council for Public Interest Law set up by the Ford Foundation in USA defined the "public interest litigation"
in its report of Public Interest Law,
USA, 1976 as follows:
"Public
Interest Law is the name that has recently been given to efforts provide legal
representation to previously unrepresented groups and interests. Such efforts
have been undertaken in the recognition that ordinary market place for legal
services fails to provide such services to significant segments of the
population and to significant interests. Such groups and interests include the
proper environmentalists, consumers, racial and ethnic minorities and
others." The Court has to be satisfied about
(a) the
credentials of the applicant;
(b) the
prima facie correctness or nature of information given by him;
(c) the
information being not vague and indefinite. The information should show gravity
and seriousness involved. Court has to strike balance between two conflicting
interests;
(i) nobody
should be allowed to indulge in wild and reckless allegations besmirching the
character of others; and
(ii) avoidance
of public mischief and to avoid mischievous petitions seeking to assail, for
oblique motives, justifiable executive actions.
In
such case, however, the Court cannot afford to be liberal. It 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. The Court has to act ruthlessly while dealing
with imposters and busy bodies or meddlesome interlopers impersonating as
public-spirited holy men. They masquerade as crusaders of justice. They pretend
to act in the name of Pro Bono Publico, though they have no interest of the
public or even of their own to protect.
Courts
must do justice by promotion of good faith, and prevent law from crafty
invasions. Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is against
the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481), and
Andhra Pradesh State Financial Corporation vs. M/s GAR
Re-Rolling Mills and Anr., (AIR 1994 SC 2151). No litigant has a right to
unlimited drought on the Court time and public money in order to get his
affairs settled in the manner as he wishes. Easy access to justice should not
be misused as a licence to file misconceived and frivolous petitions. (See Dr.
B.K. Subbarao vs. Mr. K. Parasaran, (1996) 7 JT 265). Today people rush to
Courts to file cases in profusion under this attractive name of public
interest. Self styled saviours who have no face or ground in the midst of
public at large, of late, try to use such litigations to keep themselves busy
and their names in circulation, despite having really become defunct in actual
public life and try to smear and smirch the solemnity of court proceedings.
They must really inspire confidence in Courts and among the public, failing
which such litigation should be axed with heavy hand and dire consequences.
As
noted supra, a time has come to weed out the petitions, which though titled as
public interest litigations are in essence something else. It is shocking to
note that Courts are flooded with large number of so called public interest
litigations, whereas only a minuscule percentage can legitimately be called as
public interest litigations. Though the parameters of public interest
litigation have been indicated by this Court in large number of cases, yet
unmindful of the real intentions and objectives, Courts at times are
entertaining such petitions and wasting valuable judicial time which, as noted
above, could be otherwise utilized for disposal of genuine cases.
Though
in Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. (AIR 1999 SC
114), this Court held that in service matters PILs should not be entertained,
the inflow of so-called PILs involving service matters continues unabated in
the Courts and strangely are entertained. The least the High Courts could do is
to throw them out on the basis of the said decision. This tendency is being
slowly permitted to percolate for setting in motion criminal law jurisdiction,
often unjustifiably just for gaining publicity and giving adverse publicity to
their opponents. The other interesting aspect is that in the PILs, official
documents are being annexed without even indicating as to how the petitioner
came to possess them. In one case, it was noticed that an interesting answer
was given as to its possession. It was stated that a packet was lying on the
road and when out of curiosity the petitioner opened it, he found copies of the
official documents. Apart from the sinister manner, if any, of getting such
copters, the real brain or force behind such cases would get exposed to find
out whether it was a bona fide venture. Whenever such frivolous pleas are taken
to explain possession, the Court should do well not only to dismiss the
petitions but also to impose exemplary costs, as it prima facie gives
impression about oblique motives involved, and in most cases show proxy
litigation. Where the petitioner has not even a remote link with the issues
involved, it becomes imperative for the Court to lift the veil and uncover the
real purpose of the petition and the real person behind it. It would be
desirable for the Courts to filter out the frivolous petitions and dismiss them
with costs as afore-stated so that the message goes in the right direction that
petitions filed with oblique motive do not have the approval of the Courts.
In
S.P. Gupta v. Union of India and Anr. (1981 Supp SCC 87) it was emphatically pointed out
that the relaxation of the rule of locus standi in the field of PIL does not
give any right to a busybody or meddlesome interloper to approach the Court
under the guise of a public interest litigant. The following note of caution
was given: (SCC p.219, para 24) "But we must be careful to see that the
member of the public, who approaches the court in cases of this kind, is acting
bona fide and not for personal gain or private profit or political motivation
or other oblique consideration. The court must not allow its process to be
abused by politicians and others to delay legitimate administrative action or
to gain a political objective."
In
State of H.P. vs. A Parent of a Student of Medical College, Simla and Ors. (1985 (3) SCC 169),
it has been said that public interest litigation is a weapon which has to be
used with great care and circumspection. Khalid, J. in his separate
supplementing judgment in Sachidanand Pandey vs. State of W.B., (1987 (2) SCC 295, 331) said:
"Today
public spirited litigants rush to courts to file cases in profusion under this
attractive name. They must inspire confidence in courts and among the public.
They
must be above suspicion. (SCC p. 331, para 46) * * * Public interest litigation
has now come to stay. But one is led to think that it poses a threat to courts
and public alike.
Such
cases are now filed without any rhyme or reason. It is, therefore, necessary to
lay down clear guidelines and to outline the correct parameters for
entertainment of such petitions. If courts do not restrict the free flow of
such cases in the name of public interest litigations, the traditional
litigation will suffer and the courts of law, instead of dispensing justice,
will have to take upon themselves administrative and executive functions. (SCC
p.334, para 59) * * * I will be second to none in extending help when such help
is required. But this does not mean that the doors of this Court are always
open for anyone to walk in. It is necessary to have some self-imposed restraint
on public interest litigants." (SCC p.335, para 61) These aspects have
been highlighted in Ashok Kumar Pandey v. The State of West Bengal (2003 (8) Supreme 299) Procedure
for appointment of a Judge is provided in Article 217 of the Constitution. The
process is an elaborate one and involves the views of the collegium of the
Court. Where a particular person is to be appointed as a Judge, the modalities
and procedures to be adopted have been elaborately dealt with in Special
Reference No.1 of 1998, Re: (1998 (7) SCC 739). The scope of judicial review
has been specifically delienated, limiting it to want of consultation with the
named constitutional functionaries or lack or any condition of eligibility and
not on any other ground including that of bias which is in any case is excluded
by the element of plurality in the process of decision-making. The view in
Supreme Court Advocates-on- Record Association and Ors. v. Union of India 1993
(4) SCC 441 (popularly known as Second Judges' case) was reiterated. It would
be proper to take note of very significant observations made in the Second
Judges' case about the growing tendency of needless intrusion by strangers and
busybodies in the functioning of the judiciary under the garb of public
interest litigation, in spite of the caution in S.P. Gupta's case (supra). The
note of caution has yielded no fruitful result and on the contrary these
busybodies continue to make reckless allegations and vitriolic statements
against Judges and persons whose names are under consideration for judgeship.
Therefore,
it has become imperative to take stern actions against these persons. It is not
the ipse dixit of any individual to say as to whether the recommended person is
fit for appointment, by making wide allegations which has become common these
days and have resulted in delaying appointment of Judges, though large number
of vacancies exist in different High Courts. All possible care and caution is
exercised before appointment of a Judge is made.
It is
true that no system is infallible, but at the same time the sinister design of
people intended to thwart prospects of a person likely to be appointed as a
Judge has to be nipped at the bud. The petitioner has not shown any material to
show that he is really interested in the welfare of the judicial system or the
institution of the judiciary. As indicated above, he appears to be a busy
person seeking publicity and a person who has no genuine concern for the
institution, if such type of petitions are permitted to be entertained it will
cause immense damage to the system itself. High sounding words used in the
petition about the desirability of a transparent judicial system cannot in our
view turn a mis-conceived petition filed with oblique motives to be treated as a
public interest litigation. This petition deserves to be dismissed with
exemplary costs and we direct so. The petition though deserves to be dismissed
with costs of Rs.50,000/- hoping that the petitioner would mend his ways and
would not hazard such vexatious litigations in future dismiss the same with
costs of Rs.10,000/- which the petitioner shall deposit in the Registry of this
Court within 6 weeks from today. If deposit is made it shall be remitted to the
Supreme Court Legal Services Authority. In case the cost is not deposited
within the time stipulated, the Registry shall forward this order to the Punjab
and Haryana High Court and the High Court shall have it recovered by coercive
means of recovery and remit the same to this Court, which on receipt shall be
paid to the Supreme Court Legal Services Authority.
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