STATE OF UTIARANCHAL v. BALWANT SINGH CHAUFAL & OTHERS

The Judgment of the Court was delivered by E DALVEER BHANDARI, J. 1. These appeals have been filed by the State of Uttaranchal (now Uttarakhand) against the orders dated 12. 7.2001 and 1.8.2001 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001. F

2Copy pinpoint2. The appointment of L. P. Nathani was challenged before the High Court in a Public Interest Litigation on the ground that he could not hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the G Constitution. According to the respondent, Mr. Nathani was ineligible to be appointed as the Advocate General because he had attained the age of 62 years much before he was appointed as the Advocate General. The High Court entertained the petition and directed the State Government to take decision H

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on the issue raised within 15 days and apprise the same to the A High Court.

3Copy pinpoint3. The State of Uttaranchal preferred special leave petitions before this Court on 6.8.2001. This Court vide order dated 9.8.2001 stayed the operation of the impugned judgment 8 of the High Court. Thereafter on 11.2.2002, this Court granted leave and directed that the stay already granted shall continue.

4Copy pinpoint4. It may be pertinent to mention that, despite the service of notice, the respondents who had initially filed the writ petition before the High Court challenging the appointment of Nathani C as the Advocate General did not appear before this Court. This clearly demonstrates the non-seriousness and non-commitment of the respondents in filing the petition.

5Copy pinpoint5. Before we proceed to examine the controversy involved o in this case, we deem it appropriate to set out Articles 165 and 217 of the Constitution dealing with the post of the Advocate General and the qualifications for appointment to this post in the Constitution. Article 165 which deals with the appointment of the Advocate General for the States is reproduced as under: E

"165. The Advocate-General for the State.-(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. F (2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the G functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine. H

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6Copy pinpoint6. Article 217 which deals with the appointment and the conditions of the office of a Judge of a High Court is set out as under:

217 - Appointment and conditions of the office of a Judge of a High Court.- (1) Every Judge of a High Court shall B be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an c additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that-

D (a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; E (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. F (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-

(a) has for at least ten years held a judicial office in the territory of India; or G (b) has for at least ten years been an advocate of a High Court or of two or more such courts in succession;

Explanation: For the purposes of this clause- H

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(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final."

7Copy pinpoint7. The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate G General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 H

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A years" (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years). The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the s appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause C of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor. D This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words "until he attains the age of sixty years". The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217.

8Copy pinpoint8. Shri Dinesh Dwivedi, the learned senior counsel appearing for the State of Uttarakhand submitted that, over half G a century ago, in G.D. Karkare v. T.L. Shevde & Others AIR 1952 Nagpur 330, this controversy has been settled by the Division Bench of the Nagpur High Court and the said judgment was approved by a Constitution Bench of this Court in the case

of Atlas Cycle Industries Ltd. Sonepat v. Their Workmen 1967

H Supp. (3) SCR 89. In Karkare's case (supra), it w~s observed

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as follows: A

"25. It is obvious that all the provisions relating to a Judge of a High Court cannot be made applicable to the Advocate-General. The provisions about remuneration are different for the two offices. A Judge of the High Court is governed by Art. 221. The Advocate-General is governed by clause (3) of Art. 165 and receives such remuneration as the Governor may determine.

26. What the first clause of Art. 165 insists is that the Governor shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate- General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Art. 217. It is true that the first clause of Art 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 years". The real question then is whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. As the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court.

27. The provision about duration in the first clause of Art. 217 cannot be made applicable to the Advocate-General because the Constitution contains a specific provision about the duration of the appointment of the Advocate- General in the third clause of Art. 165 which says that the Advocate-General shall hold office during the pleasure of the Governor. As this provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words "until he attains the age of sixty years". The specific provision in the Constitution must therefore be given effect to without any lir.f!ation. If a person is appointed Advocate~General, say.at the age of fifty-five, H ' .

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A there is no warrant for holding that he must cease to hold his office on this attaining sixty years because it is so stated about a Judge of a High Court in the first clause of Art.

217. If that be the true position, as we hold it is, then the appointment is not bad because the person is past sixty B years, so long as he has the qualifications prescribed in the second clause of Art. 217. It was not suggested that the non-applicant does not possess the qualifications prescribed in that clause.

28. The provision that every Judge of a High Court "shall c hold office until he attains the age of sixty years" has two aspects to it. While in one aspect it can be viewed as a guarantee of tenure during good behaviour to a person appointed as a Judge of a High Court until he attains the age of sixty, in another aspect it can be viewed as a D disability in that a Judge cannot hold his office as of right after he attains the age of sixty years.

29. We say as of right because under Art. 224 a person who has retired as a Judge of a High Court may be requested to sit and act as a Judge of a High court. The attainment of the age of sixty by a person cannot therefore be regarded as a disqualification for performing the functions of a Judge. But the learned counsel for the applicant tried to distinguish between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act as a Judge under Article 224.

The distinction between the case of a person qualified to be appointed a Judge of a High Court under G Article 217 and the case of a person requested to sit and act under Article 224 is not with respect to the qualifications for performing the functions of a Judge, but with respect to the matters provided by Article 221, 222, 223, etc. In the language of the Constitution a Judge does not lose the qualifications prescribed in the second clause of Article

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217 on the attainment of the age of sixty years. A person who attains that age cannot be appointed as a Judge not because he is not qualified to be so appointed within the meaning of the second clause of Article 217, but because the first clause of that Article expressly provides that a Judge shall hold office until he attains the age of sixty years.

(30) If the provision in the first clause of Article 217 viewed as a guarantee of tenure of office until the age of sixty is not available to the Advocate-General because he holds office during the pleasure of the Governor, we see no compelling reason why the same provision construed as a disability should be made applicable to him. We are, therefore, of the view that the first clause of Article 217 cannot be read with the first clause of Article 165 so as to disqualify a person from being appointed Advocate- D General after the age of sixty years. We have no doubt on the point. Even if the question be considered as not free from doubt, as the applicant desires to construe the first clause of Article 217 as a disabling provision against the non-applicant, we cannot forget that provisions entailing disabilities have to be construed strictly: 'Parameshwaram Pillai Bhaskara Pillai v. State', 1950-5 Dom LR (Trav) 382. The canon of construction approved by their Lordships of the Privy Council is that if there be any ambiguity as to the meaning of a disabling provision, the construction which is in favour of the freedom of the individual should be given effect to: 'David v. De'si/va', (1934) AC 106 at p. 114.

(31) There is no force in the contention that the non- applicant could not have been appointed Advocate- G General because he had retired as a Judge of the High Court. The learned counsel referred us to Clause (4)(a) of Article 22 of the Constitution and submitted that the Constitution makes a distinction between a person who has been a Judge and one who i" qualified to be appointed H

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A as a Judge of a High Court. The provision in our view only makes an exhaustive enumeration of the classes of persons who can constitute an Advisory Board. Such persons must either be or must have been or must be qualified to be appointed as Judges of a High Court. The B provision has therefore no bearing on the question whether the first clause of Article 165 has to be read with the first clause of Article 217, which question we have already answered in the negative. The case of the non-applicant is unique. Article 220 is not applicable to him because he c did not hold office as a Judge of the High Court after the commencement of the Constitution. So the bar contained in that Article also does not come in his way."

9Copy pinpoint9. Despite the fact that the controversy has been fully settled by a judgment of this Court, it has been raised from time to time in a number of writ petitions before the various High Courts. We would reproduce some of the judgments to demonstrate that after the controversy has been finally settled by this Court, the filing of indiscriminate petitions with the same relief creates unnecessary strain on the judicial system and consequently leads to inordinate delay in disposal of genuine and bona fide cases. ·

10Copy pinpoint10. The following cases would demonstrate that, in how many High Courts, the similar controversy has been raised after the matter was finally settled by this Court:

11Copy pinpoint11. In Ghanshyam Chandra Mathur v. The State of Rajasthan & Others 1979 Weekly Law Notes 773, the appointment of the Advocate General was once again challenged. The court held that "... no age of superannuation has been mentioned in Article 165 of the Constitution of India. This clearly means that the age of superannuation which applies to a High Court Judge, does not apply to the office of the Advocate General".

12Copy pinpoint12. In Dr. Chandra Bhan Singh v. State of Rajasthan &

- STATE OF UTTARANCHAL v. BALWANT SINGH 705 CHAUFAL & ORS. [DALVEER BHANDARI, J.]

Others AIR 1983 Raj. 149, the question regarding the validity of the appointment of the Advocate General was challenged. The Court in this case had held that the age of superannuation of a High Court Judge did not apply to the post of the Advocate General. The court noted that all provisions in the Constitution for High Court Judges, s~ch as remuneration and tenure of office do not apply to the post of the Advocate General.

13Copy pinpoint13. In Manendra Nath Rai & Another v. Virendra Bhatia & Others AIR L004 All. 133, the appointment of the Advocate General was yet again challenged. The Court held as under: c "The argument that the provision of Sub-claw~e (1) of Article 217 of the Constitution should be followed in the matter of appointment of Advocate General is wholly misconceived. Article 217 of the Constitution deals with the appointment and conditions of the office of a Judge of a D High Court. The consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court cannot be made a requirement in the matter of the appointment of Advocate General. The appointment of Advocate General is not governed by the aforesaid Article E which falls in Chapter-V Part-6 of the Constitution whereas Article 165, which deals with the appointment of Advocate General for the State falls in Chapter II of Part 6. The scheme of the Constitution for the appointment of Advocate General as well as for appointment of a Judge of the ~igh F Court is totally different."

14Copy pinpoint14. In a Division Bench judgment dated 4.2.2005 of the Allahabad High Court in Prem Chandra Sharma & Others v. Milan Banerji & Others in writ petition No. 716 (M/B) of 2005 reported in 2005 (3) ESC 2001, the appointment of the Attorney G General for India was challenged and a prayer was made to issue a writ in the nature of quo warranto, because according to the petitioner, the respondent Milan Ban.erji had already attained the age of 65 years and he could not be appointed as the Attorney General for India. In that case, the Division H

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A Bench relied upon the judgment of the Division Bench of the Nagpur High Court in G.D. Karkare·s case (supra). The Court held as under:

"Having examined various provisions of the Constitution, it is quite clear that the Constitution of India B does not provide the retirement age of various constitutional appointees. No outer age limit has been provided for the appointment of the Attorney General, Solicitor General and Advocate General in the State. In the democratic system; prevailing in our country the Attorney c General is appointed on the recommendation of the Prime Minister by the President of India and traditionally, he resigns along with the Prime Minister. Learned Counsel for the petitioner could not show any law relating to the age of retirement of Attorney General or embargo provided in D Constitution on appointment of a person as Attorney General, who has already attained the age of 65 years. We are of the considered opinion that the letter and spirit of the Constitution as far as appointment of the Attorney General is concerned, looking to significance, E responsibility and high status of the post, it lays down certain requirements for a Member of Bar to be appointed as Attorney General of India. It is in this backdrop that the framers of the Constitution thought it necessary to prescribe minimum requisite qualification by laying that a F person who is qualified to be appointed as Judge of the Hon'ble Court can be appointed as Attorney-General of India. This situation, however, cannot lead us to the conclusion by any stretch of imagination that the Attorney General cannot hold his office after the age of 65 years. As already indicated herein-above there are various G constitutional functionaries where no outer age limit is provided to hold the office."

15Copy pinpoint15. In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the H Advocate General for the State can be appointed after he/she

STATE OF UTTARANCHAL v. BALWANT SINGH 707

CHAUFAL & ORS. [DALVEER BHANDARI, J.] attains the age of 62 years. Similarly, the Attorney General for A India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view.

16Copy pinpoint16. This Court in Binay Kant Mani Tripathi v. Union of B India & Others (1993) 4 SCC 49 has re-affirmed this position. The Court pointed out that the decision of appointing D.K. Aggarwal to the position of the Vice-chairman of the Central Administrative Tribunal could not be held to be illegal or wrong on the ground that he was more than sixty two years old. c

17Copy pinpoint17. In Baishnab Patnaik & Others v. The State AIR 1952 Orissa 60, the appointment of a person to the Advisory Board under the Preventive Detention Act was challenged on the grounds that he was older than 60 years (the age of superannuation for High Court judges at that time). The court D pointed out:

"If the makers of the Constitution thought that the age limit was one of the qualifications for appointment as a Judge of a High Court they would not have specified it in Clause E (1) of Article 217 but would have included it in Clause (2) of the said Article."

18Copy pinpoint18. In Gurpal Singh v. State of Punjab & Others (2005) 5 SCC 136, the appointment of the appellant as Auction Recorder was challenged. The Court held that the scope of entertaining a petition styled as a public interest litigation and locus standi of the petitioner particularly in matters involving service of an employee has been examined by this Court in various cases. The Court observed that before entertaining the petition, the Court must 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. The court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge H

708 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 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.

8 19. The aforementioned cases clearly give us the picture how the judicial process has been abused from time to time and after the controversy was finally settled by a Constitution Bench of this Court, repeatedly the petitions were filed in the various courts.

20Copy pinpoint20. In the instant case, one of the petitioners before the High Court is a practicing lawyer of the court. He has invoked the extraordinary jurisdiction of the High Court in this matter. It was expected from a Hon'ble member of the noble profession not to invoke the jurisdiction of the court in a matter where the controversy itself is no longer res integra.

21Copy pinpoint21. Similarly, it is the bounden duty of the court to ensure that the controversy once settled by an authoritative judgment should not be reopened unless there are extraordinary reasons for doing so.

22Copy pinpoint22. In the instant case, the High Court entertained the petition despite the fact that the controversy involved in the case was no longer res integra. In reply to that writ petition, the Chief Standing Counsel of Uttrakhand also filed a Miscellaneous F Application before the High Court. The relevant portion of the application reads as under:

"3. That the following Attorney Generals appointed under Article 76 of the Constitution were appointed when they G were appointed as Attorney General were beyond prescribed age for appointment as Supreme Court of India.

(I) Sri M. C. Setalvad

H (II) Sri C. K. Dapatary

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CHAUFAL & ORS. [DALVEER BHANDARI, J.]

(Ill) Shri Niren De A

(IV) Sri Lal Narain Singh

(V) Sri K. Parasaran

(VI) Sri Soli Sorabjee . B

4. That the appointment of present Attorney General (Mr. Milon Banerjee) was challenged before the Delhi High Court and the petitiOn was dismissed in limine. The appointment of Mr. RP. Goel, Advocate General of U.P. c who has passed the age of 62 at the time of appointment was also dismissed.

5. That in the Hon'ble High Court of Judicature at Allahabad Sri JV. K.S. Chaudhary, Sir Rishi Ram, Pt. Kanhaiya Lal Mishra, Sri Shanti Swaroop Bhatnagar and D several others were appointed as Advocate General after crossing the age of 62 years. There were several Advocate Generals in India who were appointed after 62 years."

23Copy pinpoint23. The State of Uttrakhand was a part of the State of U.P. E a few years ago. In the State of U.P., a large number of Advocate Generals appointed were beyond 62 years of age at the time of their appointment. The petitioner, a local practicing lawyer, ought to have bestowed some care before filing this writ petition in public interest under Article 226 of the F Constitution.

24Copy pinpoint24. The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra} which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy G has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense H

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A potentiality of demeaning a very important constitutional office and person who has been appointed to that office.

25Copy pinpoint25. In our considered view, it is a clear case of the abuse of process of court in the name of the Public Interest Litigation. In order to curb this tendency effectively, it has now become 8 imperative to examine all connected issues of public interest litigation by an authoritative judgment in the hope that in future no such petition would be filed and/or entertained by the Court.

26Copy pinpoint26. To settle the controversy, we deem it appropriate to C deal with different definitions of the Public Interest Litigation in various countries. We would also examine the evolution of the public interest litigation.

DEFINITIONS OF PUBLIC INTEREST LITIGATION

27Copy pinpoint27. Public Interest Litigation has been defined in the Black's Law Dictionary (6th Edition) as under:-

"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national governmen t...."

28Copy pinpoint28. Advanced Law Lexicon has defined 'Public lnteres1 Litigation' as under:-

"The expression 'PIL' means a legal action initiated in a G Court of law for the enforcement of public interest or general interest in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected."

29Copy pinpoint29. The Council for Public Interest Law set up by the Fore

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Foundation in USA defined "public interest litigation" in its A 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 8 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." (M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. -AIR 2008 SC 913, para 19).

30Copy pinpoint30. This court in People's Union for Democratic Rights & Others v. Union of India & Others (1982) 3 SCC 235 defined 'Public Interest Litigation' and observed that the "Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society". E

ORIGIN OF PUBLIC INTEREST LITIGATION:

31Copy pinpoint31. The public interest litigation is the product of realization of the constitutional obligation of the court. F

32Copy pinpoint32. All these petitions are filed under the big banner of the public interest litigation. In this view of the matter, it has become imperative to examine what are the contours of the public interest litigation? What is the utility and importance of the public interest litigation? Whether similar jurisdiction exists in other G countries or this is an indigenously developed jurisprudence? Looking to the special conditions prevalent in our country, whether the public interest litigation should be encouraged or discouraged by the courts? These are some of the questions which we would endeavour to answer in this judgment. H

712 SUPREME COURT REPORTS [2010] 1 ~.C.R.

33Copy pinpoint33. According to our opinion, the public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the country. The Courts' directions B have immensely benefited marginalized sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. etc. The court's directions to some extent have helped in maintaining probity and transparency in the public life. c 34. This court while exercising its jurisdiction of judicial review realized that a very large section of the society because of extreme poverty, ignorance, discrimination and illiteracy had been denied justice for time immemorial and in fact they have no access to justice. Pre-dominantly, to provide access to D justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society, this court has initiated, encouraged and propelled the public interest litigation. The litigation is upshot and product of this court's deep and intense urge to fulfill its bounded duty and constitutional obligation. E

35Copy pinpoint35. The High Courts followed this Court and exercised similar jurisdiction under article 226 of the Constitution. The courts expanded the meaning of right to life and liberty guaranteed under article 21 of the Constitution. The rule of locus standi was diluted and the traditional meaning of 'aggrieved person' was broadened to provide access to justice to a very large section of the society which was otherwise not getting any benefit from the judicial system. We would like to term this as the first phase or the golden era of the public interest litigation. We would briefly deal with important cases decided by this Court in the first phase after broadening the definition of 'aggrieved person'. We would also deal with cases how this Court prevented any abuse of the public interest litigation?

36Copy pinpoint36. This Court in Akhi/ Bharatiya Soshit Karamchari

STATE OF UTTARANCHAL v. BALWANT SINGH 713

CHAUFAL & ORS. [DALVEER BHANDARI, J ] Sangh (Railway) v. Union of India & Others AIR 1981 SC 298 A at page 317, held that our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'. Indeed, little Indians in large numbers seeking B remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concepts of 'cause of action', 'person aggrieved' and individual litigation are c becoming obsolescent in some jurisdictions.

37Copy pinpoint37. In Bandhua Mukti Morcha v. Union of India & Others AIR 1984 SC 802, this court entertained a petition even of unregistered Association espousing the cause of over down- trodden or its members observing that the cause of "little D Indians" can be espoused by any person having no interest in the matter.

38Copy pinpoint38. In the said case, this court further held that where a public interest litigation alleging that certain workmen are living in bondage and under inhuman conditions is initiated it is not expected of the Government that it should raise preliminary objection that no fundamental rights of the petitioners or the workmen on whose behalf the petition has been filed, have been infringed. On the contrary, the Government should welcome an inquiry by the Court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or any consigned to a life of utter deprivation and degradation, such a situation can be set right by the Government.

39Copy pinpoint39. Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights H

714 SUPREME COURT REPORTS (2010] 1 S.C.R.

A meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor B and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or c it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements.

40Copy pinpoint40. In Fertilizer Corporation Kamagar Union (Regd., Sindri & Others v. Union of India & Others AIR 1981 SC 844, this court observed that "public interest litigation is part of the process of participative justice and 'standing' in civil litigation of that pattern must have liberal reception at the judicial doorsteps".

41Copy pinpoint41. In Ramsharan Autyanuprasi & Another v. Union of India & Others AIR 1989 SC 549, this court observed that the public interest litigation is for making basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice.

EVOLUTION OF THE PUBLIC INTEREST LITIGATION IN INDIA G

42Copy pinpoint42. The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society - the poor and the marginalized sections of the society. This jurisdiction H has been created and carved out by the judicial creativity and

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craftsmanship. In M. C. Mehta & Another v. Union of India & A Others AIR 1987 SC 1086, this Court observed that Article 32 does not merely confer power on this Court to issue direction, order or writ for the enforcement of fundamental rights. Instead, it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. The court asserted that, B in realization of this constitutional obligation, "it has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights". The Court realized that because of extreme poverty, a large number of sections of society cannot approach c the court. The fundamental rights have no meaning for them and in order to preserve and protect the fundamental rights of the marginalized section of society by judicial innovation, the courts by judicial innovation and creativity started giving necessary directions and passing orders in the public interest. D

43Copy pinpoint43. The development of public interest litigation has been extremely significant development in the history of the Indian jurisprudence. The decisions of the Supreme Court in the 1970's loosened the strict locus standi requirements to permit filing of petitions on behalf of marginalized and deprived sections of the society by public spirited individuals, institutions and/or bodies. The higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In suitable cases, the courts have also given guidelines and directions. The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation. If the cases of the decades of 70s and 80s are analyzed, most of the public interest litigation cases which were entertained by the courts are pertaining to enforcement of fundamental rights of marginalized and deprived sections of the society. This can be termed as the first phase of the public interest litigation in India. H

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44Copy pinpoint44. The Indian Supreme Court broadened the traditional rule of standing and the definition of "person aggrieved".

45Copy pinpoint45. In this judgment, we would like to deal with the origin and development of public interest litigation. We deem it appropriate to broadly divide the public interest litigation in three 8 phases.

Phase-l:lt deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the c marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Cou.rts.

Phase-ll:lt deals with the cases relating to D protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc.

Phase-lll:lt deals with the directions issued by the E Courts in maintaining the probity, transparency and integrity in governance.

46Copy pinpoint46. Thereafter, we also propose to deal with the aspects of abuse of the Public Interest Litigation and remedial measures by which its misuse can be prevented or curbed.

DISCUSSION OF SOME IMPORTANT CASES OF PHASE- !

47Copy pinpoint47. The court while interpreting the words "person aggrieved" in Jasbhai Motibhai Desai v. Roshan Kumar, Haj1 Bashir Ahmed & Others (1976) 1 SCC 671 observed that "the traditional rule is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, ir

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CHAUFAL & ORS. [DALVEER BHANDARI, J.] exceptional cases even a stranger or a person who was not a A party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule".

48Copy pinpoint48. The rule of locus standi was relaxed in Bar Council 8 of Maharashtra v. M. V. Dabholkar ~ Others 1976 SCR 306. The court observed as under:

"Traditionally used to the adversary system, we search for • individual persons aggrieved. But a new class of litigation public interest litigation-where a section or whole of the community is involved (such as consumers' organisations or NAACP-National Association for Advancement of Coloured People-in America), emerges in a developing country like ours, this pattern of public oriented litigation better fulfils the rule of law if it is to run close to the rule of life.

xxx xxx xxx "The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system."

49Copy pinpoint49. The court in this case observed that "procedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the spirit in which Courts must view procession deviances."

50Copy pinpoint50. In The Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizul/abhai & Others AIR 1976 SC 1455, this Court made conscious efforts to improve the judicial access for the masses by relaxing the traditional rule of locus standi.

51Copy pinpoint51. In Sunil Batra v. Delhi Administration & Others AIR 1978 SC 1675, the Court departed from the traditional rule of H

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A standing by authorizing community litigation. The Court entertained a writ petition from a prisoner, a disinterested party, objecting to the torture of a fellow prisoner. The Court entertained the writ after reasoning that "these 'martyr' litigations possess a beneficent potency beyond the individual litigant and B their consideration on the wider representative basis strengthens the rule of law." Significantly, citing "people's vicarious involvement in our justice system with a broad-based concept of locus standi so necessary in a democracy where the masses are in many senses weak," the Court permitted a c human rights organization to intervene in the case on behalf of the victim.

52Copy pinpoint52. In Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna AIR 1979 SC 1369, P. N. Bhagwati, J. has observed that "today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to (sic) about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across 'law for the poor'' rather than law of the poor'. The law is regarded by them as something mysterious and forbidding- always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker section of the community.

53Copy pinpoint53. In Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535, a prisoner sent a telegram to a judge complaining of forced handcuff on him and demanded implicit protection against humiliation and torture. The court gave necessary directions by relaxing the strict rule of locus standi.

54Copy pinpoint54. In Municipal Council, Rat/am v. Vardhichand & Others AIR 1980 SC 1622, Krishna Iyer, J. relaxed the rule of locus standi:

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"The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of 'standing' of British Indian vintage. If the center of gravity of justice is to shift, as the B Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered ..... )()()( )()()( xxx c )()()( )()()( )()()(

Why drive common people to public interest action? Where Directive Principles have found statutory expression in D Do's and Don'ts the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice ...... " E

55Copy pinpoint55. In Fertilizer Corporation Kamgar Union (supra) Krishna Iyer, J. and Bhagwati, J. had to answer in affirmative as to whether the workers in a factory owned by government had locus standi to question the legality of sale of the factory. They concluded with a quote: 'Henry Peter Brougham: Nieman F Reports, April 1956 as under:

"It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign's boast when he shall have it to say that he G found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence." H

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56Copy pinpoint56. In People's Union for Democratic Rights & Others (supra), this Court observed as under:

"that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low B visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing c such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un- redressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the 'chamars' belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right of exploit is upheld H

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against the government under the label of Fundamental A Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called B champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as c they are for freedom and democracy, simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty: utter grinding poverty has 0 broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce?

57Copy pinpoint57. Justice Bhagwati of this court in his judgment in S.P. E Gupta v. President of India & Others AIR 1982 SC 149 altogether dismissed the traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the Court awarded standing to advocates challenging the transfer of judges during Emergency. Describing the traditional rule as an F "ancient vintage" of "an era when private law dominated the legal scene and public law had not been born," the Court concluded that the traditional rule of standing was obsolete. In its place, the Court prescribed the modern rule on standing: G "where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal H

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A injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ, in the High Court under Article 226, and in case of breach of any fundamental right, in this Court under Article 32."

58Copy pinpoint58. Finding that the practicing advocates "are vitally interested in the maintenance of a fearless and an independent Judiciary," the Court granted standing to the advocates under the modern rule to bring cases challenging the transfer of judges during Emergency. In this case, this Court further observed as under:

D "...... it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court E for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person F does not go un-redressed and justice is done to him.

G ...... Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights H

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and to whom freedom and liberty have no meaning. The A only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by B reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts c of the country will also adopt this pro-active, goal-oriented approach."

59Copy pinpoint59. In Anil Yadav & Others v. State of Bihar and Bachcho Lal Das, Superintendent, Central Jail, Bhagalpur, Bihar (1982) 2 sec 195, a petition was filed regarding blinding of under- D trial prisoners at Bhagalpur in the State of Bihar. According to the allegation, their eyes were pierced with needles and acid poured into them. The Court had sent a team of the Registrar and Assistant Registrar to visit the Central Jail, Bhagalpur and submit a report to the Court. The Court passed comprehensive E orders to ensure that such barbarous and inhuman acts are not repeated.

60Copy pinpoint60. In Munna & Others v. State of Uttar Pradesh & Others, (1982) 1 SCC 545, the allegation was that the juvenile under- F trial prisoners have been sent in the Kanpur Central Jail instead of Children's Home in Kanpur and those children were sexually exploited by the adult prisoners. This Court ruled that in no case except the exceptional ones mentioned in the Act, a child can be sent to jail. The Court further observed that the children G below the age of 16 years must be detained only in the Children's Homes or other place of safety. The Court also observed that "a Nation which is not concerned with the welfare of the children cannot look forward to a bright future."

61Copy pinpoint61. Thereafter, in a series of cases, the Court treated Post H

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A Cards and letters as writ petitions and gave directions and orders.

62Copy pinpoint62. In Sheela Barse v. State of Maharashtra AIR 1983 SC 378, Sheela Barse, a journalist, complained of custodial violence to women prisoners in Bombay. Her letter was treated 8 as a writ petition and the directions were given by the court.

63Copy pinpoint63. In Dr. Upendra Baxi (I) v. State of Uttar Pradesh & Another 1983 (2) SCC 308 two distinguished law Professors of the Delhi University addressed a letter to this court regarding C inhuman conditions which were prevalent in Agra Protective Home for Women. The court heard the petition on a number of days and gave important directions by which the living conditions of the inmates were significantly improved in the Agra Protective Home for Women. D

64Copy pinpoint64. In Veena Sethi (Mrs.) v. State of Bihar & Others AIR 1983 SC 339, some prisoners were detained in jail for a period ranging from 37 years to 19 years. They were arrested in connection with certain offences and were declared insane at the time of their trial and were put in Central Jail with directions to submit half-yearly medical reports. Some were convicted, some acquitted and trials were pending against some of them. After they were declared sane no action for their release was taken by the authorities. This Court ruled that the prisoners remained in jail for no fault of theirs and because of the callous and lethargic attitude of the authorities. Even if they are proved guilty the period they had undergone would exceed the maximum imprisonment that they might be awarded.

65Copy pinpoint65. In Labourers Working on Sala/ Hydro Project v. State G of Jammu & Kashmir & Others AIR 1984 SC 177, on the basis of a news item in the Indian Express regarding condition of the construction workers, this Court took notice and observed that the construction work is a hazardous employment and no child below the age of 14 years can therefore be allowed to be employed in construction work by reason of the prohibition

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enacted in Article 24 and this constitutional prohibition must be enforced by the Central Government.

66Copy pinpoint66. In Shri Sachidanand Pandey & Another v. The State of West Bengal & Others (1987) 2 sec 295, in the concurring judgment, Justice Khalid, J. observed that the public interest litigation should be encouraged when the Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its c jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and tne neglected.

67Copy pinpoint67. The case of B. R. Kapoor & Another v. Union of India D & Others AIR 1990 SC 752 relates to public interest litigation 1 regarding mismanagement of the hospital for mental diseases located at Shahdara, Delhi. This Court appointed a Committee of Experts which highlighted the problems of availability of water, existing sanitary conditions, food, kitchen, medical and E nursing care, ill-treatment of patients, attempts of inmates to commit suicide, death of patients in hospital, availability of doctors and nurses etc. The Court went on to recommend the Union of India to take over the hospital and model it on the lines ... ~

of NIMHANS at Bangalore. F

68Copy pinpoint68. In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa & Others AIR 1993 SC 1960, this Court gave directions that for contravention of human rights and fundamental freedoms by the State and its agencies, a claim for monetary compensation in petition under Article 32 or 226 G is justified. In a concurring judgment, Anand, J. (as he then was) observed as under:

"The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the H

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A courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations " B

69Copy pinpoint69. In Punjab and Haryana High Court Bar Association. Chandigarh through its Secretary v. State of Punjab & Others (1994) 1 sec 616, the allegation was that a practicing advocate, his wife and a child aged about two years were abducted and murdered. This Court directed the Director of the C CBI to investigate and report to the Court.

70Copy pinpoint70. In Navkiran Singh & Others v. State of Punjab through Chief Secretary & Another (1995) 4 SCC 591, in a letter petition the advocates from the Punjab & Haryana High Court D expressed concerned about the kidnapping/elimination of advocates in the State of Punjab. This Court directed the CBI to investigate the matter and also directed the State of Punjab to provide security to those advocates who genuinely apprehend danger to their lives from militants/anti-social E elements. The Court also observed that if the request for security is recommended by the District Judge or the Registrar of the High Court, it may be treated as genuine and the State Government may consider the same sympathetically.

71Copy pinpoint71. In Delhi Domestic Working Women's Forum v. Union of India & Others (1995) 1 SCC 14, the Court expressed serious concern about the violence against women. The Court gave significant directions and observed that compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board G whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

72Copy pinpoint72. In Citizens for Democracy v. State of Assam & Others

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(1995) 3 SCC 743, this Court held that handcuffing and tying with ropes is inhuman and in utter violation of human rights guaranteed under the international law and the law of the land. The Court in para 15 observed as under:

"15. .. ... The handcuffing and in addition tying with ropes of the patient-prisoners who are lodged in the hospital is, the least we can say, inhuman and in utter violation of the human rights guaranteed to an individual under the international law and the law of the land. We are, therefore, of the view that the action of the respondents was wholly unjustified and against law. We direct that the detenus - in case they are still in hospital - be relieved from the fetters and the ropes with immediate effect."

73Copy pinpoint73. In Paramjit Kaur (Mrs.) v. State of Punjab & Others (1996) 7 sec 20, a telegram was sent to a Judge of this Court D which was treated as a habeas corpus petition. The allegation was that the husband of the appellant was kidnapped by some persons in police uniform from a busy residential area of Amritsar. The Court took serious note of it and directed the investigation of the case by the Central Bureau of Investigation. E

74Copy pinpoint74. In M. C. Mehta v. State of Tamil Nadu & Others (1996) 6 SCC 756, the Court was dealing with the cases of child labour and the Court found that the child labour emanates from extreme poverty, lack of opportunity for gainful employment and intermittency of income and low standards of living. The Court F observed that it is possible to identify child labour in the organized sector, which forms a minuscule of the total child labour, the problem relates mainly to the unorganized sector where utmost attention needs to be paid. G

75Copy pinpoint75. In D. K. Basu v. State of West Bengal (1997) 1 SCC 416, this Court observed that the custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. H

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A The expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenus and other B prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The Court gave very significant directidns which are mandatory for all concerned to follow.

76Copy pinpoint76. In Vishaka & Others v. State of Rajasthan & Others C (1997) 6 SCC 241, this Court gave directions regarding enforcement of the fundamental rights of the working women under Articles 14, 19 and 21 of the Constitution. The Court gave comprehensive guidelines and norms and directed for protection and enforcement of these rights of the women at their D workplaces.

77Copy pinpoint77. In a recently decided case Prajwala v. Union of India & Others (2009) 4 SCC 798, a petition was filed in this Court in which it was realized that despite commencement of the E Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled people are not given preferential treatment. The Court directed the State Governments/local authorities to allot land for various purposes indicated in section 43 of the Act and various items indicated in section 43, preferential treatment be given to the disabled people and the land shall be given at concessional rates. The percentage of reservation may be left to the discretion of the State Governments. However, total percentage of disabled persons shall be taken into account while deciding the percentar ·.

78Copy pinpoint78. In Avinash Mehrotra v. Union of India & Others (2009) 6 sec 398, a public interest litigation was filed, when 93 children were burnt alive in a fire at a private school in Tamil Nadu. This happened because the school did not have the minimum safety standard measures. The court, in order to

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protect future tragedies in all such schools, gave directions that it is the fundamental right of each and every child to receive education free from fear of security and safety, hence the Government should implement National Building Code and comply with the said orders in constructions of schools for children. B

79Copy pinpoint79. All these abovementioned cases demonstrate that the courts, in order to protect and preserve the fundamental rights of citizens, while relaxing the rule of locus standi, passed a number of directions to the concerned authorities. c

80Copy pinpoint80. We would not like to overburden the judgment by multiplying these cases, but brief resume of these cases demonstrate that in order to preserve and protect the fundamental rights of marginalized, deprived and poor sections of the society, the courts relaxed the traditional rule of locus standi and broadened the definition of aggrieved persons and gave directions and orders. We would like to term cases of this period where the court relaxed the rule of locus standi as the first phase of the public interest litigation. The Supreme Court and the High Courts earned great respect and acquired great credibility in the eyes of public because of their innovative efforts to protect and preserve the fundamental rights of people belonging to the poor and marginalized sections of the society.

PHASE-II - DIRECTIONS TO PRESERVE AND PROTECT F ECOLOGY AND ENVIRONMENT

81Copy pinpoint81. The second phase of public interest litigation started sometime in the 1980's and it related to the courts' innovation and creativity, where directions were given to protect ecology and environment. G

82Copy pinpoint82. There are a number of cases where the court tried to protect forest cover, ecology and environment and orders have been passed in that respect. As a matter of fact, the Supreme Court has a regular Forest Bench (Green Bench) and regularly H

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A passes orders and directions regarding various forest cover, illegal mining, destruction of marine life and wild life etc. Reference of some cases is given just for illustration.

83Copy pinpoint83. In the second phas_e, the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution 8 passed a number of orders and directions in this respect.

84Copy pinpoint84. The recent example is the conversion of all public transport in the Metropolitan City of Delhi from diesel engine to CNG engine on the basis of the order of the High Court of C Delhi to ensure thpt the pollution level is curtailed and this is being completely observed for the last several years. Only CNG vehicles are permitted to ply on Delhi roads for public transport.

85Copy pinpoint85. Louise Erdrich Bigogress, an environmentalist has aptly observed that "grass and sky are two canvasses into which the rich details of the earth are drawn." In 1980s, this court paid special attention to the problem of air pollution, water pollution, environmental degradation and passed a number of directions and orders to ensure that environment ecology, wildlife should be saved, preserved and protected. According to court, the scale of injustice occurring on the Indian soil is catastrophic. Each day hundreds of thousands of factories are functioning without pollution control devices. Thousands of Indians go to mines and undertake hazardous work without proper safety protection. Everyday millions of litres of untreated raw effluents are dumped into our rivers and millions of tons of hazardous waste are simply dumped on the earth. The environment has become so degraded that instead of nurturing us it is poisoning us. In this scenario, in a large number of cases, the Supreme Court intervened in the matter and issued innumerable directions.

86Copy pinpoint86. We give brief resume of some of the important cases decided by this court. One of the earliest cases brought before the Supreme Court related to oJeum gas leakage in Delhi. In H order to prevent the damage being done to environment and

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the life and the health of the people, the court passed number of orders. This is well-known as M. C. Mehta & Another v. Union of India & Others AIR 1987 SC 1086. The court in this case has clearly laid down that an €.1terprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding area owes an absolute and non-delegable duty to the community to ensure that no such harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The court directed that the enterprise must adopt c highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. D

87Copy pinpoint87. In Rural Litigation and Entitlement Kendra, Oehradun & Others v. State of UP. & Others AIR 1985 SC 652 the Supreme Court ordered closure of all lime-stone quarries in the Doon Valley taking notice of the fact that lime-stone quarries and excavation in the area had adversely affected water springs and environmental ecology. While commenting on the closure of the lime-stone quarries, the court stated that this would undoubtedly cause hardship to owners of the lime- stone quarries, but it is the price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment. G

88Copy pinpoint88. Environmental PIL has emerged because of the court's interpretation of Article 21 of the Constitution. The court in Chhetriya Pardushan Mukti Sangharsh Samiti v. State of UP. & Others AIR 1990 SC 2060 observed that every citizen has fundamental right to have the enjoyment of quality of life and H

732 SUPREME COURT REPORTS [2010) 1 S.C.R.

A living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to take recourse to Article 32 of the Constitution. 8