Why the Hon'able Court Must Hear Us
Within five days of Kamla being purchased and brought to Delhi three of us filed a writ in the Supreme Court informing the Hon'ble Court what we had learnt about the trade in women in the Morena and Dholpur regions and praying for relief of several kinds.
We deliberately chose not to make Kamla one of the petitioners as we wanted, among other things, to obtain a definitive pronouncement from the Supreme Court about the rights of citizens to move the Courts on matters of public concern. As is well known, several High Courts -- for instance, those of Gujarat, Maharashtra and Karnataka -- as well as the Supreme Court have been tending towards liberalizing locus standi. But some of the rulings have been ambiguous, some have been contradictory and in the eyes of many whether a matter would be admitted or not has too often depended on whether a case lands before some judges rather than others. While several pronouncements of the Courts have been far-reaching others have been unduly conservative in the sense that in these cases the judiciary has appeared unable to free itself from the roots of such litigation in private law.
For these reasons we felt that the time had come to obtain a clear ruling on the matter and that the Kamla case -- alluding as it did to an inhuman traffic affecting hundreds of thousands directly and every single citizen indirectly -- was an excellent test case. We consciously decided against going through the empty ritual of obtaining affidavits, waqaalatnaamaas and the like from a Kamla who, given her state of dependence on us and her extremely friendly disposition towards at least one of us, would have certainly certified the documents but who would not have known the meaning, import or purpose of what she was affixing her thumb impression to.
Predictably, the one respondent-namely, the Delhi Administration-that has filed a counter-affidavit has asserted that the petitioners have no right to move the Courts in the matter. The issue is, therefore, joined exactly as we had planned it should be joined.
Both so as to assist the Hon'ble Court in regard to this specific case and in the hope that the material will be useful to other groups of citizens who may want to move the Courts in the public interest, I shall set out (i) principles which Courts abroad and in India have already accepted and which can now provide the foundation for public interest litigation; (ii) features special to our circumstances today on account of which, I respectfully submit, Courts should liberalise even further the rules governing standing; (iii) reasons why citizens are duty-bound to draw such matters to the attention of the Courts and why judges are duty-bound to hear them; and (iv) the criteria by which the locus standi of citizens and groups who are themselves not the direct victims of the impugned act or event should, I respectfully urge, be judged. Finally, I shall deal with possible objections that may be raised by Central and state governments to the liberalisation of standing.
The Direction of Rulings Abroad
Courts, looking as they do to precedents more than to the real world in which they operate, took a long time to recognise the right of citizens to move them and the worth- whileness of their doing so regarding an action or event when they were not themselves the direct victims of that action or event.
In several rulings it was held that the petitioner must have a direct interest in the matter. And this "interest" was interpreted in the sense of a private right as recognised in private law. It was long held, for instance, that when it was alleged that such and such act of the executive had resulted in injury, the injury suffered by him must have been distinct and palpable, that, indeed, he must have suffered the injury to an extent greater than the average citizen-that is, the petitioner was required to demonstrate that he had suffered "special damage" before he could be heard.
He had to demonstrate three further things: that the injury complained of was of a nature which made it redressible by courts; second, that a clear, or at least a fairly traceable, causal connection was evident between the action or inaction of the executive he was bringing to the Court's attention and the injury he was alleging; and, finally, that the action he was asking the Court to direct the executive or some other agency to take or refrain from taking could be directly related to a duty which under the laws the executive or that other agency owed directly and personally to him. (The tenor of such traditional rulings can be gleaned from Anderson Vs The Commonwealth, Commonwealth Law Reports, Australia, 1932, 50 at 52; Tenessee Electric Power Company Vs. TVA, 306, US, 1937, 118 at 137-8; Attorney General (Victoria), Vs The Commonwealth, 71 Commonwealth Law Reports, Australia, 1945, 273 at 277).
The roots of such rulings in private law and their inappropriateness in an environment in which interdependence grows, an environment in which acts or negligence of one agency have effects on persons far removed, became evident over the years.
Accordingly, courts in several countries -- UK, USA, Canada, Australia etc -- have moved away from these archaic notions. I shall indicate the direction in which these courts have been moving by referring in each instance to just one or two of the scores of cases that can be cited.
Nature of the right that the petitioner may allege has been violated: The traditional view (expressed, for instance, in Tenessee Electric Power Co. Vs TVA, op cit) that a plaintiff could seek judicial review of an executive act only if he could show that that act had violated one of his legally protected discernible rights, "one of property, one arising out of contract, one protected against tortious invasion or one founded on a statute which confers a privilege" (306 US, 118 (1939) at 137-8) has given way to the position taken in, for instance, Road Review League Vs Boyd (270 F supplement 650 SDNY 1967) and Citizens Committee for the Hudson Valley Vs Volpe.
In these cases it was recognised that not only do groups interested in ecology have the requisite standing, they have it even though the relevant statutes (The Federal Highway Act and the Rivers and Harbours Act respectively) do not provide for judicial review. The reason this view was taken is important and shall provide a useful clue to us about how we may proceed in relation to several corresponding Acts under and Articles of our Constitution. It was held that as these statutes were concerned among other things with protecting the environment, it followed that the US Congress intended to grant standing to groups that were concerned that the Acts be implemented. It was held that as an interest in environment had been legislated in the relevant Act, by the very fact of enactment it had become a legally protected interest and by that very fact groups documenting its violation acquired standing for it could not be, the Court held, that the Congress enacted these laws and yet intended that there be no way to ensure that they are implemented.
Furthermore, it has been held (for instance, in Association of Data Processing Service Organisations Vs Camp 397 US 150 (1970) at 153) that far from the petitioner having to establish that he is seeking the enforcement of a legally protected right or the performance of a duty that is personally owed to him, he shall have standing provided merely that "the interest sought to be protected by the complainant must be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."
The extent of injury necessary for standing:In traditional rulings the injury had to have been sustained directly by the petitioner and to an extent or of a character different from an average member of the public. Thus, for instance, in Anderson Vs. The Commonwealth, op. cit., it was held that to qualify the petitioner must have been "more particularly affected than other people:" in Attorney General (Victoria) Vs The Commonwealth, op. cit., it was held that the petitioner must have suffered "special damage". The first step in liberalising this notion was in the increasing willingness of Courts to hear an average member of a class that as a whole was affected by the impugned act. Thus, for instance, Courts allowed tax payer suits even though the petitioner did not affirm that he was sustaining an injury greater than the average tax payer.
Next, as was but natural, Courts formally recognised (e.g., 20 US Supreme Court Reports, Lawyers Edition, 1969, at p. 978) that tax payer suits are not in any meaningful sense different from general public actions. It was evident that the taxes the petitioner as a tax payer would have paid would have been paid for general purposes of the State and must, upon receipt, have been lost in general revenues. Thus the interests he would represent before the Courts and the rights he would be espousing would be, as they would be in all public actions, those held in common by all citizens. This tendency has. since been formalised by rulings (such as US Vs SCARP, 412 US, 669, 1973) that standing will not be denied simply because many or all suffer the injury to an identical extent. And standing is now routinely granted (see, for instance, the well known Thorson Vs Attorney General of Canada, 43, DLR (3d), I, SCC, 1974); even when the petitioner alleges no special damage to himself and even when (for instance, in the case of numerous environmental groups that have been granted standing, see eg. Environmental Defence Fund Vs Hardin 428, F 2d, 1093 DC Circuit, 1970 the petitioner alleges no personal injury at all.
The nature of the injury necessary for standing:Traditionally standing was granted only where the injury was substantial and, generally, of a physical or pecuniary nature. The first step in liberalisation was to progressively dilute the extent of injury that would qualify the petitioner for approaching the Courts. Thus, while granting standing to a tax payer to file a suit asking the Court to direct a city Corporation to conduct its meeting in a productive manner on the ground that, as he paid taxes, unproductive meetings inflicted a pecuniary injury on him as a part of his taxes was being used to defray the expenses of the meetings, the Courts implicitly acknowledged that the threshold injury need be very slight indeed. The next step in liberalisation was to enlarge the nature of injuries beyond physical and pecuniary injuries to reco'rnise (eg. in Association of Data Processing Service Organisation Vs Camp, 397 US 150 (1970) at 154) that, for instance, the interest injured "may reflect aesthetic, conservational and recreational values."
"Person aggriev ed":The net result of such successive liberalisation has been that while traditionally only he was taken to be aggrieved and, therefore, standing was accorded only to him who had "suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something of wrongfully refused him something or wrongfully affected his title to something" Ex. parte Sidebotham, 1880, 14 Ch. D. 458, at 465), now Courts recognize as a person aggrieved anyone "who has a genuine grievance because an order has been made which prejudicially affects his interest" (Attorney General of Gambia Vs N'Jie 1961, A.C., 617 at 634).
Even the requirement of a "genuine grievance", which was a far cry from the older requirement of direct and substantial injury, has been gradually transmuted into one that the petitioner has a "genuine interest" in the matter. The latter too has been changed to now require only ''special'' and in cases even ''sufficient'' interest in the matter.
This evolution can be seen clearly in the manner in which environment groups have been accorded standing over the years. Thus, for instance, while in Tenessee Valley Electric Power Company Vs TVA. op cit, to secure standing a person had to show that one of his legally discernible rights, "one of property, one arising out of contract, one protected against tortious invasion or one founded on a statute which confers a privilege" had been violated, while in FCC Vs Sanders Brothers Radio Station (309 US 470 (1940) to secure standing the plaintiff had to show not just a legal right but a financial "injury in fact", in scores and scores of recent cases standing has been granted to environment groups merely because of their special interest in the issues at stake even when they had no, indeed even when they claimed no, direct economic interest in the matter, even though they alleged no personal injury. (See for instance, Scenic Hudson Preservation Conference Vs Federal Power Commission, 354 F 2d 608, (Second Circuit 1965); Road Review League Vs Boyd op cit; Association of Data Processing Service Organisations Vs Camp, op cit. In spite of the stricter interpretation of "injury in fact" in Sierra Club Vs Hickel (433, F 2 d, 24, (9th Circuit), 1970) and Sierra Club Vs Morton (405 US, 727, 1972) Courts have continued to grant standing to conservation groups "either without question or with only a brief discussion, and most (...) courts (have) found an allegation that irreparable harm would be suffered to be sufficient to confer standing", see A Rabie & C Eckard in Comparative and International Law Journal of South Africa, Vol 9, 1976, pp. 141-160, at p. 154).
Consequences:Scores of additional cases can be cited but the few that have been referred to will be enough to suggest the direction of change. These changes have far reaching operational consequences. I shall illustrate these by taking up, say, just the first point mentioned above- namely, changes in the nature of the right which the petitioner need invoke to acquire standing. Four implications will be at once evident.
First, the focus shifts from a private right of mine that has been protected by a statute to the objectives of the statute itself. This shift has, as will be immediately evident to the Hon'ble Court, very important operational implications in a host of Acts, indeed in each of the Acts that deals with a general public purpose.
Secondly, the mere fact that the interest has been recognised and codified in a law is itself sufficient and is all that is necessary for making it legally enforceable and granting me as a citizen the standing to move the Courts. Thus, on this reasoning my standing to move the Court in the Kamla case is not contingent on my showing that I personally have a right in the matter that is legally protected. The fact that the Constituent Assembly and legislatures enacted Articles (such as Article 23) and Acts (such as the Suppression of Immoral Traffic Act) itself establishes the requisite legally protected interest. Similarly, to urge the Courts to put an end to, say, collusion of a state government with poachers that, let us assume, is endangering a protected species of wild life, I do not have to myself be a member of that species (as would have been the case under the old direct-injury rulings) nor do I have to show that I have a discernible personal right protected under such and thus law to enjoy the continued existence of that species of wild life. The mere fact that the Constitution (e.g., in Articles 48A and SIA (g)) and laws (e.g., The Wild Life Protection Act of 1972) legislate the objective of protecting these species itself makes it a legally protected interest for safeguarding which citizens can approach the Courts.
Third, it is recognised that Acts are legislated to be implemented and therefore, that, in case the specific mode prescribed in the Act proves insufficient, citizens can approach the Courts to ensure the fulfillment of legislative intent. This too, as we shall see, is an eminently desirable premise for reasons that shall become clear when in the Indian context we put the enforcement machinery many Acts prescribe alongside the condition of the agencies that have been charged with the responsibility of implementing the Acts.
Fourth, as will be evident from the passage cited above from Association of Data Processing Service Organization Vs Camp op. cit., where public causes are involved Courts tend to interpret the statutes broadly so that, as in that case, instead of looking for precise provisions that directly spell out the right of the petitioner or duty of the respondent the Courts require only that the interest sought to be protected fall "arguably within the zone of interests �." Protected by the statute.
Synoptic indicators:Three observations -- the first by the Australian Law Commission, the second by two eminent jurists and the third by the Canadian Supreme Court -- will help characterise the trend sketched above and indicate the current approach of Courts in liberal democracies to locus standi:
- In its oft-cited paper, "Standing: Public Interest Suits" Supplement to the Australian Law Journal, October 1977, the Australian Law Commission proposes that far from requiring direct and substantial injuries, the expression "interest" too be discarded because of its association with private law 'and private particularly financial or property, rights. Instead, it says, standing should be granted if the plaintiff has a "real concern" in the issue at stake. Indeed, it proposes that to minimise the possibility of public interest groups being denied access the standing formula should be expressed negatively in the following manner: "relief is not to be denied on standing grounds unless the court is satisfied that the issues sought to be raised are of no real concern to the plaintiff. The legislation," the Commission goes on to say, "should make clear that 'concern' is not to be judged by traditional rules and, particularly, that no property interest is necessary" (ibid, p. 17).
- "Restrictive rules about standing", Schwartz and Wade point out, "are in general inimical to a healthy system of administrative law. If a plaintiff with a good case is turned away merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases, where they wish to sue merely out of public spirit, why should they be discouraged?", (B. Schwartz and HWR Wade, QC, Legal Control of Government, 1972, p. 29).
- Even in a case such as Thorson Vs. the Attorney General of Canada (43 DLR, 3d, 1974, SCC) where the formal provision of law was that the action could be initiated only with the consent of an officer of State, such as the Attorney General, Courts tend to take the position that if on merits the matter is worth considering it should not be turned down merely on some technicalities regarding standing. The remarks of Justice Laskin speaking for the majority in the Supreme Court of Canada encapsulate the current outlook of the Courts even on realtor matters:
"A more telling consideration for me, out on the other side of the issue, is whether a question of constitutionality should be immunized from judicial review by denying standing to anyone to challenge the impunged statute. That, in my view, is the consequence of the judgments below in the present case. The substantive issue raised by the plaintiff's action is a justiciable one; and prima facie, it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication.., where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayer's action and denying any standing at all when the Attorney-General refuses to act, it may choose to hear the case on the merits." (ibid, pp. 7, 18).
The Direction of Rulings in India
Indian Courts too have moved towards enlarging the access of citizens to them. They too have moved beyond the traditional standing criteria that had their roots in private law.
Once again, it is not necessary in view of the detailed knowledge of the Hon'ble Court on the matter to give an exhaustive enumeration of cases. References to just a few cases will be sufficient to indicate the trend. The point to notice in each case is not the bare remark of the Court but the reason on account of which it deemed fit to enlarge the ambit of standing, and the categories of persons and groups to which it thought fit to grant standing. These reasons even more than the dicta provide the first building blocks for putting together a coherent view on standing in the Indian context.
First, our Courts have long recognised that in certain circumstances the direct victim is just not in a position to move them and so in such cases a third party must be given an opportunity to bring the facts to the attention of the Courts. This reasoning underlies, for instance, the liberalisation of standing criteria in regard to habeas corpus petitions.
Second, in a succession of cases the Supreme Court has laid down that the notion of an "aggrieved person" to whom standing may be given cannot be confined in a narrow, dogmatic formula:
- Thus in J.M. Desai Vs Roshan Kurnar (AIR, Supreme Court, 1976, at p. 581) it observed, "The expression, 'aggrieved person' denotes an elastic, and to an extent an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition... Its scope and meaning depend on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him..."
- In Bar Council of Maharashtra Vs M.V. Dabholkar and others, (SCC, 1975 (2) at pp. 710-11) too the Court reaffirmed that the meaning of the expression "aggrieved person" would vary from circumstance to circumstance, from statute to statute, that while in private law its ainbit was narrow, in regard to professional conduct and morality it had to be taken as having a wide import (ef. ibid, paras 27, 28).
Moreover, even when standing has been confined to one who can demonstrate personal direct injury, minuscule injury has been accepted as establishing a petitioner's standing;
- In N.N. Chakravarty Vs Corporation of Calcutta (AIR Calcutta 1960, p. 102 at p. 112) it was held that a rate payer has a right to control deliberations of the Corporation as "meetings of the Corporation must necessarily cost money in establishment expenses, the cost of printing, the cost of correspondence and in various other ways. Apart from this," the Court held, "the waste of time involved necessarily causes financial loss to the Corporation indirectly." As the petitioner was a rate payer it was his money that was being wasted. Accordingly, he had a right to move the Court.
- Similarly, in Vardarajan Vs Salem Municipality, (AIR, 1973, Madras, p. 55) it was held that a tax payer could challenge the decision of the municipality to erect a statue even when this was being donated out of private funds as, once erected, the statue would have to be maintained and thus the taxes collected from the rate payer would in some part be used for the purpose.
- In Nabaghan Vs Sadananda (AIR, 1972, Orissa, p. 188) members of the general public who worship or who have the right to worship the deity (and in view of our laws this must automatically include everyone) were recognised as persons who hada sufficient interest in the appointment of trustees and the proper management of the temple's or estate's affairs.
Third, Courts have recognised that in several circumstances, while the responsibility of moving the Courts is that of the State, the State may not be inclined to initiate action and that in such cases, the general rule as well as specific provisions of laws apart, third parties must be given an opportunity to initiate corrective action. In criminal cases, for instance, the general position is that as crime injures all of society the State alone on behalf of all is to be the master of prosecution. But, to cite just one instance, in PSR Sadanand vs Arunachalam (AIR, Vol. 67, June 1980, 856) a five judge bench of this Hon'ble Court recognised that for various reasons the State may not pursue a criminal case as it should and that, therefore, a private party should be allowed to initiate and pursue a criminal case where allowing it to do so will be in the public interest, where the State has not pursued a case for reasons which do not bear on the public interest but are prompted by private influence, mala fides and other extraneous considerations (see, ibid, paras 14 and 26).
Fourth, and more directly as far as the Kamla case is concerned, Courts have recognised the right to move them of a member of a class that as a whole is likely to be adversely affected by an act or its absence.
- In Sunil Batra Vs Delhi administration, (SCC, 1980, (3), p. 488) the petitioner, Sunil Batra, was clearly granted standing as a member of a class-that of prisoners who were being lodged in unsatisfactory conditions.
- *In K.R. Shency Vs Udipi Municipality (AIR, 1974, SC. 2177 at 2182) the Court affirmed the general proposition that "the Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone."
- In Ratlam Municipality Vs Vardichand and Others (67 AIR, Supreme Court Oct., 1980 p. 1622) the Court clearly laid down that while the Civil and Criminal Procedure Codes confine the power to initiate remedial measures to officials of State-in the specific example mentioned by the Court, to a magistrate under Section 133 of the CrP.C. -- social justice and public duties are owed to the people at large and, therefore, an ordinary citizen has a right to trigger off the jurisdiction vested for the people's benefit in a public functionary (see in particular, ibid. paras 12-14. p. 1628).
- In Fertilizer Corporation Kamgar Union, Sindri Vs Union of India, (344) AIR, Supreme Court, 1980, p. 344) the five judge bench was even more explicit. (The question of access to Courts was dealt with at length by Justice V.R. Krishna Iyer on behalf of Justice P.N. Bhagwati and himself. The Chief Justice on his behalf and those of justices Murtaza Fazal Ali and A.D. Koshal concurred with his conclusions on this; see ibid para 25, p. 351). The Court recognised the right of members of a trade union to move it on a matter that may (but, in fact, was not going to) affect their jobs and livelihood.
Fifth, the Courts have recognised the competence of a person who, though a member of the class to which the victim belongs, is not himself affected by the impugned act;
- In Karkare Vs Shavde (AIR, Nagpur, 1952, p. 330), Masehullah vs Abdul Rehman (AIR, Allahabad, 1953 p. 193) etc. Courts have held that any private citizen can file a petition of quo ivarranto to challenge the appointment of a public official even though his personal rights are not directly affected. In Sunil Batra Vs Delhi Administration, op. cit this Hon'ble Court acknowledged the right of one prisoner to move it in regard to the alleged torture of another prisoner.
Sixth, our Courts have gone much further and held that I need not be the member of any restricted class- such as the class of persons liable to be affected by the impugned action-to acquire standing, that my special interest in, that my special concern for the issue at stake indeed the mere fact of my being a citizen is enough to assure me standing on a matter of public importance.
- Since 1979 in half a dozen cases the Gujarat High Court has admitted writs filed by the Consumer Education and Research Centre, Ahmedabad, and passed orders on them. These relate to tariff increases by the Gujarat State Electricity Board, the Gujarat State Road Transport Corporation and Indian Airlines, to excise refunds claimed by manufacturers on grounds of wrongful levy, to a low-cost insurance policy floated by the Life Insurance Corporation, to excessive billing by the telephone department in Ahmedabad, to the winding up of the Machu Dam Inquiry Commission by the Gujarat government. Some of these cases have already reached the Supreme Court.
- The Hon'ble Supreme Court has itself accorded standing to citizens' groups in several cases-Citizens' for Democracy was allowed to intervene in Union of India vs. Sunil Batra, 1979, Hindustani Andolan was allowed to intervene in the Bearer Bonds case, People's Union for Civil Liberties was allowed to intervene in the hearings on the National Security Ordinance etc. In each of these cases the intervenors intervened not by alleging personal injury but as groups representing responsible citizens who were concerned about the matter under argument.
- The Hon'ble Court has allowed individual citizens, citizens' groups not merely to i1itervene in matters raised by others but to initiate matters themselves even though the petitioners alleged neither that they had suffered personal injury nor that they belong to a restricted class -- i.e. a class narrower than the general public-members of which had suffered direct personal injury. Thus,
- Common Cause, a Delhi based citizens' group was allowed to initiate proceedings on inequities of specific pension rules
- Two professors of Law from the University of Delh were allowed to initiate proceedings urging an examination of the functioning of a women's protective home in Agra even though neither claimed that he or she as an individual or any relative of their's had been injured by the manner in which this home was functioning.
- The Free Legal Aid Committee, Jamshedpur, was allowed to initiate proceedings to rectify the conditions in Jamshedpur jail even though neither the Committee nor the member who moved the petition on its behalf claimed any personal injury or that he belonged to a class whose members had suffered (Writ Petition No. 53/80).
Several other instances can be cited. It would be more instructive instead to recall that even in a case such as Fertilizer Corporation Kamgar Union, op cit, where the Court was dealing with petitioners who belonged to a class members of which could claim to be directly affected, its dicta embraced citizens in general.
In its far-reaching observations the Court said:
- "Courts can be moved by "someone with real public interest," by "the public minded citizen," by one who belongs to an organisation that has a special interest in the subject matter, by one whose concern is deeper than that of a busy-body (ibid, paras 40, 41, 48);
- That a liberal view has to be taken of standing and representative segments of the public or at least a section of the public which is directly interested or affected shall have the right to approach the Courts and bring to their attention the infraction of public duties and obligations when public property is dissipated (ibid, para 23)
Implications of dicta:Dicta of the Courts in the kinds of cases that have been cited clearly cover our right to move the Court in the matter of Kamla and the inhuman traffic in women that her case represents. But even more important than the dicta, far reaching though they are, is the underlying reasoning that led the Courts in each instance to liberalise the traditional rules of standing. Even a little reflection will show that the very reasons that have already been acknowledged and accepted by the Courts apply in a much wider set of circumstances than the specific cases which the Courts have already settled. To illustrate the matter I shall take up a few cases mentioned above.
Consider first the reason on account of which Courts have acknowledged the right and worthwhileness of third parties, to move a habeas corpus petition. The reason obviously is that the victim-physically incarcerated possibly incommunicado-may not be in a position to approach the Courts. This being the case, the reasoning has been, if the Courts refuse to listen to anyone but the victim himself, no relief at all will be possible in any number of cases. But, clearly, a similar difficulty in the victim approaching the Courts can also arise in cases other than the one in which the victim is physically incarcerated. Consider the following circumstances:
- What if the direct victims -- be they landless labourers, brick kiln workers or tribals in a forest -- though not physically incarcerated can be shown to the satisfaction of the Court to be so terror stricken as to convince the Court that it is just unrealistic to expect them to approach it? Is the reasoning that persuaded Courts to recognise the right and worthwhileness of third parties to move habeas corpus petitions not directly applicable to such a circumstance? And is such a circumstance all that academic in contemporary India?
- What if the victims, though neither in physical incarceration nor terrorised. are not able for other reasons to approach the Courts? Consider a species of wild life, the black buck for instance, that is protected under The Wild Life (Protection), Act 1972, but which is endangered by, say, collusion between game wardens and poachers. It is not likely that a wild buck, even though neither incarcerated nor terrorised, would find a way to file a writ before a Court. Can no one then come to move the Court to ensure implementation of the Act? Even less extreme cases leave little room for doubt. For instance, consider the state of workers dying of sclerosis in Mandsaur (Indian Express 23-10-79; 24-10-79; 14-8-80; 13-7-81 and 15-7-81) or of adivasis losing limbs collecting metal on a firing range in MP (Indian Express May 27-29, 1981). The victims here have been forced by economic circumstances to make a living in ways that endanger their health and lives and are thus standing proof that the State is not doing what it is obliged by, say, Article 39 of the Constitution to do. These victims are not incarcerated, nor are they terrorised nor are they as unable to approach a Court as the wild bulk. But economic privatisation has pushed them into an avocation that already endangers and has in fact injured their health and lives and this same desperation will keep them from moving the Courts. On a direct extension of the habeas corpus reasoning, may someone not then move the Courts to request that they direct the executive to do its duty under Article 39 or that it ensure the safety and health of these desperate workers under other laws?
In the habeas corpus rulings, what is important-the fact of physical incarceration or the recognition that the victim is unable to approach the Court directly?
Next, consider the fact that in cases such as N.N. Chakravarty vs. Corporation of Calcutta, op cit, Vardarajan vs Salem Municipality, op cit. and Nagabhan vs Sadananda op cit, the courts have accepted a minuscule injury to be sufficient to establish a tax payers standing or that of a worshipper. In the latter case, indeed the injury must in the view of many be entirely subjective and yet the Courts found it sufficient. Were I to uncover facts that showed that collusion between a forest minister and forest contractors had begun to inflict such depredations on forests in the Terai region that soon enough the rate of soil erosion would jump up, that the siltation rate of dams in the area will increase, that as a result landslides and floods would begin to ravage the area, will the quantum of injury to which I as one residing in the Indo-Gangetic plain would then be subjected be less than to the worshipper who was liable to be injured by the erroneous conduct of a temple's affairs?
Secondly, even in a case such as N.N. Chakravarty vs Corporation of Calcutta, how can locus standi be confined to one who pays taxes and thus can claim that he is injured by the Corporation's meetings being disorderly because a bit of his money must have been used to defray the expenses of the meetings? Is a person living within the Corporation's limits but in a jhuggi and too poor to be charged taxes to be denied standing merely because he is too poor to be charged taxes? Will he not be adversely affected by disorderly conduct of the Corporation's affairs? In a country where only a minuscule part of the population is rich enough to be charged taxes, can standing be confined to rate-payers when the issue affects non-rate-payers as well? Moreover, if N.N. Chakravarty is to be granted standing to ensure orderly conduct of the Corporation's meetings, is he to be denied standing in regard to the disorderly meetings of a State legislature or a house of Parliament? Do his taxes not help finance these meetings? Or is it that while disorder in the Corporation is liable to injure Mr Chakravarty, that in a State Assembly or Parliament is not liable to affect him?
Or consider the reasons the Supreme Court accepted in according standing to a Bar Council in Bar Council of Maharashtra Vs M.V. Dabholkar and others (op cit). The Court held that as a body of advocates the Bar Council had standing because, apart from the fact that the Advocates Act specifically assigned investigative and disciplinary powers to Bar Council, (i) the "power" (ibid para 50) and (ii) the "reputation (ibid, para 52) of each of its members was liable to be prejudicially affected by the misconduct of an advocate. As such the Bar Council the Court held, was a "person aggrieved" by the misconduct of an advocate (ibid, paras 30, 31 even though it had suffered no legal grievance, nor any pecuniar loss nor indeed did it have any personal interest in the matter (ibid. pains 28. 29). The Court explicitly recognised that in this case the Bar Council was engaged in public interest litigation of an issue in which a section of the whole of the community was involved (ibid, para 54).
But when such considerations are admitted -- namely, my "reputation" and "power" as a lawyer -- can access be denied to an average citizen who claims no more than a stake in the Rule of Law arid demonstrates that the Rule of Law will be harmed by the professional misconduct of the advocate? Is the citizen's stake in this Rule of Law inconsequential and only the advocate's stake in his "power", "reputation" or means of livelihood consequential? It has been held, (for instance, in AK. Nair Vs Election Commissioner, AIR, 1972, Kerala 5) that an elector is a person interested in the proper conduct of an election even if he is not personally and directly affected by it. Well, if as an elector I have standing to approach the Courts when the misconduct of a candidate or an electoral officer undermines free and fair elections, do I not as a person with a stake in the Rule of Law have a standing to move the Courts when that Rule of Law as vital to our survival as fair and free elections is threatened? Or is it that I must in addition to the generalised stake in the Rule of Law show that my "power" and "reputation" too are jeopardised? This too cannot be sustained as in A.K. Nair the elector was not asked to demonstrate anything other than an average elector's interest in free and fair elections.
Third, recall the reasons on account of which in a case such as Sadhanatham Vs Arunchalalam (op cit) the Court thought fit to permit a private individual to initiate, affect or revive criminal prosecution. The circumstances of that murder case, the Court said had convinced it that the State was not liable to pursue the case for reasons which did not bear on the public interest, that instead its reasons were prompted by private influence, malefides and other extraneous considerations (AIR, Vol 67, June 1980 para 26).
Now, as should be evident, a criminal case is not the only circumstance where the State may not be pursuing a case or enforcing a law for reasons which do not bear on the public interest but are prompted by private influence, malefides and other extraneous considerations. How can it then be that given the reluctance of the State to prosecute a criminal in a murder case the Court would grant a third party standing but given the identical (and equally well documented) reluctance of the State to stop the denudation of a forest because of, say, the collusion between a Minister and some forest contractors the Court would deny standing to a third party? What is the crucial fact in Sadanatham Vs Arunachaiam -- the fact that the case at issue is a criminal case or that there are in the view of the Court reasons to believe that the agency charged with pursuing the prosecution is not likely to pursue it? Happily the fact is that Courts have granted standing xo the concerned citizen where he has been able to show that the State which is charged with the duty to prosecute offenders under, say, The Indian Forest Act is not likely to do so- witness the admission by the Karnataka High Court of Writ No. 466-80 regarding the disposal of Kodagu Forest land.
Next, consider just three of the reasons that the Court listed in Fertilizer Corporation Kamgar Union, op cit. and consider their applicability to situations more general than the sale of equipment in one public sector plant:
- "Public enterprises", the Court observed, "are owned by the people and those who run them are accountable to the people." Would the principle not apply to forest and other public assets constituting our national material wealth?
- Courts must entertain citizens, this Hon'ble Court observed, as parliamentary control of public enterprises is "haphazard and ineffective". But is the haphazardness and ineffectiveness of parliamentary control limited to the public sector? What about corruption involving officers of State? Is the State liable to pursue such cases with any vigor? Witness the manner in which sworn affidavits of agencies like the CBI have since January 1980 been replaced by fresh-and equally solemnly sworn-affidavits stating that the earlier affidavits were misrepresentations of facts.
- Courts must allow citizens to move them on matters of public concern so that, the Court said, they do not, in despair, take to the streets and thus destroy the very foundations of the Rule of Law. Again, as will be at once obvious, the reasoning is of wider applicability than cases involving public sector units and the reassurance that the Courts are an avenue through which things can be mended is one that needs to be given in circumstances broader than the conduct of a public sector enterprise.
Fifth, recall the Courts' rulings in quo warranto cases affirming that every citizen has a sufficient interest in the conduct of public affairs to have the required standing to challenge the wrongful appointment of a public official. But how can it be that while I have standing to challenge the appointment of an official, I do not have the standing to draw the Courts attention to his misconduct when he, for instance, starts making money by allowing contractors to denude forests, by allowing them to build sub-standard houses out of public funds and so on?
Sixth, recall the repeated affirmations by the Courts (e.g. in K.R. Shenoy Vs Udipi Municipality, op cit, or Ratlam Municipality vs Vardichand and others, op cit.) that it is the duty of Courts to ensure that public bodies and public officials perform their statutory duties and that citizens have a right to move the Courts to ensure compliance by officials. A case such as that of Kamla falls squarely within the ambit of these rulings for, as is shown below, the prevalence of the inhuman racket in women can in substantial measure be traced to the failure of agencies of the State to perform duties required of them under the Constitution and under several specific laws. Indeed, a great deal of public interest litigation requires no further basis than the dicta and reasoning in rulings such as these in which the Courts have reaffirmed (i) their duty to ensure that officials perform their statutory duties and (ii) the right of citizens to move them to ensure such compliance. Consider the wide applicability of the following observations of this Hon'ble Court in the
Ratlam Municipality case:
"The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. ... The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new 'enforcement' dimension, not merely through some provisions of the Cr.P.C.... but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Court and follow up legislation direct them to do is defied or decried wrongfully. The wages of violation are punishment, corporate and personal..." (Ratlam Municipality Vs Vardichand and others, AIR Supreme Court, 1980, October, paras 16, 24).
Four Points in the Kamla Case
The dicta in cases such as the ones that have been cited above and the reasoning that led to the dicta directly ensured that citizens like the petitioners have a standing qua citizens to move the Courts so that they ensure that the executive takes steps to end the inhuman traffic in women.is not necessary to recapitulate each of the points made above and show its one-to-one correspondence with the facts of the Kamla case. I shall confine myself to just four remarks. First, the Courts, as pointed out above, have repeatedly held that c