021 2001 Public Interest Litigation

21
PUBLIC INTEREST LITIGATION

M.S. Ganesh*
I INTRODUCTION
THE JUDICIAL perambulations of the Supreme Court, at the instance of

affirmative action litigants in the year under survey, have taken it over vast areas
of what is essentially administrative terrain. The landscape constantly changes.
In literal terms, it covers environment and ecology: depredation of forests and
forest cover; air and water pollution, vehicular, industrial and noise pollution;
the aqua eco system, wild life, starvation, smoking and public health. In socio
economic and moral terms, that terrain also encompasses areas such as persons
with disabilities, sexual harassment, rehabilitation, police brutality and custodial
death and under trial prisoners, ancient monuments, ragging, medicare and banned
drugs, criminalisation of politics, electoral reforms, communal riots, female
foeticide, state largesse and so on.
As the court crisscrosses this interminable terrain, as a sentinel on the qui
vive, it becomes on overlap judicial territory also. It is at this point of interface
between constitutional executive responsibility and constitutional judicial
obligations, when the air of judicial enforcement rushes in to fill the vacuum
caused by administrative abdication, that affirmative action comes into its own.
For it is Public Interest Litigation (PIL) that confronts the one and invites
resolution by the other. At the core is a seeming paradox: the one organ of state
is apparently invested with the widest discretion in its executive role, while the
other arm of the state, with implicit and self imposed constraints, plays its
supervisory and regulatory and protective role. From its coign of vantage, looking
down at concerned sectors of administrative alacrity or masterly inactivity, the
apex court sometimes stares with a wild surmise like stout Cortez and his men,
silent upon a peak in Darien.
But when the court is invited by way of PIL to speak and pronounce upon
matters of moment, it seeks to descend from those chill and distant heights to
the market place of ideas, to the terrain of life. Three decades on since the
advent of PIL, today it would be a truism to say that the court has entertained
pro bono publico causes mostly in relation to enforcement of the right to life,
in its most expansive interpretation, under article 21 of the Constitution and very
infrequently in regard to commercial causes and aspects of economic policy.
Senior Advocate, Supreme Court of India, New Delhi.
www.ili.ac.in The Indian Law Institute

558 Annual Survey of Indian Law [2001
This approach has been most recently reiterated in the BALCO case.1 Therefore,
it is logical to commence this survey with the BALCO decision.
II SUPREME COURT AND PIL
Disinvestment
The case involved the validity of the decision of the central government to
disinvest and transfer 51 per cent shares of BALCO to Sterlite Industries Limited.
Before the Supreme Court, four proceedings came to be clubbed together: three
transferred cases and one writ petition by BALCO under article 32. Of the three
transferred cases, the first was a writ petition filed on 23.2.2001 in the Delhi
High Court challenging the said decision of the government. It was filed by one
B.L. Wadhera "a persistent public interest litigant who has to his credit fairly
large number of Writ Petitions filed in the Delhi High Court" but who "was not
an employee of the Company, nor was he prospective bidder". He filed the writ
petition as a PIL. On 24.2.2001 the BALCO Employees' Union also filed a writ
petition for the same relief in the same high court. On that very date, another
employee of BALCO filed a writ petition for similar relief in the Chattisgarh
High Court. While these writ petitions were pending in the said high courts, a
calling attention motion seeking to disapprove the proposed disinvestment was
discussed and defeated in the Lok Sabha. Soon thereafter the shareholders'
agreement and share purchase agreement between the Government of India and
Sterlite Industries was signed. Subsequently, the Union of India applied for
transfer of the three pending writ petitions from the high courts to the Supreme
Court. After notices were issued on the transfer petitions, BALCO received
various notices from the authorities in Chattisgarh for alleged breaches of various
provisions of the M.P. Land Revenue Code and the Mineral Concession Rules.
Thereupon BALCO filed a writ petition under article 32 in the Supreme Court
challenging the validity of these notices. The writ petitions pending in the Delhi
and Chattisgarh High Courts were transferred to the Supreme Court and BALCO's
writ petition was clubbed therewith for hearing.
It appears on the face of the judgment that in none of the three transferred
cases, did the petitioners invoke article 21 of the Constitution or rest their
challenge on contravention of that article 21. The employees principally
complained of infringement of their fundamental rights under articles 14 and 16
of the Constitution. They contended that before disinvestment BALCO was
indisputably 'state' within the meaning of article 12 of the Constitution. They
contended that the disinvestment and conversion of BALCO into a privatized
undertaking visited them with adverse civil consequences and, therefore, in the
first instance, they had a right to be heard before and during the process of
disinvestment. They complained of deprivation of both substantive and procedural
rights. The substantive rights comprehended the right to equality, equal pay for
equal work, right to pension, right to enquiry and reasons before dismissal and
BALCO Employees Union (Regd.) v. Union of India, 2001 (8) SCALE 541 (Judgment dated
10.12.2001, by a bench of 3 Judges B.N. Kirpal, Shivaraj V. Patil and P. Venkatarama Reddy, JJ).

Vol. XXXVII] Public Interest Litigation 559
similar vested rights. The procedural benefits and rights claimed included
observance of the principles of natural justice as well as the right to approach
the high court under article 226 and the Supreme Court under article 32 of the
Constitution in the event of violation of any of their rights. The State of
Chattisgarh, through its Advocate General, supported the petitioning employees.
Insofar as the two petitions by the BALCO Employees' Union and one by
its individual employees, respectively, were concerned, their locus standi to
invoke the high court's jurisdiction under article 226 could not be doubted, nor
was it canvassed by any of the contesting respondents. In dealing with the
employees' writ petition, therefore, the court addressed the question whether the
decision to disinvest "is amenable to judicial review and if so within what
parameters and to what extent.2 On this issue, the court held that the "process
of disinvestment is a policy decision involving complex economic factors" and
that "it is neither within the domain of the courts nor the scope of the judicial
review to embark upon an enquiry as to whether a particular public policy is
wise or whether better public policy can be evolved".3 The court stated: "Nor are
courts inclined to strike down a policy at the behest of a petitioner merely
because it has been urged that a different policy would have been fairer or wise
or more scientific or more logical The courts have consistently refrained
from interfering with economic decisions as it has been recognized that economic
expediencies lack adjudicative disposition and unless the economic decision,
based on economic expediencies, is demonstrated to be so violative of
constitutional or legal limits on power or so abhorrent to reason, that the courts
would decline to interfere. In matters relating to economic issues, the Government
has, while taking a decision, right to "trial and error" as long as both trial and
error are bona fide and within limits of authority. There is no case made out by
the Petitioner that the decision to disinvest in BALCO is in any way capricious,
arbitrary, illegal or uninformed".4
In arriving at this conclusion, the court traced a line of authorities as justifying
it. It is pertinent to assess the derivative justification of the court's conclusion
with reference to its earlier decisions. The court first cited and quoted from the
Bank Nationalisation case5 wherein it had said that it was not for the court to
consider the relative merits of the different political theories or economic policies
and while it has the power to strike down a law on the ground of want of
authority, "but the court will not sit in appeal over the policy of Parliament in
enacting a law". In BALCO the court proceeded to transplant this enunciation
of law into the field of executive policy. "Applying the analogy, just as the court
does not sit over the policy of Parliament in enacting the law, similarly, it is not
for this Court to examine whether the policy of this disinvestment is desirable
or not".6 Surely, there is a material difference between legislative policy as
2 Id. at 559, para 29.

3 Id. at 566 paras 46-47.
4 Ibid.
5 Rustom Cavasjee Cooper v. UOIf (1970) 1 SCC 248 at 294 para-63.
6 Supra note 1 at 560 paras 33-34.

reflected in enacted law by the legislature, on the one hand, and executive policy
that does not derive its sustenance from any enacted law, on the other. The
legislative and the executive do not stand on the same plane, nor do their policies.
The analogy adopted by the court appears less than apt. As the court itself stated
subsequently in its judgment,7 even economic policy decisions that are violative
of constitutional or legal limits on power or abhorrent to reason would be
susceptible to judicial review. Such considerations, however, cannot serve to
question legislative policy at all. Legislative policy, per se, is beyond the pale
of judicial review. Any challenge can lie only to the subject matter of the statute
on grounds of legislative competence or to actual provisions of the particular Act
as infringing one or more of fundamental rights or as offending against or
contravening other constitutional limitations. Hence also the proposition that
legislative declaration of nexus between the particular law made under article
31-C and article 39 is inconclusive and justicable. Article 39 provides that the
state shall, in particular, direct its policy towards securing the various matters
specified in clauses (a) to (f) thereof, while article 31-C provides that no law
containing a declaration that it is for giving effect to the policy of the state
towards securing all or any of the directive principles laid down in part-IV shall
be called in question in any court on the ground that it does not give effect to
such policy.8 The court can tear the veil to ascertain the real nature of the law
and as to whether its provisions effectuated the professed policy of the legislature
in enacting them. That is a far cry from saying that the court sits in judgment
on legislative policy. But these constraints cannot operate when the court is
asked to judicially review a given measure of executive policy, economic or
otherwise, and that too, a policy without the sanction of a statute.
Indeed, not only on behalf of the BALCO employees but also on behalf of
the State of Chattisgarh, through its Advocate General, it was specifically
contended that the implementation of the policy of disinvestment in the specific
case of BALCO had failed to evolve a comprehensive package of socio economic
and political reform and to structure the decision making process so as to achieve
in a just, fair and reasonable manner, the ultimate goal of the policy and that the
interest of the workers in the industrial sector cannot be undermined and, therefore,
any decision which was likely to affect the interests of the workers and employees
as a class as a whole cannot and ought not to be taken to the exclusion of such
class. In this light, the BALCO decision leaves much to be desired. It opens an
area of executive policy discretion that would permit the state to neutralize and
render inefficacious beneficial socio economic legislation and also remove
virtually all constitutional constraints even on administrative policy that lacks
statutory sanction or authority. The court's reference to its capacity to interfere
with economic decisions only if they are "demonstrated to be so violative of
Id. at 566 para 47.

See Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Minerva Mills Ltd. v. UOI,
AIR 1980 SC 1789; Sanjeev Coke Co. v. Bharat Cooking Coal Ltd., AIR 1983 SC 239; Tinsukia
Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709; Assam Silimanite v. UOI, (1992)
Supp 1 SCC 692.

constitutional or legal limits on power or so abhorrent to reason" and to the

government's "right" to "trial and error" so long as "both trial and error are
bonafide and within limits of authority" then turn out to be mere sops. Neither
in BALCO nor in any of the earlier decisions cited and relied upon in BALCO
has the court delineated the degree of 'so-ness' or the standards of good faith
and of limits of authority that would persuade or impel the Court to interfere in
executive policy and its exercise. Such a nebulous perception or doctrine has
perilous portents verging on the abdication of judicial review.
In fact the very next decision cited and passage relied upon in BALCO
underscores the point. Fertilizer Corporation Kamgar Union (Regd) v. Union of
India9 decided by a constitution bench, involved the sale of certain plants and
equipment of the Sindri Fertilizer Factory of the Fertilizer Corporation of India,
a government company. From the concurring judgment of Krishna Iyer J for
himself, and Bhagwati J, the BALCO judgment quotes a passage,10 wherein the
Judge explicitly stated: "The court cannot usurp or abdicate, and the parameters
of judicial review must be clearly defined and never exceeded." BALCO makes
no such attempt but leaves it to 'so-ness'-a grey area. For that matter, even in the
leading judgment of Chandrachud, CJ. for himself, Fazal Ali and Koshal, JJ, it is
stated: "Public Enterprises are owned by the people and those who run them are
accountable to the people. The accountability of the public sector to the Parliament
is ineffective because the Parliamentary Control of Public Enterprises is 'diffuse
and haphazard".11 In any event, sale of plant and machinery of an undertaking of
a government company that continues to be one, which does not involve divestiture
of ownership of the company or its undertaking, is a very different thing from
divestiture of ownership and control of the company itself by transfer of majority
shareholding, euphemistically described as disinvestment. In this process, by reason
of such privatization, by exercise of executive discretion without legal sanction,
the entity is removed from the domain of state action and amenability to the
fundamental rights. All it takes is 51 per cent of the shareholding. The consequence
is that the citizen employee stands externed from the territory of articles 14, 19 and
21. The anomaly created by the BALCO decision is that whereas a law qua policy
is subject to basic constitutional test as to whether it truly effectuates its professed
policy, an executive measure of the same dimension is exempt from such scrutiny.
This creates a palpably incongruent legal regime. The BALCO decision does not
appear to be informed by such vital considerations or even to be alive to them.
The BALCO judgment next draws support from State of M.P. v. Nandlal
JaiswaP2 in which the change of the policy decision taken by the state government
to grant licence for construction of distilleries for manufacture and supply of
country liquor to existing contractors was challenged. In R.K Garg v. UOP3
which involved the constitutional validity of the Special Bearer Bonds (Immunities
9 Fertilizer Corporation Kamgar Union (Regd.) v. UOI, (1981) 1 SCC 568.

10 (1981) 1 SCC 568 at 584, para-35.
11 Id. at 579-80, para 23.
12 (1986) 4 SCC 566 at 605-06, para-34.
13 (1981) 4 SCC 675.

and Exemptions) Act, 1981 on grounds of article 14, a constitution bench of the
Court per majority had held that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights. Adverting to that
decision, in Nandlal Jaiswal, the court observed that, however, "executive decision
may not be placed on as high a pedestal as legislative judgment in so far as
judicial deference is concerned". G.B. Mahajan v. Jalgaon Municipal Council14
involved a policy decision of the government whereby validity of a contract
entered into by the municipal council with a private developer for construction
Of a commercial complex was impugned. Peerless General Finance and
Investment Co. Ltd. v. Reserve Bank of India,™ involved the constitutional validity
of certain directions issued by the Reserve Bank of India in exercise of its
statutory powers under certain provisions of the Reserve Bank of India Act,
1934, and in the light of the weighty observations made by the court in an earlier
round of litigation, Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd.,16 requiring residuary non banking companies receiving
deposits under savings scheme to deposit with public sector banks or invest in
unencumbered approved securities the aggregate amount of their liabilities to
the depositors and to disclose as liabilities in books of account and balance
sheets the total amount of deposits received with a view to secure for the
depositors return of the amount payable at maturity. The very passage from the
Peerless decision17 quoted in the instant case states: "It is well settled that a
public body invested with statutory powers must take care not to exceed or
abuse its power. It must keep within the limits of the authority committed to
it. It must act in good faith and it must act reasonably". Thus, it was a case
where the parameters were delineated and they were statutory. Premium Granites
v. State of Tamilnadu1* involved a challenge to rule 39 of the Tamil Nadu
Minor Mineral Concession Rules, 1959 on the ground of article 14. That rule
was framed in exercise of statutory powers conferred by the Mines and Minerals
(Regulation and Development) Act, 1957. The said rule 39 provided that
notwithstanding anything contained in those rules, the state government, if in
any case, are of opinion that in the interest of mineral development and in the
public interest it is necessary so to do, they may, by order and for reasons to
be recorded, grant or renew a lease or permission to quarry any mineral or
allow the working of any such quarry on terms and conditions different from
those laid down in the said rules. Rule 39 was upheld. Delhi Science Forum
v. UOP9 put in issue the validity of the decision of the Government to grant
licences under the Telegraph Act, 1885 to non government companies for
establishing, monitoring and working of telecommunication system of the
country pursuant to government policy of privatization of telecommunications.
14 (1991) 3 SCC 91 at 104, para-22.

15 (1992) 2 SCC 343.
16 (1987) 1 SCC 424.
17 Supra note 15 at 375, para-31.
18 (1994) 2 SCC 691 at 715, para-54.
19 (1996) 2 SCC 405.

M.P. Oil Extraction v. State of M.P.20 involved the validity of the industrial
policy of the state government relating to agreements entered into for supply of
Sal seeds for extracting oil. State of Punjab v. Ram Lubaya Bagga21 involved the
validity of the change of government policy in regard to the reimbursement of
medical expenses to its serving and retired employees. Bhavesh D. Parash v.
UOP2 related to the validity of section 45-S of the Reserve Bank of India Act,
1934. And, finally, Naramada Bachao Andolan v. UOP3 related to the construction
of the Narmada Dam.
It would be seen, therefore, that each one of the antecedent authorities cited
in BALCO is distinguishable on facts. It follows that the law governing the
formulation of and challenge to executive policy in general, and economic policy,
in particular, must be read as coloured and conditioned by the fact matrix of the
given case.24 That is why, ultimately, the Supreme Court in BALCO was
constrained to fall back upon a decision of the Madras High Court and one of
the Karnataka High Court in which the fact situations were more akin to the
BALCO case. It is instructive and revealing to advert to them. In Southern
Structural Staff Union v. Southern Structurals Limited15 decided by a single
judge (Jayasimha Babu, J) the respondent company which was incorporated in
1956 as a public limited company, was under private management and was
closed in 1970 after it became sick. In 1971, the Government of Tamil Nadu
stepped in and took over the management of the company with a view to ensuring
the continued functioning of the industrial units owned by it. Subsequently, in
1978, the state acquired over 99 per cent of the shares of the company which
thus became a government company. As it incurred losses over the years and
even a reference to the Board of Industrial and Financial Reconstruction under
20 (1997) 7 SCC 592.

21 (1998) 4 SCC 117.
22 (2000) 5 SCC 471.
23 (2000) 10 SCC 664.
24 It is unnecessary for the purposes of the present survey to divagate on the issue of ascertaining
the ratio decidendi of a case or the rationes of a line of decisions cited as precedents. The
BALCO decision does not address this aspect at all Juxtaposition of quotations from earlier
decisions, without adequate appreciation of their fact context, is not necessarily enunciation of
the law or with clarity. Suffice it to say that none of the earlier decisions cited as precedents
in BALCO was rendered in a factual context like that of BALCO, namely, that a public sector
undertaking (PSU) is privatized by relinquishing the government's controlling shareholding. In
the converse situation i.e. taking over of management or nationalization executive/economic
policy is always one (a) sanctioned and authorized by a law and (b) has generally covered more
than one entity belonging to the same class of industry. In privatization, neither of these
considerations obtain and relinquishment of state ownership and control by disinvestment is
done on ad-hoc basis. There is no overarching policy that informs such ad-hoc decision making
process. It is one thing to constitute a public sector disinvestment commission and that too, a
"non statutory advisory body". It is quite a different thing to formulate a concerted policy that
is liable to be informed, in terms of Article 37 of the Constitution, by the directive principles
in part-IV which are "fundamental in the governance of the country". So much so, that "it shall
be the duty of the State to apply these principles in making laws". A fortiori, it is the duty of
the state to adhere to these principles in the framing of executive policy and, particularly,
economic policy, especially in the context of Articles 39, 41 and 43-A.
25 (1994) 81 Comp Cas 389 (Mad).

section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985

yielded no prospects of its revival, the state government decided to disinvest
from the company. The company's employees challenged that decision by means
of a writ petition before the Madras High Court on the ground that the impugned
disinvestment would deprive the employees of the rights conferred by articles 14
and 16 or of the right to approach the high court under article 226 or the
Supreme Court under article 32 of the Constitution. The single judge dismissed
the writ petition. In doing so, he enunciated a rather startling legal proposition;
"Article 12 of the Constitution does not place any embargo on an instrumentality
of the State or 'other authority' from changing its character".26 No authority was
cited and no precedent was disclosed to support this proposition. In BALCO the
Supreme Court has quoted extensively from this judgment, including the just
quoted passage and immediately proceeded to hold: "The aforesaid observations,
in our opinion, enunciate the legal position correctly. The policies of the
Government ought not to remain static. With the change in economic climate,
the wisdom and the manner for the Government to run commercial ventures may
require reconsideration. What may have been in the public interest at a point of
time may no longer be so. The Government has taken a policy decision that it
is in public interest to disinvest in BALCO. An elaborate process has been
undergone and majority shares sold. It cannot be said that public funds have
been frittered away. In this process, the change in the character of the company
cannot be validity impugned. While it was a policy decision to start BALCO as
a company owned by the Government, it is as a change of policy that
disinvestment has now taken place. If the initial decision could not be validly
challenged on the same parity of reasoning, the decision to disinvest also cannot
be impugned without showing that it is against any law or mala fide".27
It is apparent that since the BALCO bench could not sustain its ratio decidendi
on stare decisis, it had to clutch at the straw of a high court judgment and that
too of a single judge to lend weight to its conclusion. Three serious issues stem
from such an approach. First of all, the decision of the Madras High Court in
Southern Structurals was not in appeal before the Supreme Court. To affirm
such decision of a high court collaterally, and that too one which enunciates an
unprecedented proposition of constitutional interpretation, does not enure to the
advancement of the law or to enhancement of its weight. Secondly, such process
of affirmation of a high court's decision does not augur well for the declaration
of binding law under article 141 of the Constitution. The question whether or not
article 12 of the Constitution or any other article places an embargo on an
instrumentality of the state or other authority from becoming a constitutional
chameleon or a Dr. Jekyll and Mr. Hyde was not an issue that was canvassed
before the Supreme Court. To take a quantum judicial jump from executive
policy to the protean possibilities of state entities or instrumentality is to leave
the jurisprudential gap unbridged. Thirdly, in any event, and most importantly,
the question as to whether or not article 12 or any other constitutional provision
26 Id. at 395-D to 396-F.

27 (2001) 8 SCALE 541 at 567-68 paras-50-51.

places any such embargo raises the substantial question of law as to the
interpretation of the Constitution. If that be so, in terms of article 145(3), the
minimum number of judges who are to sit for the purpose of deciding any case
involving a substantial question of law as to the interpretation of the Constitution
shall be five. The three judge bench that heard and decided the BALCO case
was not constitutionally competent to pronounce upon the said question.
The other high court decision to which BALCO took recourse was Babu
Mathew v. Union of!ndiaf% rendered by a division bench (S. Rajendra Babu and
R.V Raveendran, JJ.) of the Karnataka High Court. That was a case in which
employees of Bharat Electricals Limited (BEL), a government company
incorporated under the Companies Act, 1956, questioned the procedure adopted
by the central government in implementing the policy of disinvestment in public
sector enterprises, in particular, BEL. The government had disinvested about 30
per cent of its shares and intended to disinvest a further 19 per cent, thus
retaining eventually 51 per cent or the controlling shareholding in the company,
unlike in the case of BALCO where it had disinvested upto 51 per cent. The
policy of disinvestment as such was not under challenge. The judgment of the
division bench reproduces in extenso the relevant extracts from the Government
of India's Industrial Policy Statement of 1991 which led to partial disinvestment
in selected PSUs. Nowhere does the policy say that the government would yield
control of any such PSU by disinvesting its majority and controlling shareholding.
All that the policy stated was-and it is italized for emphasis by the division
bench: "In the case of selected enterprises, part of government holdings in the
equity share capital of these enterprises will be disinvested in order to provide
further market discipline to the performance of public enterprises". It is in that
context that the division bench stated in the passage29 quoted in BALCO that
"Any economic reform, including disinvestment in PSEs, is intended to shake
the system for public good" and that "while it is true that any policy of the
Government should be in public interest, it is not shown how prior consultation
with employees of a PSE before disinvestment is a facet of such public interest".
Doubtless, if the government had disinvested its majority shareholdings in BEL,
the division bench might have been persuaded to take a different view.
One other justification adduced by the Supreme Court in support of its
reasoning and conclusion is the fact that the policy decision relating to the
proposed disinvestment in BALCO was tested by way of a motion in the Lok
Sabha and defeated there. As a matter of law, it is entirely moot whether a
resolution on a motion on a particular course of action stands on the same plane
as a piece of enacted legislation or even as a statutory approval of subordinate
legislation.30
28 (1997) 90 Comp Cas 455 (Kant).

29 (1997) 1 Comp U 72, 89, para-37 (Karn).
30 The voting on a bill and its passage into an Act constitutes a codification of law and it stands
on the highest plane. Thereafter, its validity can be tested only on the ground of legislative
competence or on the ground of its being ultra vires one or more of the constitutional provisions,
including the fundamental rights. Similarly, statutes often provide for the framing of subordinate
or delegated legislation by way of rules or regulations with a rider that all such rules or

Such an approach as adopted in BALCO leads to strangely anomalous

results, as that decision itself reveals. After citing and copiously quoting from
the case law mentioned above, the judgment draws the following conclusion:
"As a result of disinvestment of 51 per cent of the shares of the company, the
management and control, no doubt, has gone into private hands. Nevertheless,
it cannot, in law, be said that the employer of the workmen has changed. The
employees continue to be under the company and change of management does
not in law amount to a change in employment".31 This is scarcely a considered
and acceptable statement of the law. The moment the company qua juristic
persona ceases to possess the legal character of a state enterprise, the law
governing it undergoes a complete transformation. If the entity was earlier an
instrumentality of the state within the meaning of article 12 of the Constitution,
it now ceases to be accountable in the same way, substantively and procedurally.
The employment law governing it gets altered from the domain of public law to
the common law of master and servant. Even vis-a-vis third parties or the world
at large, the company becomes a purely commercial entity of a private character
without any of the incidents of public law attaching to it. It ceases to be amenable
to the writ jurisdiction under article 226 and so on.
In fact, in Sindri Fertilizer Factory case, the constitution bench had
anticipated and held the very opposite of what the three judges bench in BALCO
now has to say on the point. In his concurring judgment, Krishna Iyer J pointed
out: "When a plant is shut down, as in this case, it has been, ... the workers
employed in it are ordinarily thrown out of employment. Assuming some
patchwork arrangement to give lingering employment for some time more were
offered as a measure of alleviation, that certainly is not equal to the steady and
assured service in a public sector undertaking which is a Government company
owned entirely by the President of India. Their economic fortunes and employment
status are affected by the amputation of a limb of the company What, if any,
are the fundamental rights of workmen affected by the employer's sale of
machinery whose mediate impact may be conversion of permanent employment
into precarious service and eventual exit? The active co-existence of public
sector autonomy, and judicial control of public power tending to go berserk,
is one of the creative claims upon functional jurisprudence".32
The BALCO bench non suited B.L. Wadhera and declined to entertain his
transferred writ petition on the ground that he was a mere busybody. In doing
so, the Court traced the law of locus standi as declared by it since 1981.33 The
regulations must be tabled in the legislature for its approval or disapproval. Accordingly, a
certain legal sanctity attaches to such subordinate or delegated legislation and hence it is placed
on the same plane as the parent statute. On the other hand, the approval of an executive policy
decision through a motion and resolution in the legislature neither constitutes codification nor
invests the policy decision with legal sanctity.
31 Supra note 1 at 573, para-60.
32 (1981) 1 SCC 568 at 581, para-29.
33 S.R Gupta v. UOI, (1981) Supp SCC 87 at 215 para-20 and 219-20 para 24 per Bhagawati, J.;
Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295 at 334-35 para-61; Janata Dal
v. H.S. Chowdhary, (1992) 4 SCC 305 at 348 para-109 and 349 para-110 per Pandian, J.;

court pointed out that while PIL was initially invoked mostly in cases connected
with relief to the people and the weaker sections of society and in areas where
there was violation of human rights under article 21, but subsequently petitions
have been entertained in other spheres. However, "PIL is not a pill or panacea
for all wrongs ... There have been in recent times, increasingly instances of
abuse of PIL".34 However, public interest litigtion was not meant to be a weapon
to challenge the financial or economic decisions which are taken by the
government in exercise of their administrative power.35
As regards BALCO's own writ petition filed under article 32 challenging
the various show cause notices issued to it by the authorities in the State of
Chattisgarh the court declined to entertain the same since the petitioner had
adequate alternative remedies under the Acts under which the notices were issued
and also under article 226 of the Constitution.
This excursus on the BALCO decision brings out the emergence of a strange
new doctrine on the horizon of PIL. It may be called the 'so-ness' doctrine. It
is entirely a novel enunciation. As articulated by the BALCO bench, the doctrine
states that economic policy decisions or expediencies are susceptible of
interference by the court only if they are "demonstrated to be so violative of
constitutional or legal limits on power or so abhorrent to reason". The doctrine
is open-ended. The 'so-ness' highway has no milestones; the degree of 'so-ness'
has no benchmarks. It cannot be predicated as to when violation of constitutional
or legal limits on power or when the confounding of reason would transgress the
pale of permissibility. Thus, the 'so-ness' doctrine expresses a principle of internal
tension: the flow of constitutional soul and the feast of juridical reason is an
inarticulate major premise that may be waved like a magic wand to approbate
or reprobate an economic policy decision. If perceived as a restatement, if not
an advancement, of the law, how does the 'so-ness' doctrine accord with
contemporaneous judicial exposition on the subject?
In our constitutional scheme, political power, constitutionally attained,
precedes the formation of government. It is only then that government can
devise policies and expediencies, including economic ones, and implement them
either by legislative or by executive action or both. If the process of establishment
of political power and hence of government, which is the antecedent step for and
the sine qua non of government, is itself subject to the constitutional limits,
policy making in the aftermath cannot claim any exalted or exempted status. In
other words, the fundamental principle that informs the doctrine of the basic
structure and the basic and essential features of the Constitution is the entrenched
principle that the donee of a limited power could not by the exercise of that
power convert the limited power into an unlimited one. This constitutional
fundamental is at once the negation of any 'so-ness' doctrine.
If the law laid down in BALCO is to stand either in the face of stare decisis
Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 at 502-03, paras-17-
18 and Narmada Bachao Andolan v. UOI, (2000) 10 SCC 664 at 763 paras 232-34.
34 (2002) 2 SCC 333 at 376 para 78 & 377 para 80.
35 Id. at 381 para-88.

on matters of policy in general and of economic policy in particular or next to

the line of authorities culminating thus far in B.R. Kapur's case,35a it would
create first a dichotomy between judicial review in areas of political
constitutionalism and judicial review in areas of economic constitutionalism.
Secondly, it would amount to elevating the executive's economic policy decision
to a higher plane even than a legislative policy and judgment. Indeed, in rendering
the BALCO decision, the court, was uncomfortably conscious of these anomalies
and contradictions. As already stated, the BALCO decision36 cited and quoted
from State of M.P. v. Nandlal Jaiswal,1,1 which in turn had referred to R.K. Garg
v. UOI,38 and stated: "What we said in that case in regard to legislation relating
to economic matters most equally apply in regard to executive action in the field
of economic activities, though the executive decision may not be placed on as high
a pedestal as legislative judgment in so far as the judicial deference is concerned".
In any case, the inherent uncertainty and adhocism of the 'so-ness' doctrine
as propounded in BALCO is apt to create casuistical argument. As it is, such
arguments tend to permeate and inform the defence or justification of state
action or inaction. On the one hand, there is a quest for the quality of life in its
most holistic sense. On the other hand, ensuring of such quality of life, which
is affordable principally by economic means and wherewithal and by enforcement
of healthy legislative policy impinging upon obscurantist and deleterious socio
cultural practices, is attenuated by the judicial approach of granting play in the
joints to the executive. This disequilibrium is reflected in the stream of judicial
decision making in the year under survey.
Election matters
In B.R. Kapur v. State of Tamil Nadu39 decided just two and half months prior
to the BALCO decision, a constitution bench of the Supreme Court affirmed that
very constitutional fundamental. That case arose on PIL for a writ of quo warranto
against Ms. J. Jayalalitha's appointment as Chief Minister of Tamil Nadu. In his
leading judgment, S.R Bharucha J for himself, Y.K. Sabharwal and Ruma Pal, JJ,
adverted to the aforesaid constitutional fundamental.40 He then went on to hold in
no uncertain terms: "The Constitution prevails over the will of the people as
expressed through the majority party. The will of the people as expressed through
the majority party prevails only if it is in accord with the Constitution".41 Rejecting
decisively the argument that since the governor had made the appointment, his act
was unchallengeble, Bharucha, J. pointed out that that does not give the appointee
any higher right to hold the post and that if an appointment is contrary to
constitutional provisions it will be struck down.42 Just as categorically, he gave
35a See infra note 39.

36 Supra note 1.
37 (1986) 4 SCC 566 at 605-06. para-34.
38 (1981) 4 SCC 675.
39 B.R. Kapur v. State of Tamil Nadu, (2001) 7 SCC 231.
40 Id. at 291, 292 paras 28-29.
41 Id. at 300, para 50.
42 Id. at 301, para 51.

short shrift to the further contention that in going into the matter the court would
be entering a political thicket. He observed: "It is the duty of this Court to interpret
the Constitution. It must perform that duty regardless of the fact that the answer
to the question would have a political effect".43 In support, he quoted a passage
from the judgment of RN. Bhagwati, J in State of Haryana v. UOIu which
concludes: "It is necessary to assert in the clearest possible terms, particularly in
the context of recent history, that the Constitution is suprema lex, the paramount
law of the land and there is no department or branch of Government above or
beyond it". In like vein, in his concurring judgment, G.B. Pattanaik, J stated more
tersely: "The Constitution does not permit brute force to impede the Constitution".45
"It is the essence of the rule of law that the exercise of the power by the State,
whether it be the legislature or the executive or any other authority, should be
within the constitutional limitation and if any practice is adopted by the executive,
which is in violation of its constitutional limitations, then the same could be
examined by the Courts".46 Indicating the extent to which the court could go,
Pattanaik J, quoted from the opinion of the United States Supreme Court in Lucas
v. Colorado General Assembly,41 wherein it was held that "the fact that a
apportionment plan is adopted in a popular referendum is insufficient to sustain its
constitutionality or to induce a court of equity to refuse to act". The opinion
further held: 'The protection of constitutional rights is not to be approached either
pragmatically or expediently, and though the fact of enactment of a constitutional
provision by heavy vote of the electorate produces pause and generates restraint
we cannot, true to our oath, uphold such legislation in the face of palpable
infringement of rights ... It is too clear for argument that constitutional law is not
a matter of majority vote".48 This statement of the law would, according to Pattanaik
J, more appropriately be applicable to a case where the Constitution is the supreme
document which should bind the people of India as well as all constitutional
authorities. Further, adverting to what has been adumbrated above, Pattanaik, J.
said: "A Constitution is a thing antecedent to a Government, and a Government
or a good governance is a creature of the Constitution".49 Even Brajesh Kumar J
who also concurred, was constrained to conclude his judgment thus: "The argument
about implementing the will of the people in the context indicated above is
misconceived and misplaced".50
Vehicular pollution
In its ongoing judicial supervision of vehicular pollution in Delhi, the Supreme
Court has sought to adopt a strict posture. In M.C. Mehta v. UOI,51 the court
43 Ibid, para 53.

44 (1977) 3 SCC 592 at 660-61, para 149.
45 Supra note 39 at 308, para 69 at 309.
46 Id. at 309, para 70.
47 377 U.S. 713, 736 (1964).
48 Id at 737, fn. 30.
49 (2001) 7 SCC 231 at 312 para 72.
50 Id. at 317, para 83.
51 (2001) 3 SCC 756.

referred to certain directions issued by it to check rapid deterioration of air

quality in in Delhi and consequent health and environmental damage. These
directions had been issued as far back as 1998 and, most importantly, were to
the effect that the entire city bus fleet was to be steadily converted to a single
fuel mode of CNG by 31.3.2001. Unfortunately, as noted by the court, neither
the government authorities nor the private bus operators acted seriously or
diligently in taking steps to comply with these directions, despite strong indication
that non compliance might invite contempt. In that context, the court stated that
directions given for safeguarding health of the people, a right provided for and
protected by article 21 of the Constitution, would override provisions of every
statute including the Motor Vehicles Act, if they militate against that constitutional
mandate. Therefore, the court declined to grant a blanket extension for compliance
with its directions of 1998. However, in public interest and with a view to
mitigate the sufferings of the commuter public in general and school children in
particular, the court made some relaxation and exemptions. These directions
were issued in March. A month later, the court found to its dismay that the Delhi
Administration was reportedly not complying with the court's orders.52 The court
was constrained to invoke article 144 of the Constitution, which enjoins all civil
and judicial authorities to act in aid of the Supreme Court, and to direct the
Chief Secretary, Government of Delhi to place on affidavit the Delhi Government's
stand regarding implementation of the court's orders.
Environment
The court was beset with similar ongoing problems relating to relocation of
polluting industries causing ecological degradation and impairing sustainable
development.53 The court found that directions issued by it five years earlier in
1996 were yet to be diligently complied with. The court perceived itself "in
discharge of its social duty and obligation as the guardian angel of the society".54
It described the litigation itself as "a true public interest litigation for the protection
of the society and to avoid a deliberate peril arising out of entrepreneurial failure
and total apathy and non concern for social good and benefit".55
The court adopted a similar approach even in private adversarial litigation.
Thus, in Hinch Lai Tewari v. Kamala Devi,56 it had occasion to say: "It is
important to notice that the material resources of the community like forests,
tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate
ecological balance. They need to be protected for a proper and healthy
environment which enables people to enjoy a quality life which is the essence
of the guaranteed right under Article 21 of the Constitution".
Right to life
Besides, the environmental and ecological quality of life, the court also had
52 M.C. Mehta v. UOI, (2001) 3 SCC 763.

53 M.C. Mehta v. UOI, (2001) 4 SCC 577.
54 Id. at 581 para-8.
55 Id. at 589 para-3.
56 (2001) 6 SCC 496 at 501, para 13.

occasion to reiterate and reaffirm the dignity of life under article 21 of the
Constitution. Danial Latifi v. UOP1 involved a challenge under articles 14, 15
and 21 of the Constitution to the Muslim Women (Protection of Rights on
Divorce) Act, 1986, which Parliament had enacted in the wake of Mohd. Ahmed
Khan v. Shah Bano Begum.5% A constitution bench of the court came to the
conclusion that the Act actually and in reality codified what was stated by the
earlier constitution bench in the Shah Bano case. In the Shah Bono case, the
court had expounded the rationale behind section 125 Cr PC as being provision
for maintenance to be paid to a divorced Muslim wife to avoid vagrancy or
destitution on her part. Citing Olga Tellis v. Bombay Municipal Corporation59
and Maneka Gandhi v. UOI,60 the Court reasserted that the right to life and
personal liberty guaranteed by article 21 comprehended the right to live with
dignity. In so far as the impugned provisions of the 1986 Act deprived a divorced
Muslim woman of her right to maintenance from the husband, providing for
such maintenance to be paid only for the period of iddat and thereafter to make
her run from pillar to post in search of her relatives one after the other and
ultimately to knock at the doors of the wakf board did not appear to be a
reasonable and fair substitute of the provisions of section 125 Cr PC. The
provisions of the impugned Act were, therefore, violative of the equality provisions
of article 14 and the prohibition of discrimination on the ground of religion
under article 15, since divorced women of other religious communities such as
Hindus, Buddhists, Jains, Parsis or Christians would not suffer from such disability.
The court, therefore, read down the provisions of the Act to save it from
unconstitutionality.
Female foeticide
Embryonically speaking, the violation of the girl-child's right to live, literally,
under article 21 is violated endemically at her very conception. This ghastly and
socio-economically impelled practice exists as female foeticide or infanticide.
Indeed, so pervasive and entrenched is the resort to this most reprehensible form
of homicide that it has even appropriated advancement in medical technology
and compromised medical ethics for its own end. Medical science developed
pre-natal diagnostic techniques to ascertain the sex of the unborn child. These
techniques came to be abused by sections of the populace who could afford sex
determination tests and by doctors and medical institutions who could profit
thereby to ascertain the sex of the foetus and to abort if it was female. So
rampant had this abuse become that Parliament enacted the Prenatal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994. The Act was
brought into force tardily in 1996, when rules under the Act were also enacted.
But the implementation and enforcement of the Act by the central and state
governments appears to have been negligible. It took a PIL under article 32 of
57 (2001) 7 SCC 740.

58 (1985) 2 SCC 556.
59 (1985) 3 SCC 545.
60 (1978) 1 SCC 248.

the Constitution by two NGOs, one of them a health research centre, and a
doctor having experience and technical knowledge in the field, to goad the state
into action.61 The matter hardly seem to require any explication of the law but
only the serious enforcement thereof as would enure to 'life' within the meaning
of article 21. Therefore, the Supreme Court issued specific and detailed directions
to the central government, the central supervisory board constituted under the
PNDT Act and the rules, the state governments/union territory administrations
and the appropriate authorities to implement the provisions of the Act and the
rules with vigour and rigour. These directions would be traceable to article 144
of the Constitution which enjoins all authorities, civil and judicial, in the territory
of India to act in aid of the Supreme Court.
Miscellaneous
Similarly, during the year under survey, in various spheres such as
environment and ecology, vegetation cover, the aqua eco system, wild life,
privation and starvation, physical disabilities, rehabilitation, police brutality, and
custodial death and so on, the Supreme Court has been in seisin of various
ongoing cases in which directions are being issued from time to time. The orders
and directions in these cases would fall in the domain of article 144. It is not
necessary to catalogue them for the purpose of the present survey except to
indicate that some of them may eventually give rise to arguable questions of law
and statutory construction in due course.
Ill HIGH COURTS AND PIL
During the year under survey, in their PIL jurisdiction, the high courts have
largely had to deal with matters of local concern. Some of these cases, however,
raise issues of social justice with a far wider reach. The high courts have had
to grapple with a range of problems that, properly speaking, should have been
addressed by the executive. At the same time, the ingenuity of engineered PIL
by professed public spirited citizens/bodies (as distinct from bona fide pro bono
publico actions) as much as technical defences by the state to ward off curial
investigations into administrative apathy and default occasioned pronouncements
on the threshold.
In the process, the high courts have had to deal with front-door issues of
locus standi and maintainability, the scope of PIL and its abuse, public policy,
as much as citizenship and civil rights in their myriad forms.
Locus standi and maintainability

A piquant starting point is the full bench decision of the Andhra Pradesh
High court in A.P. Scheduled Tribes Employees Association v. Aditya Pratap
Bhanj Dev.62 The petitioner, a state-wide association registered under the Societies
Registration Act, 1860, sought a writ in the nature of mandamus holding that the
61 Centre For Enquiry into Health and Allied Themes (CEHAT) v. Union of India, (2001) 5 SCC
577.
62 2001 (6) ALT 433 (FB).

appointment of the 1st respondent to the post of district and sessions judge was
void and unconstitutional on the ground of fraud and misrepresentation, inasmuch
as he had procured a false social status certificate to secure the post which was
reserved for the scheduled tribes. Interestingly enough, the state as the 4th
respondent merely defended the appointment on merits. It was the affected
appointee who raised the objection of locus standi on a two fold basis: (i) none
of the members of the petitioner association claimed a judicial post and hence
they cannot have any grievance; (ii) the issue involved does not have element
of public interest. He further pointed out that the challenge had come 14 years
after his initial appointment. On this issue, thefull bench unanimously upheld the
petitioner's locus standi. In doing so, inevitably, the majority judgment reviewed
the authorities of the Supreme Court on various facets of the issue such as its
denunciation of the practice of persons claiming benefits conferred on STs by
producing fake and fraudulent certificates, the indifferent attitude of the nation
towards tribals, the principles, governing PIL and fraud on the Constitution.
Among other decisions, the full bench cited and quoted from Janata Dal v. H.S.
Chowdhary,61, wherein PIL was held to be governed by a broad and relaxed rule
of locus standi and was equated with the actio popularis of Roman law whereby
any citizen could bring an action in respect of a public delict, and D. C. Wadhwa
v. State of Bihar64 wherein it was observed that when a fraud on the Constitution
is committed, every citizen may complain to a constitutional court.
As contra-distinguished from a registered association such as that in the
above Andhra Pradesh case, it would appear that an unincorporated association
has no locus standi to invoke article 226 of the Constitution, including by way
of a PIL. This is the view taken by the High Courts of Allahabad,65 Madhya
Pradesh,66 Orissa,67 Calcutta,68 and Karnataka.69 Thus in Bangalore Mahanagara
Nagareeka Kriyasamithi v. Bangalore Mahanagara Palike,70 an unregistered
association, which claimed to have been formed for taking steps to solve the
grievances of citizens of Bangalore and for safeguarding their civil rights, filed
a PIL questioning the implementation of a property tax self assessment scheme
framed and published by the respondent municipal corporation as being ultra
vires the Karnataka Municipal Corporation Act, 1976, as also article 265 read
with article 14 of the Constitution. In the first place, the division bench of the
Karnataka High Court, relying on its earlier division bench decision, drew a
distinction between an individual tax payer with a specific legal interest and an
association, which could not be considered a rate payer, for the purposes of
maintainability. Secondly, since an unincorporated body of individuals is not a
juristic person, it cannot be held to be sui juris or competent to maintain a writ
63 AIR 1993 SC 892.

64 AIR 1987 SC 572.
65 Indian Sugar Mills Association v. U.R Labour Department, AIR 1951 All 1.
66 S.K. Kalani and Co. v. Iron & Steel Controller, AIR 1969 MP 25.
67 1972 (88) Cut LT 1338.
68 Sand Carriers Owners Union v. Board of Trustees for the Port of Calcutta; AIR 1990 Cal 176.
69 Thimmaraya Swamy v. Gurumurthy; 1991(2) Kar LJ 300.
70 2001 (3) Kar LJ 123 (DB).

petition for ventilating grievances either for its members or for serving the
public cause.
A third category, of course, is where a number of individuals associate
themselves in instituting a common writ petition by way of PIL. In this, as in
the other two categories of petitioners in PIL, the court would examine whether
the proceeding was a use or abuse of PIL. Thus, in L. Nagaraj v. Doddaiah,11
the petitioners claiming to be public spirited citizens filed a writ petition in 1994
challenging an order made in 1989 by the land reforms appellate authority
granting occupancy rights of the lands in question in favour of the first respondent.
The Karnataka High Court held that the petitioners had no locus standi to thus
collaterally impeach the decision of the statutory authority which had become
final. Similarly, even a registered voluntary organization and its office bearers
must establish their bona fides in instituting a PIL. In Dr. Sonia Hurra v. Registrar,
3rd Spl. Land Acquisition Co-operative Society & Others,12 an "Action Group"
invoked article 226 seeking various reliefs such as directing the Registrar of Co-
operative Societies to appoint an administrator to take charge of the 4th respondent
Co-operative Bank and to direct the Reserve Bank of India to take appropriate
proceedings under section 35A of the Banking Regulation Act, 1934. A division
bench of the Gujarat High Court found that some of the office bearers of the
petitioner organisation had pending proceedings vis-it-vis the bank, including
one under section 138 of the Negotiable Instruments Act and another before the
co-operative tribunal. As such the court dismissed the petition with costs.
Where an individual espouses a civic cause and an issue that falls in the
public domain, he cannot be turned off at the gates by the writ court. Thus, in
Joseph v. District Collector,73 the petitioner, a social worker, invoked the Kerala
High Court's jurisdiction for abatement of a public nuisance, namely, the
obstruction caused to a public road, by the existence of a land with a building
thereon rendering the traffic dangerous to the public. The land and building in
question abutted on one of the most important roads connecting Cochin city with
a junction. While many land owners on either side of the road voluntarily
surrendered their lands for widening the road, the owner-respondent in the writ
petition expressed her inability to render free surrender of her property. The
respondent-municipal corporation took the stand that the said land owner should
be compelled to surrender her land without compensation. The corporation further
contended that the petitioner had no locus standi to move the court so as to
compel the corporation to acquire the land for widening the road, that funds
could not be set apart for development of roads and that the writ petition was
not filed to advance public interest. Invoking the fundamental principles of the
law of nuisance embodied in the maxim sic utere tuo ut alienum non laedas (so
use your property as not to injure others), the court further held that the corporation
qua local authority had a legal and statutory obligation under the Kerala
Municipality Act, 1994 to abate the nuisance. Rejecting the corporations contention
71 2001 (4) Kar LJ 493 (DB).

72 (2001) 42 Guj LR 1551 (DB).
73 2001 (1) KLT 672 (DB).

on the maintainability of the petition and on the petitioner's locus standi, the
court held that if public nuisance is so wide spread in its range or indiscriminate
in its effect it is a cause for concern to the community at large and a member
of that community can espouse its interests. In this behalf, the Kerala High
Court naturally marshalled a catena of authorities of the Supreme Court in its
support.74
Similarly, misuse of allotted land and profiteering thereby would come within
the PIL jurisdiction. In Baliram v. State of Maharashtra,15 the petitioner sought
a writ of mandamus to the official respondents to take back possession of certain
lands which had been allotted to the private respondent, a former chief minister
of Maharashtra, by cancelling the certificate of allotment and the occupancy
rights. On the records summoned by and placed before the Aurangabad bench
of the Bombay High Court, the division bench found that: (a) the allotted land
had not been used for the purpose for which it was allotted viz. Agricultural
Processing Industry cum residence, (b) part of the land had been sold by making
plots; and (c) the balance of the allotted land had remained unused and barren
even after a period of about 30 years, although the statutory provisions of the
Land Revenue Code required that such lands must be resumed. The court did not
countenance these contentions.
What applies on land equally applies in air. In J. Kapur v. Union of India,16
a Mumbai resident and a frequent flier by Indian Airlines and Air India sought
a writ of mandamus directing the Union of India, the Director of Civil Aviation,
and the Director, Air Worthiness to discharge their statutory duties under the
Aircraft Act, 1934 and the Aircraft Rules, 1937 in respect of the safety and air
worthiness of the Aircraft of IA and AI, all of whom were arrayed as respondents.
Adverting to the history of civil aviation in India since Independence, including
the number of air crashes, the petitioner contended that the crashes occurred
principally due to the fact that the aircraft deployed had outlived their design
economic life. As such, air travel was imperilled and affected the rights guaranteed
by article 19(l)(d) and 21 of the Constitution. Predictably, the respondents
questioned the locus standi of the petitioner. The high court gave short shift to
the respondent's ^contention and added that "a judicial scrutiny of the matter
would instill a sense of confidence and trust in the minds of the travelling
public, thereby sub-serving a public interest". And what applies to air also applies
to ether, so to speak. In Kushal Guttedar v. State of Karnataka,11 the petitioner,
a registered excise contractor, questioned an auction held and acceptance of the
bid of the private respondent to vend liquor in Bangalore urban district on the
ground that the excise rules had been vitiated. Admittedly, he had not participated
in that auction. The Respondents challenged his locus standi on the ground that
74 Ratlam Municipality v. Vardichand, AIR 1980 SC 1622; Fertilizer Corpn. Kamgar Union v.
UOI, AIR 1981 SC 344; Chameli Singh v. State of UP, (1996) 2 SCC 549; Chairman, Railway
Board v. Chandrima Das, (2000) 2 SCC 465; Jayaraj v. Commissioner of Excise, (2000) 2 KLT
820 (SC).
75 (2001) 3 Mh LJ 742 (DB).
76 (2001) 3 Mh JJ 688 (DB).
77 (2001) 5 Kar LJ 497 at 501-02, para-5.

he was not a bidder. The Petitioner asserted it on the ground that he was a
registered excise contractor and he had filed the petition to save the state exchequer
by bringing to the notice of the court the malpractice indulged in by the authorities
and also the violation of the excise rules. Accepting his locus standi qua citizen
and excise contractor, the Karnataka High Court pointed out that if a lamentable
state of affairs is brought to its notice, "It is the duty of the court to the public
that the truth and the validity of the allegations made be inquired into", relying
upon Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav GosavLls
A rather peculiar case, a variation on the above theme, also came up before
the same high court. In P. Mallesh v. The Senior Divisional Manager, Indian Oil
Corporation Ltd. ,79 the petitioner was a dealer of the respondent oil company in
high speed diesel oil and motor spirit. He sought the quashing of a 'no objection
certificate' issued by the official respondent to the private respondent for putting
up a retail outlet pursuant to resitement. Initially, he filed the petition in his
individual, private interest. Subsequently, he amended his petition to convert it
additionally into a PIL, claiming that as a citizen of India he was interested in
upholding the rule of law and, therefore, had approached the court to thwart the
Respondent from acting contrary to their own norms and rules. A Division
Bench of the Karnataka High Court held that "the petition filed in the present
form is totally misconceived and is not maintainable in law". The same fate was
met by an MLA and 11 citizens of Nalanda in Bihar before the Patna High
Court. In Ram Charitra Prasad Singh (M.LA., Hilsa) v. State of Bihar™ the
petitioners sought a mandamus to the state authorities directing them to continue
the registration of land (upon sale or transfer) in Nalanda District on rates of
valuation prevalent prior to a certain government order issued on 26.5.2000.
Their rates of valuation given in the said government order were impugned as
being in contravention of the procedure prescribed in statutory rules relating to
levy of stamp duty. None of the petitioners were either selling or purchasing
lands so as to be affected directly by the said government order. Though they
claimed to hold the brief of the entire public, the court declined to certify the
matter as a PIL and dismissed the petition stating: "As a generality interference
is sought from the High Court. The issues which have been raided is (sic) within
the capacity of a member of the Legislative Assembly to seek an answer from
the Government as of right; for such are the nuances of Parliament democracy".
Trust an audacious advocate to go one step further. In Satya Narayan Mahto
v. State of Bihar,81 the petitioner, who claimed to be an advocate, was residing
in a flat reserved for members of the legislative assembly, In his petition, he
contended that a number of persons came to him to complain about the policy
of the government which is not being adhered to by persons who have been on
certain positions and posts beyond the stipulated tenure and should be moved
out. Questioning his credentials and locus standi, a division bench of the Patna
78 AIR 1987 SC 294.

79 2001 AIHC 2-32 (DB).
80 AIR 2001 Pat 46 (DB).
81 (2001) 1 BLJR 315 (DB).

High Court dismissed his writ petition holding that "this was a wrong brief
misplaced in the hands of a wrong person". From secular interlopers to religious
mischief mongers, they meet the same result. In Mohd. Gulam Rasool v. State
of Biharf2 the petitioners sought to construct a mosque on their own property,
which turned out to be within close proximity of a Brahmasthan. There was
already an existing old mosque in another part of the village which disturbed no
one. The district administration disallowed the petitioners from constructing or
establishing the new mosque, as it had grave potential for causing public mischief
and unrest. A division bench of the Patna High Court discountenanced the
petitioners' claim to construct the new mosque and dismissed their petition as
ill advised.
Scope of PIL, public policy and abuse of process

The petitioner's locus standi and the maintainability of his PIL are necessary,
but not sufficient, conditions for adjudication. Even after the PIL is entertained,
its conduct and resolution must abide a certain discipline on the part of the
petitioner. A PIL cannot be used as an engine of oppression or an instrument of
intimidation, especially by protracting it through procedural devices. But the
judicial enunciation of the true legal position in this behalf by a division bench
of the Delhi High Court is fraught with misapprehension.
In Jaidev Singh v. Prasar Bhartif3 the petitioner, claiming to be a social
worker, filed a PIL under article 226 of the Constitution, alleging huge losses to
the public exchequer as a result of illegal acts of the respondents, viz. Prasar
Bharti, the Union Ministry of Information and Broadcasting and certain private
respondents. The petition was based on newspaper/news magazine reports but
was accompanied by verbatim copies of official file notings of the official
respondents. The matter related to a serial telecast on Doordarshan. There were
grave allegations against the then Minister of Information and Broadcasting , the
CEO of Prasar Bharti and a private limited company, in which the minister's
wife and son had shareholding interests, which was the producer and sponsor of
the serial. The petitioner sought a writ directing the CBI to register a FIR under
the Prevention of Corruption Act, 1988, and consequential reliefs. During the
course of hearing of the writ petition the petitioner filed certain interlocutory
applications for discovery and production of documents, and filed a further such
application even after the main petition was heard and judgment reserved. The
PIL was strenuously contested by the official respondents. In dismissing the
petition, the court held:84 "The present petition is in the nature of a public
interest petition. The duty of the Petitioner in such a case is to bring an aspect
of public importance to the notice of the court and thereafter it is the Court's
responsibility to enquire into the same. It is strictly not in the nature of adversarial
litigation. There is no doubt that the Petitioner can continue to be called upon
by the Court to assist in the matter in the question so that an issue of public
82 (2001) 2 BLJR 1052.

83 94 (2001) DLT731(DB).
84 Id. at 741, para-34.

interest is dealt with in an appropriate manner. This, in our view, is the scope
of a public interest petition. The court has to be cautious and careful that a
public interest petition should not be converted into a 'private interest petition'
or a 'publicity interest petition'.
In the above formulation the necessary implication is that once the court
takes cognizance of a PIL, thereafter it is essentially a matter between the court
and the respondents. If that be so, a PIL comes to stand on the same footing as
a contempt petition: Once the alleged contempt has been brought to the notice
of the court, the rest is a matter between the court and the contemnor. It is one
thing to say that a lis is not adversarial. It is quite another thing, to say that the
PIL petitioner ceases to have any say or any role to play and that the court on
its own would attend to the resolution of the controversy. Conceivably, the approach
adumbrated by the Delhi High Court could lead to a further merging or confusion
of its multifarious jurisdictions. The court's role as a sentinel on the qui vive could
well become identified with its role as parens patriae: the one relates to its
enforcement of fundamental rights and safeguard of the public interests, while the
other pertains to the court's traditional role as guardian of the interests and welfare
of those who cannot protect or fend for themselves. Jaidev's case is also an apt
illustration of how a good cause can be defeated by bad advocacy.
PIL petitioners who are actually fronts for private interests or vendetta come
in different guises but they all give PIL a bad name. Thus, in Harishchandra
Maheshwar Karandikar v. Shantaram Ghila Patil*5 the petitioner filed a purported
PIL to seek delicensing of a cinema theatre and to direct recovery of entertainment
tax dues from the first respondent licensee by seizing his moveable and
immoveable property. It transpired that the petitioner was the husband of the
landlady of the property on which the theatre premises were situated and that
there were various outstanding disputes and litigation between her and the theatre
licensee. A division bench of the Bombay High Court ruled: "This all makes it
clear that to settle private vengeance, the Petitioner has filed this petition under
the garb of public interest litigation and this very circumstances, is sufficient to
dismiss the petition". The court did so with costs.
Even if a PIL is not motivated by private interests or mala fides, where its
disposition involved policy decisions of the executive, the court would not sit in
judicial review. Thus in M. V.R. Sharma v. State ofA.P*6 the petitioner filed a PIL
in the A.P. High Court alleging that the municipal authorities had not prescribed
any norms for collection of parking fees for vehicles and yet sub-contracted such
collection to various persons who are collecting parking fees indiscriminately
and without any authority. While agreeing with the petitioner that the authorities
cannot allow collection of parking fees by the unauthorised persons, the court
held that "the classification of vehicles (different makes of cars) and of people
(women and physically challenged individuals) pertain to generation of revenue,
which was a matter of policy decision and not amenable to judicial review".
85 2001 (2) Bom CR I (DB).

86 (2001) AIHC 1801 (DB).

However, there is a saving grace. This is when the boot is on the other leg.
Where, in a PIL, officialdom tries to pull the wool over the court's eyes, say by
filing false affidavits and misleading the court, the court would enforce public
interest even through the contempt jurisdiction. In Rajeev Malhotra v. Union of
India*1 a PIL had been instituted by the petitioner from whom illegal gratification
was demanded by the municipal as well as police officials for allowing him to
raise certain construction on a plot purchased by him in a well known locality.
He declined to accede to them. When he sought to raise a boundary wall to
protect encroachment on his plot, the officials obstructed the same and made
demands once again. Eventually, on substantive sums paid by the petitioner as
bribes to the said officials, he was allowed to raise and complete construction
on his plot. Subsequently, however, the very same officials came and demolished
the standing structure. However, in the same locality, other similar constructions
had been made and these were left intact. The court called upon the official
respondents to justify their acts and omissions. Their affidavits in response
revealed that they had uttered falsehoods to the court and sought to mislead it.
The division bench of the Delhi High Court held the deponents of the affidavits
guilty of contempt of court and sentenced them to undergo simple imprisonment
for 30 days and to pay a fine of Rs. 25,000/- each.
Town and project planning

The lay-out of cities or the construction of irrigation or hydel projects, big
or small, have become sources of concern and hence of PIL in recent years. Here
too, there is use in some cases and abuse in others of PIL.
In Shri Krishan Singh v. Delhi Development Authorityf* two residents of a
village located in the heart of the city filed a PIL for mandamus to restrain the
town planning and municipal authorities from interfering with their rights and
those of the public at large to use a 45 ft. wide road between a commercial
complex and the village for proper access to the village. It transpired that the
area in question was a development area and that the development thereof had
taken place in accordance with a duly approved statutory development plan.
Accordingly, the Delhi High Court dismissed the petition as devoid of merit.
Sadanand S. Varde v. State of Maharashtra*9 is an illustration of a PIL
going off the rails. Certain tax payers and rate payers residing in the Bandra area
of Mumbai, who claimed to be deeply interested in environmental protection
and planned and orderly development of the city and who came from different
walks of life, filed a PIL invoking articles 14 and 48A of the Constitution. They
claimed that there was unconstitutional, illegal and unjustified depredation of
environmental resources in the peninsular piece of land involved. The state, the
municipal authorities, the concerned income tax authorities, and certain private
respondents, including a builder, a hotel company and a co-operative house
building society were arrayed as respondents. As various developments took
87 93 (2001) DLT 532 (DB).

88 90 (2001) DLT 353 (DB) (Dei).
89 2001(1) Bom CR 261 (DB).

place in the area, a chequered course of litigation ensued. The petitioners agitated
a number of environmental and development issues under various statutes and
statutory regulations. A division bench of the Bombay High Court painstakingly
dealt with each of them and rejected the petitioners' contentions. The Court
concluded that "what may have started as a bona fide Public Interest Litigation,
soon degenerated into a case of private witch hunting. ... The annoying persistence
with which the Petitioners have pursued this writ petition certainly gives credence
to the contention ... that this writ petition was intended only as a PIL meaning
'Persecution Interest Litigation'.. ..".9() Earlier, in the same vein the Court observed
that "the Petitioners have been unduly persistent to the point of being odious in
the pursuit of this case" and that PIL "even if pro bono publico initially, if it
persists beyond the limits of tolerance, loses its halo and becomes oppressive
and turns into Persecution Interest Litigation".91
In contrast to the situation in Shri Krishan Singh's case, Suman Sinha v.
State of Bihar,92 was a PIL by a public spirited resident of Patna for appropriate
directions to construct and complete a 40 ft. wide public road, which was part
of the master plan of the city, and to ensure proper utilisation of the lands on
which a former central jail existed. At the highest level, the executive had last
decided to construct a new jail on the lands in question, although the state
government had recently constructed a model jail on the outskirts of the city. A
division bench of the Patna High Court, for detailed reasons adduced by it based
on judicial notice of developmental facts in the city, disapproved of the mode
and manner in which the land was sought to be utilised as being whimsical and
arbitrary and as an unreasonable decision and fit to be overruled. The court,
therefore, directed the constitution of an expert committee to determine the
proper use of the lands in question.
Coming now to project planning, in Marathwada lanta Vikas Parishad v.
State of Maharashtra,93 the PIL challenged a major irrigation project undertaken
by the State of Maharashtra and the Vidharba Irrigation Development Corporation
on the upstream of the Purna river, mainly on the ground that it would adversely
affect the beneficiaries of the earlier Purna project. The state government had
approved the new project in 1989 and over Rs. 40 crores had already been spent
on the project when the PIL was filed in the year 1999. Although the petition
suffered from laches, a division bench of the Bombay High Court went into the
matter on merits since the project would affect a large number of persons.
Following the lead given by the Supreme Court in Narmada Bachao Andolan v.
UOI94 the high court held: "As pointed out by the Apex Court this Court's
jurisdiction to interfere with such project is very limited and we have not
been shown any violation of any law or statutory provision or mandatory
requirement which has not been complied with, we cannot sit in appeal and
90 Id. at 312, para 115.

91 Id. at 273 para-22.
92 2001 (3) BLJR 1738 (DB) (Pat).
93 2001 (4) Bom CR 126 (DB).
94 (2000) 7 SCALE 34.

judgment over the policy decision of the State...". Accordingly the court
dismissed the Petition.
The principle reflected in the above judicial approach to project planning
has been applied to grant of interim injunctions or status quo orders as well. In
Raunaq International Ltd. v. I.V.R. Construction Ltd.,95 which arose out of a writ
petition relating to a dispute purely between two tenderers, the Supreme Court
had held that when award of a contract by the state is challenged, the court must
be satisfied that there is some element of public interest involved in entertaining
a litigation. A mere difference in the prices offered by tenderers may or may not
be decisive in holding whether any public interest is involved in intervening in
such a commercial transaction. What is important is that by the court's
intervention, the proposed project might be considerably delayed leading to
escalating cost.
In Simanchal Padhy v. State of Orissa,96 the division bench of the Orissa
High Court invoked these considerations in two civil suits at the revisional stage
which were buttressed by two PIL writ petitions. The plaintiffs in the two suits
filed by them for perpetual injunction against the State of Orissa and its officials
to restrain them from executing any construction work of earth dams in respect
of certain tenders and from making any payment in respect thereof and for
evaluation afresh of all the bids submitted by him and others. The trial court
initially granted an ad-interim ex-parte status quo order in respect of the
construction work and, after notice, when the defendants appeared, made the
same absolute and directed the defendants not to take any action or proceed
relating to the construction in respect of concerned tender call notice. The appellate
court dismissed the state's appeal against the said orders of interim injunction.
The state then moved in revision before the Orissa High Court. At that juncture,
a practicing lawyer at Bhawanipatna (where the dams were to be constructed)
filed two writ petitions by way of PIL challenging the injunction granted by the
trial court. Since the impugned orders had been challenged by the state itself in
the revision petitions, the court did not pause to examine the maintainability or
otherwise of the said writ petitions. However, in the revision petitions the high
court noted that the estimated cost of the works was about Rs. 4,439 lakhs and
observed that considering the huge amount involved, the trial court and the
appellate court ought to have seen whether grant of injunction which had resulted
in stoppage of execution of the work was in public interest. Applying the classic
ingredients of prima facie case, balance of convenience and irreparable injury,
the division bench of the Orissa High Court pointed out that the courts below
seemed to be more concerned with the plaintiff's interest than that of the state
and had failed to gauge the consequences of the injunction order. The contractors
who had been awarded the works had gone ahead and executed a substantial part
of the work and had received huge amounts as part payment. The obvious
consequence of injunction was delayed execution of work which was not in
95 AIR 1999 SC 393.

96 91 (2001) CLT 584 (DB).

public interest. The cost of the works would escalate and the public would
have to bear the ultimate financial burden. Besides, the financial arrangements
made by the government would be jettisoned. In the circumstances the grant
of injunction was against public interest. For additional legal and procedural
reasons such as notices under Section 80 CPC and non joinder of necessary
parties, in allowing the revision petitions the high court dismissed the suits
themselves.
Life, law and legal services

The dignity of human beings is not merely corporeal and intrinsic. It must
also be sustained by life giving elements such as water, which Holmes J described
as being more than an amenity, a treasure. Corporeal dignity must be accorded
as much to those of tender age as to adults.
In Parents Forum for Meaningful Education v. UOI,91 the petitioner forum,
which was a registered society under the Societies Registration Act, 1860, and
its president filed a PIL writ petition challenging the vires of certain provisions
of the Delhi School Education Rules, 1973 and for banning of corporal punishment
to students in schools. They contended that infliction of corporal punishment
upon children is inhumane and ultra vires articles 14, 19, 21 and 39(e)and (f)
of the Constitution. The state, however, sought to justify the statutory provisions
as being intra vires the Constitution and meant to inculcate discipline in the
child and in his own interest. The division bench of the Delhi High Court
approached the rival positions in the light of the provisions of the Convention
on the Rights of Child adopted by the General Assembly of the United Nations
on 20.11.1989, articles 14, 21 and 39(f) and (g) of the Constitution and the
National Policy on Education. The court held that, in a nut shell, the thoughts
which pervade the various articles of the Convention are basically protection of
the child from all forms of physical or mental violence, injury, neglect,
exploitation, abuse, torture or any other form of cruel, inhuman or degrading
treatment or punishment and adoption of means for the welfare of the child in
every conceivable way and preservation of the dignity of the child. The
Government of India acceded to the Convention on 11.12.1992. The National
Policy on Education was modified in 1992 before acceding to the Convention,
and the National Policy is in tune with the Convention inasmuch as it is expressly
against the imposition of corporal punishment in the educational system. Citing
well known authorities of the Supreme Court on dignity as an inherent quality
of life under article 21 of the Constitution, the court pertinently observed: "All
these rights are available to the child and he cannot be deprived of the same just
because he is small. Being small does not make him a less human being than
a grown up ...It also appears to us that corporal punishment is not in keeping
with a child's dignity. Besides, it is cruel to subject the child to physical violence
in school in the name of discipline or education. Even animals are protected
against cruelty. Cruelty to animals is punishable under section 11 of the Prevention
97 89 (2001) DLT 705 (DB).

of Cruelty to Animals Act, I960".98 In the event, the Delhi High Court struck
down the impugned provisions of the 1973 rules as ultra vires articles 14 and
21 of the Constitution and directed the state "to ensure that children are not
subjected to corporal punishment in schools and they receive education in an
environment of freedom and dignity, free from fear".99
The child, as the poet said, is father of the man. Unlike the state, nature does
not discriminate between the two. It gives them equally of its bounty. Adversely,
an episode in human existence such as a natural calamity affects man and child
alike. An earthquake and its aftermath provide a classic example. "On the morning
of 26th January, 2001, an earthquake of a high magnitude, more than 7 on
Ritcher Scale, shook whole of Gujarat and more devastatingly of its entire Kutch
District, leaving thousands dead, injured, crippled, orphaned and homeless. The
Government was unprepared to meet such unforeseen natural calamity and still
finds it difficult through its inadequate machinery to carry out the stupendous
task of rescue, relief and rehabilitation of the quake victims". Thus, begins the
poignant judgment of a division bench of the Gujarat High Court in Bipin
Chandra J. Divan v. State of Gujarat.im The petitioners, five prominent citizens
representing people from different walks of life, (a retired chief justice of that
very high court, eminent lawyers, industrialists, artists, social activists), filed the
PIL seeking intervention of the court to ensure speedy and effective relief to the
quake victims. The main reliefs claimed were issuance of directions to government
to set up independent committees or commissions manned by experts in different
fields who might be found competent in quake relief management operations
and entrustment of relief materials and funds to them to ensure their proper
utilization for the victims and to avoid their diversion, misappropriation and
loss. Old habits die hard. Even to such a petition the central government and the
state government both raised preliminary objections questioning the jurisdiction
of the court to intervene in a matter seeking directions for effective steps for
disaster management. The court observed that the duties of the government or
the court on occurrence of a disaster or natural calamity of such magnitude are
not statutorily regulated and, in fact, there is total absence of legislation in this
field. Therefore, taking note of article 21 of the Constitution as construed in all
its expansiveness, the doctrine of parens patriae as applied by the Supreme
Court in the Bhopal Gas Leak Tragedy case, (Charanlal Sahu v. UOI,)101 and the
concept of innominate obligations and the principles of trusteeship as known to
jurisprudence, the division bench ruled that "all those donors and contributors
who have extended help in cash and kind to the victims have enforceable rights,
in a representative capacity to seek directions to the government to ensure that
the relief and rehabilitation material meant for quake victims reaches them in
time and hour of need. For the same purpose, they can claim a right to demand
account of receipt and expenditure of such relief and rehabilitation material in
98 Id. at 712-13, paras 14 to 16.

99 Id at 717, para 28.
100 2001 (42) Guj LR 1394 (DB).
101 AIR 1990 SC 1480.

cash and kind".102 Consequently, the division bench issued a detailed interim
order with specific directions for amelioration of the lot of the victims.
On a smaller scale, the Allahabad High Court came to be seized of another
ingredient so vital to life-water supply. In Mukesh Sharma v. Allahabad Nagar
Nigam103 a PIL was filed that the citizens of Rasulabad locality in Allahabad
were not being provided proper municipal water supply. The court suo motu
expanded the scope of the writ petition to the whole of the city and treated it as
one on behalf of the citizens of the whole of Allahabad. The court ruled: "Water
is essential for life and hence citizens are justified in demanding proper water
supply".
Like the dispensation of socio economic relief in calamitous situations, the
dispensation of criminal justice must also be informed by expedition and efficacy.
The pre-requisite, of course, is speedy and impartial investigation. Committee of
Protection of Democratic Rights v. State of West Bengal,l04 was a case where the
committee, a registered body under the Societies Registration Act, filed a PIL
for directions regarding independent investigation in a criminal case where 11
persons were killed by use of fire arms and explosives in a clash between
adherents of two political parties. The PIL made serious allegations against the
police that they were not prosecuting the investigation expeditiously causing
serious prejudice to the fairness of the investigation at the behest of the political
party in power. The court found that the investigation was proceeding in a
most tardy fashion and expressed strong reservation about the impartiality and
fairness in the investigation by the state police because of the political
implications. In the circumstances, the high court directed the CBI to take up
the investigation.
Violation of the rights under article 21 may continue into incarceration.
Such violation in its most permanent and irrevocable farm consists in custodial
death. The only relief available in such event is compensation for the constitutional
tort under article 21. Thus, in Chellammal v. State of Tamil Nadu]05 the parents
of a boy sought compensation for the death of their son in judicial custody. It
was found that while in such custody he had received injuries at the hands of
the state officials and had been hospitalized and then re-hospitalized and died on
the later occasion. In the absence of any explanation by respondent authorities
as to how those injuries were caused and as to the actual reasons for the prisoner's
death, the court was constrained to find prima facie negligence on the part of the
authorities. In the result, the court awarded a compensation of Rs.l lakh with
interest at 8 per cent per annum from the date on which the writ petition was
entertained till the date of realization.
Chandania v. State of U.P.106 was a more vicious case. The petitioner's
husband had gone to the police station to lodge a FIR against a co-villager in
102 (2001) 42 Guj LR 1394 at 1402.

103 2001 AIHC 461 (DB).
104 2001 Cri LJ 2307 (DB)(Cal).
105 (2001) Cri LJ 906 (Mad).
106 (2001) Cri LJ 2090 (DB) (All).

regard to some land dispute. Instead, he was beaten up by the station house
officer and head constable and had to be taken to hospital where he succumbed
to his injuries. The petitioner filed a writ petition for compensation. A division
bench of the Allahabad High Court held that the police officials had violated the
deceased husband's right to life and awarded a compensation of Rs. 1,50,000/- to
the petitioner. Even though not prayed for by the petitioner, the court, in the
interests of justice, commanded the state to arrest the concerned police officials
and to produce them before the Court concerned through the Director General
of Police.
This survey may rounded off with a somewhat curious irony. It would
appear that representing a party in court is to render legal services but simulating
such representation is not. In Lawrence Fernandes v. Karnataka State Legal
Services Authority,*01 the petitioner, who was a social worker, ex-mayor of the
Bangalore City Corporation and a tax payer, filed a PIL writ petition questioning
the competency of the state government in according sanction and release of
certain amounts from the budgetary allocation of the Karnataka State Legal
Services Authority to the students of the University College of Law and of the
National Law School University of India who had represented the country at an
internationally renowned International Law Moot Court Competition held in
Washington D.C. and Model U.N. Summit held in New York, U.S.A., in 1998.
The principal ground of attack was that the state government had no power or
authority to sanction or release the funds of the authority and that the action and
sanctioning of the funds is not for rendering "legal service" under the Karnataka
State Legal Service Authorities Act, 1996. The Act defined the expression as
follows: '"legal service' includes the rendering of any service in the conduct of
any case or other legal proceedings before any court or other authority or tribunal
and the giving of advice on any legal matter". The court held that the sanction
and release of the amounts for the said events could not be termed as falling
within the ambit of the definition. The court held that the government should
have sanctioned and released its own funds and not laid its hands on the budgetary
allocation of the authority for that purpose. Accordingly, the court allowed the
writ petition and directed the state government to reimburse the amount to the
Karnataka Legal Services Authority and left it open to the state government to
recover the amounts from the two law schools.
107 2001 (2) Kar LJ 324 (DB).


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21

PUBLIC INTEREST LITIGATION

THE JUDICIAL perambulations of the Supreme Court, at the instance of

Senior Advocate, Supreme Court of India, New Delhi.

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II SUPREME COURT AND PIL

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2 Id. at 559, para 29.

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Id. at 566 para 47.

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constitutional or legal limits on power or so abhorrent to reason" and to the

9 Fertilizer Corporation Kamgar Union (Regd.) v. UOI, (1981) 1 SCC 568.

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14 (1991) 3 SCC 91 at 104, para-22.

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20 (1997) 7 SCC 592.

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section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985

26 Id. at 395-D to 396-F.

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28 (1997) 90 Comp Cas 455 (Kant).

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Such an approach as adopted in BALCO leads to strangely anomalous

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on matters of policy in general and of economic policy in particular or next to

35a See infra note 39.

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43 Ibid, para 53.

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referred to certain directions issued by it to check rapid deterioration of air

52 M.C. Mehta v. UOI, (2001) 3 SCC 763.

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57 (2001) 7 SCC 740.

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Ill HIGH COURTS AND PIL

Locus standi and maintainability

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63 AIR 1993 SC 892.

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71 2001 (4) Kar LJ 493 (DB).

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78 AIR 1987 SC 294.

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Scope of PIL, public policy and abuse of process

82 (2001) 2 BLJR 1052.

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85 2001 (2) Bom CR I (DB).

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Town and project planning

87 93 (2001) DLT 532 (DB).

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90 Id. at 312, para 115.

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95 AIR 1999 SC 393.

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Life, law and legal services

97 89 (2001) DLT 705 (DB).

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98 Id. at 712-13, paras 14 to 16.

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102 (2001) 42 Guj LR 1394 at 1402.