The Future of Rights Based Litigation in India (Part I)
THE FUTURE OF
RIGHTS BASED LITIGATION IN INDIA (PART I)
Ragini Gupta, B.
Sc. LL.B (Hons.),National Law University Jodhpur
Law Researcher to
Justice Prathiba M. Singh, Delhi High Court
Editorial Note: In this blog, the
author comments on how litigating on rights has become a key identifying factor
in the Indian legal domain. The author has sought to outline how rights based
litigation has shaped out in India, with an aim to discuss the trends that are
emerging for the future.
Introduction: The Courts as the Guardians of Rights
Courts have been long viewed in
India as the ultimate protectors of the rights of people. They have been viewed
as enablers of social change amid perceived executive inefficiency and the guarantors
of people’s rights where majoritarian executives are seen to have failed. Whilethe
ruling government’s brute majority repeatedly prevented a Bill striking down a
provision denying members of the LGBT community their natural rights from even
being discussed[1], it was the Supreme Court that consigned
the said provision as it was then read to the rubbish heap of unconstitutional
law.[2] Where agents of the executive
armed with a draconian provision[3] of the Information Technology
Act, arrested people for criticizing politicians and posting cartoons on the
internet[4] it was the Court that came to
their rescue, first, by issuing interim measures prohibiting any arrest
pursuant to the Section in question unless approved by senior police officers,
and then invalidating it altogether.[5]
The Courts, in the exercise of
their powers have struck down some laws, read down others and given rise to
rights while interpreting existing law. It has framed guidelines where the legislature
has failed, directed executive action where there has been inertia and intervened
to declare unlawful regressive social customs. One of the key differences
between the ordinary proceedings and what have come to be known as ‘public
interest litigation’ is the relaxation of the locus standirule. The Supreme Court has rightly taken note of the
fact that there may be people who are “unable to approach the court on account
of poverty or disability or socially or economically disadvantaged position.[6]” Thus, the relaxation of locus standihas allowed others public
spirited persons to speak up for those who are unable to approach the court
themselves.
This essay shall discuss certain
approaches, both for litigants as well as the courts that are likely to aid the
positive development of rights-based litigation in India. Indeed, many of these
suggestions draw on instances from existing practice.
A ‘Collaborative Approach’ in Adjudication
The most common route through
which rights-based litigation takes place in India is by way of the invocation
of the writ jurisdiction of the Supreme Courts and the High Courts, under
Articles 32 and 226 of the Constitution respectively. These proceedings are
different from others, in various ways, as may be observed from an analysis of
case law. One difference would be the very nature of the proceedings themselves.
Court proceedings in India, follow the adversarial system, in which competing
versions are produced by either side to a judge who, must decide purely based
on the evidence on record. The role of the judge, in such proceedings has been
described as that of an umpire, who plays a passive role.[7] In contrast to an adversarial
proceeding, where each party will typically deny in near totality the
contentions made by the other, public interest litigation has been described as
a cooperative or collaborative effort on the part of the petitioner, the State
or public authority and the court to secure constitutional or legal rights.[8]
It would appear that such a
characterization of public interest litigation is an ideal sought to be adopted
in proceedings of this nature, though not always seen in practice. For example,
in Bandhua Mukti Morcha v Union of India[9]the Court observed that the
administration was reluctant to admit to the existence of bonded labour even
where it was prevalent.[10] It also noted with displeasure
that the Additional Solicitor General had sought to argue that the workmen, who
were being represented in the said case must first prove that they were
providing forced labour in consideration of an advance received by them.[11] Further, during the course of
arguments, the Court had suggested to the ASG that the State should accept
liability for freeing and rehabilitating even those workers who were not bonded
labourers in the strict sense of the term, but were forced to provide labour nevertheless,
however, despite this, the State was not ready to come forward with any
proposal in this behalf.[12] Such conduct on the part of the
Respondent-State can scarcely be described as cooperation. However, cooperation
between the petitioner and the State has been observed in various other cases.[13]
Courts should, therefore
encourage a more collaborative approach, as a general rule, in cases of this
nature. This is especially true where the petitioner, due to reasons of poverty
or illiteracy is not in a position to place the relevant evidence before the
court himself. The obvious difference would be that the State would be much
less likely to collaborate with a petitioner in those cases when the litigation
pertains to a failure or wrongdoing by the administration itself.In such a
case, the role of the court is especially important, so that a power imbalance
between the parties does not result in relevant facts and arguments not being
brought to the court’s notice. This necessitates a departure from ordinary adversarial
proceedings, in which evidence collection and presentation is traditionally
left to the parties Indeed, courts in some public interest litigation cases
have played a far more active role, with the appointment of Commissioners to
collect data. For instance, in the Bhagalpur Blinding Case[14], eye-specialists wereordered to
ascertain the nature and extent of harm. In Bandhua
Mukti Morcha[15],
a local
commissioner was appointed by the Court to inquire into the working conditions
of the labourers. Courts should readily follow such an approach when there is
any doubt as to the adequacy of the evidence on record. Petitioners and their
counsels too, should request the appointment of Commissioners when they are
unable to collect the relevant information themselves for genuine reasons.
From Orders to Impact: Ensuring Compliance
Rights based litigation is
intended to spur change in governmental institutions, law as well as society
itself and therefore it is necessary for courts, as well as the parties
themselves, to ensure that the litigation has its intended effect. For this
reason, it is necessary that courts do not stop at broad, declaratory remedies,
and devise means to ensure monitoring implementation of their orders. However,
after the verdict has been delivered and the matter disposed of, the court
becomes functus officioand no longer
has the jurisdiction to pass any orders. How, then do writ courts ensure that
the directions given by them are not on paper alone? One such method used by
courts has been the ‘continuing mandamus.’
In a ‘continuing mandamus’
instead of concluding the proceedings with its verdict, the court keeps the
litigation ongoing, giving orders from time to time and monitoring compliance
with court directives through regular hearings.[16] The Supreme Court used the term
‘continuing mandamus’ for the first time in Vineet
Narain v Union of India,[17]though continuous monitoring of
this kind had been done in certain earlier cases as well.[18]Typically in such cases, the
courts will order government officials to submit affidavits detailing progress
made in terms of the court’s directions and explaining any delays. In addition
to this, Commissioners are appointed to oversee implementation, inquire into
violations of orders and submit reports to the Court. An example of a case
where this has been done is PUCL v Union of India[19],
or the Right to
Food case. The writ petition was finally disposed of in 2017 as, according to
the Court, nothing remained in the case owing to the passage of the National
Food Security Act, 2013,[20] but not before extensive
monitoring and numerous interim orders.
Another means that should, and is
being used by parties to the litigation, as well as the Court on its own
initiative, are contempt proceedings. The Supreme Court[21], as well as the High Courts[22] have the power to punish for
contempt. Civil contempt is the non-compliance of court orders whereas criminal
contempt refers concerns the obstruction of administration of justice either by
criticizing the judges or the court process publicly, scandalizing the court in
any other manner or obstructing the administration of justice[23]. It is important to note that it
would be problematic to proceed with contempt proceedings when the order of
which contempt is being alleged is directed at the State as a whole, with no
officials or department being specifically identified.
Therefore, in litigations of this
nature, petitioners in their prayers should attempt to specify the exact action
sought, and from which functionaries of the government. Courts, too, should
pass detailed orders delineating responsibilities and fixing roles for the
various officials and authorities responsible. If this is done, those
responsible for non-compliance of court orders can be held accountable. It
does, however, bear mention here that there may be various reasons why the
State may be unable to implement an order. Non-compliance for bonafide reasons cannot be punishable.[24] Nevertheless, the invocation of
contempt proceedings may serve as a suitable deterrent against the willful
disobedience of court orders.
Read Part II here.
[1]In Parliament, Shashi Tharoor’s valiant fight to
change section 377, The Print (9th January, 2018) available athttps://theprint.in/politics/parliament-shashi-tharoor-valiant-fight-change-section-377/27435/
[2]Navtej Singh Johar v Union of India, Writ Petition (Criminal) No. 76/2016, Decided on 6th
September, 2018
[3]Section 66A, Information Technology Act, 2000
[4]13 infamous cases in which Section 66A was misused, India
Today (24th March, 2015) available
athttps://www.indiatoday.in/india/story/section-66a-cases-how-it-curbed-245739-2015-03-24
[6]
Id.
[7]
Government of India, Ministry of Home Affairs, Committee on Reform of Criminal
Justice System (2003), p. 24
[8] Peoples Union for Democratic Rights and Ors.
v Union of India and Ors, AIR 1982 SC
1473
[9]
(1984) 3 SCC 161
[10]
Id. at para 35
[11]
Id. at para 34
[12]
Id. at para 33
[13]E.g., Vishaka & Ors. v State of Rajasthan(1997) 6 SCC 241, where the
Court observed that the Solicitor General had rendered valuable assistance to
help the Court find a proper solution.
[14]Khatri v. State of Bihar, AIR 1981 SC
928.
[15]
Supra note 9
[16]Mihika Poddar & Bhavya
Nahar, ‘Continuing Mandamus,’ a Judicial Innovation to Bridge the
Right-Remedy Gap’10 NUJS Law Review (2017), p. 2.
[17]Vineet Narain v. Union of India, (1998)
1 SCC 226
[18]E.g.,
Hussainara Khatoonv State of BiharAIR 1979 SC 1360, Consumer Education and Research Center v
Union of India, (1995) 3 SCC 42
[19]
Writ Petition 196/2001
[20]
Order dated 10th February 2017 in W.P. 196/2001
[21]
Article 129, Constitution of India
[22]
Article 215, Constitution of India
[23]
Sections 2(b) and 2(c), The Contempt of Courts Act, 1971
[24]Indian Oil Corporation v. Sheo Shankar Mishra, (1995) 2 PLJR
875.
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