The Future of Rights Based Litigation in India (Part II)

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THE FUTURE OF RIGHTS BASED LITIGATION IN INDIA (PART II)

                                                                                                                                   
Ragini Gupta, B. Sc. LL.B (Hons.),National Law University Jodhpur
Law Researcher to Justice Prathiba M. Singh, Delhi High Court

Editorial Note: In continuation of the previous blog post, the author explores some other aspects of the progress of rights based litigation in the Indian legal system.

 The earlier part is available here.
Strengthening ‘Judicial Legislation’
With the advent of judicial activism, we have seen writ courts in addition to being court of first instance, also play the role of administrator, as not they not only lay down declaratory reliefs, but extensively monitor the implementation of their orders as well. We also see it playing the role of legislator, in cases where there is a lacuna in legislation. The best example is Vishaka,[1] where the guidelines laid down were in fact the applicable ‘legislation’ on sexual harassment at the workplace, until the relevant Act on the subject finally came into force in 2013.[2] Another example is Prakash Singh v Union of India and Ors.,[3]where the Court laid down seven directives on police reforms. Considering that such guidelines laid down by courts act as substitutes for legislations for long periods of time, certain practices should be adopted by courts to strengthen this process. One such practice is consulting with the various stakeholders, including civil society organizations and representatives of the private sector, as well as governments in the course of the proceedings, as to their viewpoints. This could be done by constituting a court-appointed committee.

Another approach, that could be applied to those entities and persons that are directly involved could be the issue of a notice under Order I Rule 8 of the Code of Civil Procedure, 1908, treating the case as a representative action and asking the relevant parties to enter appearance. This was done in the Ganga Pollution case wherein the gist of the petition was published in the newspaper calling upon all the industrialists, municipal corporations and the town municipal councils having jurisdiction over the areas through which the river Ganga flows to appear before the Court and to show cause as to why directions should not be issued to them,[4]thus attempting to give representation to the various interests involved in the litigation. Should such processes be implemented in similar cases, it would also reduce discontent among the affected players, their concerns having been taken into consideration.It has been pointed out that in the Delhi vehicular pollution case, the court imposed an extremely high cost option without examining whether lower cost alternatives were available.[5]The process of consulting with stakeholders, and in the process, engaging with experts would also bring about a more evidence- based approach to the formulation of “lacuna filling” lawmaking by the courts, preventing less than ideal outcomes such as these.

Securing Rights Beyond the Writ Courts
Rights-based litigation in India is not restricted to the writ jurisdiction of courts alone. There are other routes for claims of this nature. For instance, for environment related claims specifically, the National Green Tribunal is increasingly being seen as an especially proactive forum where enforcement of citizens’ right to a clean environment is possible. Like the Supreme Court and High Courts, here too, the locus standi rule is relaxed. Section 14 of the National Green Tribunal Act, 2010 lays down the Tribunal’s jurisdiction over all civil cases where a “substantial question relating to the environment is involved.” The Tribunal has held that a person who is injured or aggrieved can bring an application before it even if the injury or grievance has not happened to the applicant personally.[6] Similarly, the Tribunal’s appellate jurisdiction with regard to appeals made from orders passed by various authorities created under environmental legislations, as per Section 16, can be invoked by “any person aggrieved.” This too, has been interpreted extremely widely to include “any person, individual or group of individuals’ as long their credentials have been verified and their motives are pure.[7]”

An ordinary civil suit, in certain cases, have much wider implications than the immediate case. This, of course depends in part on the initiative taken by the judge, as well as the parties. An example of such a case is the Delhi High Court’s decision in United India Insurance Company Ltd. v Jai Parkash Tayal[8].The Plaintiff took an insurance policy from the Defendant company. He was hospitalized for Hypertrophic Obstructive Cardiomyopathy and made a claim for a certain amount with the Defendant. This claim was rejected vide a letter in which the company stated that genetic diseases were not payable as per the policy. The Plaintiff issued a legal notice to the Defendant calling upon the Defendant to pay the sum in question. The argument of the Plaintiff was that the exclusion of genetic diseases was not a part of the initial policy he had availed of, but was added in a later policy document without specific notice to him. 

The trial court held in favour of the Plaintiff and the insurance company appealed. While it would have been possible for the High Court to restrict its adjudication to the interpretation of the contract, it went on to consider whether the exclusion in relation to genetic disorders was valid or not. The Court, relying on Article 14, and observing that the Right to Health was a fundamental right within the meaning of Article 21, held that the Constitution prohibited discrimination of any kind, which would include discrimination based on genetic heritage. It held that an insurance contract had to stand the test of reasonableness. It further observed that the exclusion of genetic disorders was not a mere contractual issue but extended to the “broader canvas” of the right to health and concluded that the exclusionary clause was invalid. While the Supreme Court has partially stayed the operation of the judgment,[9] it remains an important example, from which it may be seen that it is for courts, as well as the parties themselves to identify broader issues that may arise out of litigation in given cases. This is not to say that cases should be unnecessarily complicated. Nevertheless, it requires the initiative of courts and litigants to identify important questions of law in matters being argued. This applies to trial courts as well. Of course, in the case of the subordinate courts, in case the very vires of a legislation is challenged, this would necessitate stating the case for the opinion of the High Court in terms of Section 113 of the Code of Civil Procedure.

Conclusion
It is rights-based litigation has been a true celebration of democracy in the sense that it is one of the means through which citizens can hold the executive accountable for its actions and call to question arbitrariness and other violations of guaranteed rights. In certain cases, even those rights which may not be explicitly spelled out in the Constitution or the statute book are crystallized through the process of adjudication in such court proceedings, resultantly benefiting other people, even those who may not be parties to the litigation in question. There are few who would willingly go to court and subject themselves to legal proceedings.

Despite this, there are citizens who espouse the cause of others, and have precious little to gain in the process, and yet do so, so that those they are fighting for may be guaranteed their rights. Such a collectivist spirit deserves to be encouraged. Further, the effort on the part of the litigants and the judiciary would be worthwhile if the adjudication has the desired effect. It is keeping this in mind that the above suggestions have been outlined, such that the adjudicatory process continues to develop positively, serving as an example for democracies of the world.

[1]Vishaka & Ors. v State of Rajasthan (1997) 6 SCC 241
[2]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[3]Prakash Singh v Union of India and Others(2006) 8 SCC 1
[4]M.C. Mehta v. Union of India, AIR 1988 SC 1037
[5]Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 9(3) Journal of Environmental Law 293 (2007), at p. 308
[6]Sh. Sadi Ram and Ors. v Union of India and Ors., O.A. 492/2015 (Decided on 7th March, 2017)
[7]Vimal Bhai & Ors v. Ministry of Environment and Forests, Appeal No. 5 of 2011 (Decided on 14th December, 2011)
[8]United India Insurance Company Ltd. v Jai Parkash Tayal, RFA 610/2016 (Decided on 26th February, 2018)
[9]United India Insurance Company Ltd. v Jai Parkash Tayal, Supreme Court Order dated 27th August, 2018

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