CRITICAL ANALYSIS OF PUBLIC INTEREST LITIGATION ENTERTAINED BY MADURAI BENCH OF MADRAS HIGH COURT
- R. KARUNANIDHI
(Advocate, Madurai Bench of Madras High Court)
INTRODUCTION
My endeavor in this piece of writing is to analyses the verdicts rendered by the Madurai Bench of Madras High Court in Public Interest Litigations (PIL). The High Court Bench came as a shot in the arm for the litigants in southern districts who otherwise had to travel all the way to Chennai to file cases in the principal seat. I always remember the enormous efforts of advocates and other persons who fought for establishing the Bench at Madurai. Let me recollect the history of Public Interest Litigation (PIL) of this country. During the emergency state repression and governmental lawlessness was widespread in our country and the marginalized and disadvantaged groups continued to be exploited and denied basic human rights. The seed of the concept of PIL was initially sown in India by Justice Krishna Iyer in the year 1976. (Mumbai Kamagar Sabha-Vs- Abdul Thai (1976 (3) SCC 832). An unregistered association of workers was permitted to institute a writ petition under Article 32 of the Constitution for the redress of common grievances. (Akhil Bharatiya Soshit Karamchari Sangh (Railway Vs Union of India (1981 AIR 298). Justice V. R. Krishna Iyer and Justice P. N. Bhagwati were among the first judges to admit PILs in court and they opened the judicial door steps liberally to the poor people. Justice P. N. Bhagwati is considered to be designer of PIL in our judicial system. In December 1979, Kapila Hingorani had filed a petition regarding the inhuman condition of the 40,000 prisoners detained in the Bihar jail. As one of the first women lawyers to practice in the Supreme Court of India, Hingorani went on to bring about a revolution in the Indian legal system. She fought and won the first ever case that led to a unique jurisprudence that gave the poor and disadvantaged access to justice. We know it today as PIL. Though there is no provision for entertaining Public Interest Litigation in the Constitution, the Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing. (Husnara Khatoon Vs State of Bihar (AIR 1979 SC 1360).
Prior to 1980’s, only the aggrieved party could personally knock the doors of justice and seek remedy but the Locus Standi concept was removed by PIL. Now any person acting in bona-fide can file Viz., Individual, journalist, Social Action Group, NGOs. The concept of “Epistolary Jurisdiction” treating letter as a petition has been invoked by the Hon’ble Supreme Court. Justice P. N. Bhagwati defined the scope that where a person or class of persons to whom legal injury caused by reasons of violation of fundamental rights is unable to approach the court for remedy on account of poverty or disability or socially or economically disadvantaged position, any member of public acting bona-fide can move the court for ruling under Articles 32 and 226 of the Indian Constitution, so that the fundamental rights may become meaningful. (Bandhuva Mukti Morcha VS- Union of India (AIR 1984 SC 802 ). Further in yet another case Justice P.N. Bhagwati discussed about the basic approach and scope of PIL (i) There must be legal wrong caused, (ii) Arise from – violation of constitutional & legal right, (iii) Ground of poverty & Social economic disability, (iv) Any person seek judicial redress, (v) Can entertain letter, (vi) Court should enquire the bona-fide of the issue and the person who approach the court. (S.P. Gupta -Vs- Union of India (AIR 1982 SC 149).
Largely due to efforts of the Madurai Bench of Madras High Court, PIL has been effectively conceptualized and judicially and legally institutionalized. It has come to be recognized as an effective weapon in the armory of the law for securing implementation of the constitutional and legal rights of the under-privileged segments of the society and ensuring social and economic justice to them. The High Court Bench, since its inauguration on July 24, 2004, has perked up the legal process in the southern districts and has cultivated a large number of social activists, who vouch for the interest of the public through their public interest litigations. Public interest litigations in environmental violations such as axing of trees, illegal quarrying and encroachments are heard in large numbers. Everyday at least five percentage of PIL cases have been regularly occupied the case list of Madurai Bench.
DEALING TRIBAL PEOPLE’S RIGHTS
The Petitioner who is the President of Kodaikanal Ambedkhar Unorganised and Construction Workers Welfare Rights Sangam, Kumbarayur Unit has filed this Writ Petition seeking for Writ of Mandamus directing the Respondents to take immediate steps to rehabilitate the enlisted 40 Tribal families belonging to Paliyan Tribe with permanent shelters and other basic amenities like drinking water, electricity, health care and education facilities and further direction to the Respondents to rehabilitate the 40 families with alternative agricultural lands in accordance with Sec.3(1)(m) of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. After hearing the case, High Court Bench directed the Respondent to expedite the acquisition proceedings and on completion of acquisition proceedings to allot house sites to the applicants who have already made applications to the District Collector, Dindigul. (Rani -Vs- The State of Tamil Nadu CDJ 2010 MHC 6598).
RIGHT TO A DECENT BURIAL – DIRECTION ISSUED BY BENCH
Writ Petition is filed for issuance of direction to Government to take all necessary steps to enforce the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and the rules made hereunder without any delay to arrest the menace of untouchability being practised even by the public servants and further prayed to provide sufficient police protection to the scheduled caste people of Thirumalayanpatti Village during the cremation of dead bodies, in the "Cremation-cum-Graveyard". The Division Bench held even though about 60 years have elapsed after the passing of the Constitution, the practice of untouchability has not been completely abolished. The need of the hour is to educate the people so that the pernicious practice would be abolished sooner than later and all efforts should be made to eradicate any such forbidden practice wherever it raises its ugly head directly or even indirectly. Further High Court held that the officers should be more pro-active in preventing any forbidden practice of untouchability. It is no doubt that in a particular village or in a particular area there may be some apprehension of law and order situation. It is a matter for the public officials, including the Collector and Superintendent of Police to control the same. It will be the duty of all public officials concerned to ensure that no member of any particular community would be forced to go to a different place for the purpose of cremation of a dead body. Anything contrary, either directly or indirectly, would obviously be against the sentiments expressed in Article 17 of the Constitution. "in death at least all people are equal". The laudable object of the said poem should be brought to the notice of each and every individual and no efforts should be made to create any vivisection in the society. (P. Rathinam -Vs- State of Tamil Nadu, rep. by Secretary to Government (2009 (2) CTC 405).
RIGHT TO EQUALITY
The Madras high court Madurai bench allowed the Sivagangai Samasthana Devasthanam and the joint commissioner of Hindu religious and charitable endowments (HR&CE) department to conduct the Kandadevi temple festival in Sivaganga district. The festival shall be conducted with the participation of all the willing persons from all the four groups as well as from all communities without any discrimination. (Peri. Sornalingam Ambalam Vs The Commissioner, Hindu Religious and Charitable Endowments & Others 2014(5) CTC 113)
RIGHT TO HEALTH
A social activist prayed to direct the Government to provide MRI scan facilities to all district Government hospital in the state of Tamil Nadu on free of cost to the patients living below the poverty line throughout the State of Tamil Nadu. High Court Bench directed the state government to install Magnetic Resonance Imaging (MRI) scanners in government hospitals in all district headquarters in the state within a year. The same social activist has sought another direction to direct the Government to provide portable drinking water and hot water to the patients in all wards, direct the respondents to ensure the availability of the doctors for the patients for 24 hours by filling all existing vacancies, and to provide MRI scan facility, and other infrastructure to the Government Headquarters hospital, Ramanathapuram. The High Court allowed the writ petition and issued direction to the State Government. (C. Anantha Raj & Another Versus State of Tamil Nadu, Rep. by its Principal Secretary, Health and Family Welfare Department CDJ 2017 MHC 723).
COMPENSATION TO A FOREIGN CITIZEN FAMILY
The Petitioner, claiming to be a practising Advocate at the Madurai Bench of Madras High Court, has filed this Public Interest Litigation in respect of death of one Canicius Fernando, a Srilankan, who was shot dead in front of the Central Prison, Madurai, on 05.10.1997 at 3.15 P.M. In this Writ Petition, the Petitioner inter alia seeks direction to direct the 1st Respondent to pay compensation to the bereaved family of the said Canicius Fernando and other directions. Writ petition was allowed and a direction is issued to the respondents to pay a sum of Rs.9,07,000/- to the wife and children of the deceased Sri Lankan National Mr.Canicius Fernando, together with interest at 6% per annum from 24.6.2008 till the date of actual payment. The payment shall be made by the Government to the beneficiaries through the High Commission of India at Colombo, in the same manner in which ex-gratia was paid under G.O.Rt.No.223, Animal Husbandry, Dairying and Fisheries Department, dated 10.10.2007. In this case Bench held that second writ is maintainable in certain case and principles of resjudicate cannot be taken and further Court granted compensation with interest. (T.Sekaran Vs- State of Tamil Nadu (2010 WLR 851).
PRISONER’S RIGHTS
A writ petition was filed for appointment of trained and skilled Non-Official Members to Prisons as per Rule 338 of the Tamil Nadu Prison Rules, 1983 for visiting each of the Central Jails, the District Jails, and Sub Jails to address the grievance of prisoners and helping the prison administration in the development of correctional administration in the Prisons. Subsequent to the continuous directions the Government of Tamil Nadu passed G.O.M.S.No:613 dated 01.08.2017. The Bench specifically issued direction that the Home Secretary should have acted without expecting any direction from the Court in order to fulfill the statutory requirements.(People’s Watch –Vs- The Home Secretary (W.P. (MD)No. 2168 of 2016 dated 02.08.2017)
VICTIM COMPENSATION UNDER SECTION 357-A OF CrPC
A suo motu public interest litigation initiated by this Court based on the newspaper report relating to the fire at Sivakasi shop killing eight persons, who were working in the scan centre situated by the side of the cracker shop and one person died subsequently. Bench held that due to fire accident just in front of the shop and due to smoke engulfing the entire scan centre, those 9 persons have lost their lives. Therefore, the family members are entitled for compensation as of right under Section 357-A of the Code of Criminal Procedure. As per the scheme floated by the Government of Tamil Nadu under Section 357-A of the Code of Criminal Procedure, the family members of the deceased are entitled for Rs.3 lakhs as compensation each. In our considered view, there may not be any legal impediment for the Superintendent of Police to pay Rs.3 lakhs each to the family members of the victims from out of the said fund, as provided in Section 357-A of the Code of Criminal Procedure. Therefore, we are inclined to issue appropriate direction. But, this is only an interim compensation and it is not out of final adjudication regarding the entitlement of the family members of the deceased. The family members are always at liberty to make further claims for compensation, if they are advised to do so before the appropriate forum. (The Registrar (Judicial) Madurai Bench Of Madras High Court Madurai Versus The Principal Secretary to Government Home Department Secretariat Chennai & Others CDJ 2017 MHC 562)
RIGHT TO ENVIRONMENT
Writ Petitioners inter alia raised important questions of public interest as to whether sand quarrying had been done well beyond the stipulated permission granted affecting the normal course of river, supply of water for irrigation and for drinking purposes and what are the remedial measures to ensure the scientific sand quarrying. Commission was appointed consisting of (i) Mr.N.Seshasayee, Registrar (Judicial), Madurai Bench of Madras High Court; (ii) Dr.N.Chandrasekar, HOD, Center for Geo-Technology, Manonmaniam Sundaranar University and (ii) Prof.M.Arunachalam, HOD, Sri Paramakalyani Center for Environmental Sciences, Manonmaniam Sundaranar University to file its report on 06.10.2010. The Bench directed that there shall be no sand mining/quarrying for five years from today in the entire stretch of Tamiraparani river including the quarry sites at Thirumalaikolunthupuram, Tholappanpanai, Kilpidagai Appankovil, Mukkani and Mangalakurichi. The veteran CPI leader R.Nallakannu also filed writ petition along with the batch. (M.Periyasamy -Vs-The State of Tamil Nadu W.P.(MD)No.11182 of 2010 dated : 02/12/2010)
RIGHT OF FARMERS – RELEASE WATER FOR IRRIGATION
A writ petition was filed to save agriculture and praying to direct the respondents to release sufficient water from Periyar and Vaigai Dam forthwith to save the paddy crops standing in the lands situated in Madurai North Taluk and Melur Taluk, by considering the representation of the petitioner, dated 27.2.2013. After the elaborate discussion Writ petitions are allowed and a direction is issued to the Public Works Department to release water in Periyar Main Canal for irrigation from Vaigai Reservoir, in terms of letter dated 12.12.2013, forthwith. (S.MP. Amalan & Others Versus The State of Tamil Nadu, Rep. by its Secretary to the Government 2014 (3) LW 227)
RIGHT OF DISABLE PERSONS – DIRECTION FOR INFRASTRUCTURE
Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents to construct the ramp or lay the lift to the Madurai District Court complex for 1st and 2nd floors, within a time frame. Considering the statutory duties to be performed by the Government in providing lifts / ramps in the light of Section 46 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, The High Court Bench directed respondents to take steps immediately for providing ramp and lifts, for the first and second floors of District Court Complex, as expeditiously as possible. (R.Ramasamy vs The Registrar General CDJ 2015 MHC 5995 W.P.(MD)No.10224 of 2015).
PIL IS NOT FOR PERSONAL GAIN OR PRIVATE PROFIT OR OBLIQUE CONSIDERATION – BENCH IMPOSED COST
Public Interest Litigation, the Petitioner seeks a Writ of Mandamus forbearing the Respondents from removing the structure of the village Temple, namely Kaliamman and Bhagavathiamman Temple, and also from cutting the trees, aged more than 15 years, standing in the said temple, situated at Mullipadi Natham Survey No.573/1, Settiyapatti Hamlet of Mullipadi Village, Dindigul Taluk, Madurai District. In this case the Court found that Petitioner who filed this Public Interest Litigation has conveniently suppressed the factum of Peace Committee Meeting held on 18.06.2012 and the subsequent law and order problem that arose on 19.06.2012 and filed this Public Interest Litigation. The Madurai Bench quoting the verdict given in Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349) and imposed a cost of Rs.2500/- which shall be paid by the Petitioner by quoting the person acting bonafide and having sufficient interest in the proceeding of a public interest litigation would alone have a locus standi and could approach the Court to wipe out the tears of poor and needy suffering from violation of fundamental rights but, not a person for personal gain or private profit or for political motive or any oblique consideration. (R. Ayyappan –Vs- The District Collector, Dindigul District & Others CDJ 2012 MHC 3503). PIL experience also shows us that it is critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfill private interests, settle political scores or simply to gain easy publicity. Courts should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature.
SUO MOTU PUBLIC INTEREST LITIGATION
Regarding dumping of plastic waste in Vaigai river and burning of waste in Samayanallur village and also in Pandikovil area, based on the photo featured in English Daily “The Hindu” on 25.06.2012, the Madurai Bench has taken suo motu writ petition was taken up for directing the respondents to take effective emergent steps to remove the plastic waste that choked Vaigai river, to remove the trash overflows at the canal that connecting Melamadai and Sadasiva Nagar, to restrict and control the burning of garbage at Samayanallur and to restore the sanctity at Pandikovil which is spoiled by the devotees by leaving the place littered with waste. During the pendency of the writ petition Commissioner, Madurai Corporation and the District Collector, Madurai have been directed to ensure strict adherence to Municipal solid waste (Management and Handling) Rules, 2000 in the city of Madurai and all village Panchayats in Madurai District. Further the District Pollution Control Board is directed to monitor that the municipal solid waste are not dumped in water bodies and burnt on road sides. (The Registrar (Judicial), Madurai Bench of Madras High Court –Vs- The Secretary to Government, Environment & Forest Department ( CDJ 2012 MHC 4428).
DIRECTIONS FOR COMMUNAL HARMONY
A practicing advocate has filed the writ petition as a Public Interest Litigation praying to ensure the registration of the First Information Report on the basis of the representation dated 04.02.2014. The Petitioner claimed that he is a member of an informal team of advocates and social activists working for the promotion of rule of law, secularism, human rights and social justice. He submitted that the members of the said team were shocked and worried about the on-going fundamentalist inflammatory campaign launched by the sixth respondent namely, Mr.H.Raja, one of the leaders and Vice President of the State unit of the Bharathiya Janatha Party (BJP), a national party. He has taken an extreme level of hatred, false and malicious propaganda against E.V.R.Periyar, Muslims and Christians in his inflammatory public speech and the same has been uploaded in the 'you tube video' website for the public. During the hearing the Government Advocate produced a copy of the FIR registered by F3 Nungambakkam Police Station for the alleged inflammatory speech of the sixth respondent. In view of the above, the respondent herein is directed to consider the petitioner's representation dated 04.02.2014 and pass appropriate orders on merits and in accordance with law within a period of eight weeks. (Abdul Kabur -Vs- Union of India Represented by the Ministry of Home Affairs, New Delhi (CDJ 2015 MHC 1008).
CHANGE OF INVESTIGATION IN PUBLIC INTEREST LITIGATION
The Madras High Court Bench here on Friday directed the Central Bureau of Investigation to probe the police firing incident, which led to the death of six Dalits at Paramakudi of Ramanathapuram district, when a group went on a procession to pay homage to Dalit leader Immanuel Sekaran at his memorial. Bench held that a fair and unbiased investigation was very much essential in a sensitive case like the case on hand in respect of the tragic and terrific incident occurred on the fateful day. The orders were passed while disposing of a batch of public interest litigation petitions. The Advocate-General had questioned the maintainability of the PIL petitions as none of the petitioners were victims or relatives of victims. The Bench held that needless to state that the petitioners can very well raise their voice to protect the interest and the rights of the oppressed sections of the society as it is their fundamental right to fight for their cause. (Thol. Thiruma Valavan & Others -Vs- State of Tamilnadu Represented by its Secretary (2012 (1) CWC 651)
CONCLUSION :
i. Public Interest Litigation offers a steps to justice to disadvantaged sections of society, provides an avenue to enforce the fundamental rights of the general public, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable. Some of the landmark judgments include banning sand quarrying in Tamiraparani river, ordering the National Highway Authority to realign its layout in Kanyakumari to save an irrigation tank and ordering the State to conserve hillocks with historical significance like the Yanamalai hillock in Madurai. One of the notable judgements was against the felling of ‘karuvelam’ trees at Vaagaikulam tank near Alwarkurichi. Several species of birds continue to nest in the tank due to the landmark ruling of the bench. But most of the Public Interest Litigation cases have been closed after issuance of directions to the state authorities instead of continuous mandamus. It is highly required continuous mandamus to reach the meaningful justice.
ii. The 107-acre campus is one of the largest court campuses in the country. But One of the constant demands of the advocates to increase the strength of the judges in the court was not addressed completely till date. By increasing the number of judges alone, the backlog of pending cases will be reduced. We find that in present times large number of persons, men and women, are being subjected to exploitation, injustice and even in violence. In this situation, judges must have to play a much more proactive and positive role while discharging their judicial functions. They cannot shut themselves in their ivory towers by invoking the doctrine of judicial-restraint and shutting their eyes to the misery and suffering of the people to whom they have sworn to ensure basic human rights guaranteed by the Constitution and the various U.N. Human Rights instruments.
iii. The practice of appointing socio-legal commission was strongly insisted by the Hon’ble Supreme Court in the case of Dr.Upendra Baxi -Vs- State of Uttar Pradesh(1986 (4)SCC 106) and Nilabati Behera -Vs- State of Orissa (19993 (2) SCC 746). But the Madurai Bench has not implemented the same in all the cases Viz, death happened in jails and police custody. It is high time to appoint of socio-legal commission to assist the court as well as to render justice to the people.
iv. Public Interest Litigation is working as an important instrument of social change. It is working for the welfare of every section of society. It’s the only sword available in the present scenario to avail justice for the helpless. The innovation of this legitimate instrument proved beneficial for the developing country like India. Hence the Court may be revisited of payment of court fee in the Public Interest Litigation cases. The court fee should not be impediment for espousing a genuine cause to the Court.
v. Another major problem with the PIL is, the court often doing only symbolic justice. Two facets of this problem could be noted here. First, judiciary is often unable to ensure that its guidelines or directions in PIL cases are complied with, for instance, the judges directed the government of Tamil Nadu to first take up the construction of urinals in the girls and co-education schools in the next academic year; and to complete it in the boys in the subsequent year. Further specifically directed the government would complete the construction of nearly 20,000 urinals within this academic year. Nevertheless it seems that the judicial intervention in these cases have made little progress the implementation of order has to be monitored.
vi. Earlier in the ruling of D.K. Basu –Vs-- State Of West Bengal (1997(1) SCC 416), the Hon’ble Supreme Court in a PIL, pointed out that the obligation of the State in case of victim of crime needs to be compensated monetarily where the infringement of the fundamental right is established. Further in the same judgment issued guidelines to arrest of a person. After the Hon’ble Supreme Court’s directions only section 41, 41-A, 41-B were modified in amendment to Cr.P.C. (Criminal Procedure Code) in the year 2010 to minimize abuse of powers of arrest by police. Likewise the Victim Compensation scheme was came into force when the Section 357 (A) of Criminal Procedure Code was amended in the year 2009 due to the directions issued in D.K.Basu’ s case. One of the overarching aims of law and legal systems has been to achieve justice in the society and Public Interest Litigation (PIL) has proved to be a useful tool in achieving this objective. Therefore the High Court Madurai Bench must have such kind of the vision to protect the fundamental human rights of the people by way of invoking Public Interest Litigations.