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The Public Interest Litigation Hoax in India: its Adverse Impact on the Poor and Working Class

by Shobha Aggarwal, 23 April 2015

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sacw.net - 23 April 2015

[(This is an abridged version of the original report

The Public Interest Litigation Hoax – Truth Before the Nation; A Citizen’s Report on how PIL fails to provide justice to those who need it most published in April, 2005.)]

Abstract - In Public Interest Litigation (PIL) cases hundreds of thousands of poor people in India have been adversely affected to the extent of losing their livelihood, homes and even Constitutional guaranties all in the name of ‘public interest’; even though PIL in India derives its legitimacy as an instrument to provide justice to the underprivileged and the downtrodden. Why have things come to such a pass? The most important reason appears to be that in PILs the principles of natural justice are not followed. For example in the case of Delhi industries the Supreme Court (SC) thought nothing of taking away the livelihood of around one million workers (and their families) without giving them a hearing and displacing them from Delhi where they were rooted for two generations. Where lower adjudicating authorities violate principles of natural justice the affected can appeal to higher judicial bodies. But if the highest court in the land violates principles of natural justice people have nowhere to turn to. This study critically examines the PIL judgements of the Supreme Court of India through the eighties and nineties in the light of principles of natural justice and how they adversely affect the poor.

1. Genesis of Public Interest Litigation

The phenomenon of judicial activism is sufficiently pervasive to be described as ‘the global expansion of judicial power.’ Judicial activism has acquired a sense of legitimacy all over the world. Many Non Governmental Organizations (NGOs) are trying to use law-related strategies to achieve social justice. And a perception is building that the courts will not fail in the task of enforcing democracy.

Few legal developments have excited such controversy in recent times as the growth of Public Interest Litigation (PIL) in India. In headline hogging judgements the Supreme Court of India has been seen to fill a vacuum left by an increasingly venal and insensitive executive and unresponsive legislature.

There is consensus among various legal scholars that the genesis of PIL in India lies not so much in an aware public articulating and asserting its rights, as in the Supreme Court’s attempt to redefine its role in a particularly traumatic phase in the Nation’s life. In the late seventies, the Supreme Court (SC) came in for severe condemnation for its pusillanimity during the period 1975-77 when Internal Emergency was clamped in India. It had failed in its duty to uphold the Constitution and stood by as a mute spectator to the massacre of individual liberty and the demise of the rule of law. Almost as an act of penitence, in the post-emergency period, the SC became active as never before to uphold fundamental rights of the people. It virtually extended an invitation to the under-privileged to approach the court in an attempt to regain its lost social legitimacy. In People’s Union for Democratic Rights v. Union of India case the judgement in 1982 stressed on how PIL in India was conceived by the SC:

...a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.

Though the nature of cases filed as PIL in India has changed, its definition remains the same. Even in 1999 the Court reiterated its earlier definition that:

...a public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interests. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights.

However, while earlier cases concentrated on providing justice to the disadvantaged, gradually other interests came to be addressed. As a consequence of several PIL judgements, the interests of the economically weaker class have therefore suffered, even though PIL in India derives its legitimacy as an instrument to provide justice to the underprivileged and the downtrodden.

The post-emergency judicial activism had generated a hope that the judiciary would intervene to protect the rights of the people. This hope and an increasing reliance by public-spirited individuals and groups upon PIL as a solution to all social evils, is open to question. In an era of globalisation, rights enjoyed by the workers, women, etc. are under threat. In this scenario the judiciary is expected to intervene and protect the rights of the people. On the contrary, the strange spectacle of the judiciary itself hacking away at the rights of the people is on view today.

There has been a trend in recent years to make the judgements compatible with the new economic order regardless of their effects on the underprivileged. Even a legal luminary, Upendra Baxi, has taken note of this disturbing trend:

Justices are, explicitly and implicitly, asked to make the Indian Constitution compatible with the sacred texts of globalisation. In the process a whole new order of juristic and judicial ingenuity is summoned...

Through PIL the judiciary has usurped the powers of the (corrupt and inefficient) executive over the last quarter century; more recently it has dared to transgress areas assigned to it by the Constitution and even ventured to take on the legislature as well. The judiciary got emboldened in its endeavour as the PIL experiment ensured it a measure of social legitimacy with little if any criticism of the outcome and follow-up of PIL directives and orders; as also how the law of natural justice was violated; how the due process was not followed; how notice was not served to those who were eventually to be affected by the outcome of these cases; how the judgements were null and void because the procedure adopted by the judges was unconstitutional; how there was a rush to judgement. The middle class activists and the socially motivated intellectuals as also the legal professionals not only maintained a deathly silence on these issues but actually sang songs in praise of PIL.

This study is directed towards examining how the apex court itself laid down certain principles and then proceeded to dishonour them without bothering to justify its actions. The study will primarily critically review SC judgements in PIL in the light of the principles of natural justice, to determine whether they violate these principles; secondly, whether the whole emphasis in PIL has shifted from providing judicial redress to the weaker and under-privileged sections of society to other concerns?

2. Is Supreme Court above the Principles of Natural Justice?

In PIL the SC did away with procedural aspects, meticulously followed in adversarial litigation. As far back as 1984, Pathak J. had the foresight to comment that procedural dilution could result in the abuse of the process of the Court. This chapter will go into the main principles of natural justice and their application in adversarial litigation.

Principles of natural justice are essentially meant to ensure a fair hearing. The concept encompasses two rules:

(i) nemo judex in re sua, i.e. the authority deciding the matter should be free from bias; and

(ii) audi alteram partem, i.e. a person affected by a decision has a right to be heard.

In fact the second rule is wide enough to encompass the first rule. The audi alteram partem rule ensures that no one be condemned unheard. It is the first principle of civil jurisprudence that persons against whom any action is sought to be taken, or whose right or interest is being affected, be given a reasonable opportunity to defend themselves. The sine qua non (an indispensable requisite) of fair hearing is that before adjudication starts, the authority concerned should give to the affected party a notice of the case so that the party may adequately defend itself.

For a notice to be valid and effective, it must be properly served on the concerned person. It must give sufficient time to enable the individual to prepare his or her case. In many cases courts have implied an obligation to give notice, even though the relevant Act or rules made no express provision for it. In President, Commonwealth Co-op. Society v. Jt. Registrar (Gen.) of Co-op Societies it was held that though the law did not expressly provide for a notice being given to a society, rules of natural justice required such a notice be given before an order for winding up was made. It held further that an order passed in contravention of principles of natural justice was void and the fact that the petitioner appealed against the order, in which appeal the order was confirmed, did not preclude the petitioner from urging that the original order was void.

In India, any curtailment of the principles of natural justice must be congruous with permissible restrictions on fundamental rights. H.M. Seervai says-

The rules of natural justice, that no man shall be a judge in his own cause and no man shall be condemned unheard, remain the same quite irrespective of statutory enactments which may recognize, abridge or abrogate those rules. If no question of fundamental rights arises, the statute and the rules governing the tribunal must be looked at, not to ascertain whether the rules of natural justice have been complied with, but to ascertain the extent to which they are recognized. Again, if fundamental rights are involved, the abrogation or abridgement of the principles of natural justice must stand the test of the permissible restrictions on fundamental rights.

Since PIL generally involves fundamental rights, waiver of rules of natural justice cannot be justified on any ground. Initially, even the SC applied the rules in the pavement dwellers case. The Court held that on the facts of the case, pavement dwellers, without any intention of violating the law, were driven by circumstances to make pavements their homes. Having established that the right to life includes the right to livelihood, the Court observed that after anxious consideration, it had come to the conclusion that Section 314 of the Bombay Municipal Corporation Act, 1888 for removal of encroachments on footpaths could not be regarded as unreasonable, unfair or unjust. It observed that the main attack was against the provisions of Section 314 of the Act which provided that the Commissioner may without notice, cause to be removed obstructions mentioned in that section. Chandrachud Chief Justice of India (CJI) said that the section conferred a discretionary power, which, like all power, must be exercised reasonably, and in conformity with the provisions of our Constitution. Section 314 must be read to mean that except in cases of urgency which brook no delay, in all other cases no departure from the audi alteram partem rule (“hear the other side”) must be adhered to.

The exceptions to the rule of natural justice can only be made in cases of dire emergency when life and limb are at risk, that is, in such cases where the delay, which the right of hearing may involve, would frustrate the object of the action. The principles of natural justice would not apply for e.g. if there is a wall or building in immediate danger of collapsing and there is no time in public interest to give notice.

In early years when PIL had started, the litigants usually represented the interest of one or the other vulnerable section. In such a case the Court may have felt no need to issue notices because their interest was already being represented. Even the rules of natural justice do not require that notice be given to those likely to benefit from the outcome. To take a fictitious case, if the SC decided that every tobacco user be given compensation by tobacco companies for the damage caused to their health, the tobacco user need not necessarily be given notice. But the tobacco companies must be given a chance to be heard as their financial interests are going to get adversely affected.

A. Post-decisional Hearing

As is self evident, a hearing that takes place before a decision is arrived at is known as a pre-decisional hearing; a hearing after a tentative decision is reached, is known as post-decisional.

The reasons why it is important to give pre-decisional hearing is explained by the SC in K.I. Shephard v. Union of India. In this case certain banks were amalgamated with nationalised banks. As a result of this, some employees of the banks were excluded and their services were not taken over by the transferee banks. This was done without giving the employees, whose services were terminated, an opportunity of being heard. The Court did not agree that a post-decisional hearing would be adequate in the situation. It observed:

They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and representation may not really yield any fruitful purpose.

This observation of the SC is based on sound reasoning, and experience has proved that post decisional representation have made no difference even to patently absurd judgements delivered. The settlement in the Bhopal Gas Disaster case is a classic example of this.

In December 1984, a chemical holding tank at a pesticide plant in Bhopal owned by Union Carbide India Ltd., a subsidiary of Union Carbide Corporation, leaked MIC and other lethal gases, resulting in the worst industrial disaster of the world. On March 29, 1985, the Government of India became the sole representative of the gas victims by virtue of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, passed by the Parliament. On December 17, 1987 the District Court of Bhopal ordered Carbide to pay an interim compensation of Rs. 350 crores in a suit filed by the Government of India. On Union Carbide’s appeal, the High Court of Madhya Pradesh modified the order and reduced the interim compensation amount to Rs. 250 crores. Both, the Government of India and Carbide, appealed to the SC against the order of the High Court. Instead of deciding the question of interim compensation, there was a SC assisted settlement of the main suit itself.

After withdrawing to itself the original suits pending in the Bhopal Court and disposing them off without adjudicating the issue in question, the SC by its order dated 14/15 February, 1989 directed that there be an overall settlement of claims in the suit for $470 million and termination of all civil and criminal proceedings. No notices were given to any victims or their organisations at the time.

The settlement evoked widespread protests from the victims and other organisations from all over the country and even abroad. As a result a number of review and writ petitions were filed before the Supreme Court. The settlement amount remained unchanged. Even though criminal proceedings were reinitiated, the Supreme Court in 1997, reduced the criminal liability of the Union Carbide from culpable homicide not amounting to murder, to rash and negligent act, thus whittling down the disaster which killed more than ten thousand people and permanently disabled lakhs of people, to a motor accident, the maximum punishment for which is two years, if the crime is proved.

Had the SC followed its own reasoning in the Shephard case that pre decisional hearing is necessary because in a post decisional hearing there is a tendency to uphold the decision already taken, the entire litigation could have taken a different direction. Had the Court heard the victims’ organisations before it thought of a settlement, the nature and outcome of the case could well have been very different. In this case eventually, following post decisional hearings, the Court, as predicted by itself, upheld the decision made earlier.

B. Possible Reasons for Overlooking the Rules of Natural Justice

There can only be two reasons for overlooking the rules of natural justice in PIL. The first is bias that is barred by the first rule of natural justice. The maxim nemo judex in re sua literally means that a man should not be a judge in his own case. It has also come to mean that a judge must be impartial, in other words the judge should not have any preconceived notions. In most cases the first rule is the reason why the second rule audi alteram partem is violated. It is the pre existing bias in the minds of the judges that prompts them to ignore the second rule of natural justice.

Another reason could be that of practical considerations: Judges might feel that there is no answer to the charge made. Only a biased judge can presume before hearing the other party that there is no answer to the charge. According to Paul Jackson:

...of all the grounds for excluding the rules of natural justice none is more vague than that of practical consideration.

...There are at least three justifications for requiring a hearing even where there appears to be no answer to a charge. First, experience shows that unanswerable charges, may, if the opportunity be given, be answered; inexplicable conduct be explained. Secondly, the party condemned unheard will feel a sense of injustice. Thirdly, suspicion is inevitable that a body, which refuses a hearing before acting does so because of the lack of evidence not because of its strength.

Even the SC recognized the necessity of the right to be heard, while adjudicating in the pavement dwellers case, wherein it observed:

The proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to well-recognised understanding of the real import of the rule of hearing. This proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other...The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons.

C. Void or Voidable

The question therefore arises - when an authority required to observe natural justice, in making an order, fails to do so, should the order made by it be regarded as void or voidable? Generally speaking, a voidable order means that the order was legally valid at its inception, and remains valid until set aside or quashed by the courts, i.e., it has legal effect up to the time it is quashed. A void order is no order at all from its inception; it is a nullity and is void ab initio.

In Ridge v. Baldwin, while referring to the argument that the decision of the watch committee to dismiss a Chief Constable without observing natural justice was voidable and not void, Lord Reid observed:

Time and again in the cases I have cited it has been stated that a declaration given without regard to the principles of natural justice is void...I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.

The above judgement has been quoted with approval in many judgements of the Supreme Court of India. In most cases of adversarial litigation the SC has set aside those judgements of lower courts that violated rules of natural justice. There is no reason why the rules of procedure, indispensable in providing justice in adversarial litigation should not be followed in writ petitions, even if that writ petition be in public interest.

The two major reasons for the higher judiciary not following rules of natural justice in public interest litigation are: 1. That a writ petition is filed against the State and there is no need to give notices to other groups of people whose interests may be affected by the order. 2. Bias- the presumption that the affected will not have anything to contribute.

To illustrate the bias of the Court a few instances are given here: In World Saviors v. Union of India & Others the SC directed 26 industries to close down. No directions were given for payment of compensation to workers. In Hariram Patidar v. M.P. Pollution Control Board & Others, M/s. Staller Drugs Ltd. Doshigaon, Ratlam was ordered to be closed down until valid consent from the Madhya Pradesh Pollution Control Board was obtained. In D.P. Bhattacharya & Others v. West Bengal Pollution Control Board on the basis of the report of the National Environment Engineering Research Institute, the SC directed closure and relocation of five hazardous industries from a residential area in Calcutta. In Tarala V. Patel & Others v. Union Territory of Pondicherry, the Pondicherry Distillery was ordered to be relocated and not to operate at the present site beyond April 30, 1997 irrespective of whether the new Distillery had started functioning or not.

In all the above cases, though workers were adversely affected by the judgement (they were about to lose their livelihood), they were neither given any notice nor heard during the proceedings. The judgements also do not safeguard workers’ interest. The factory owners were, however, given notice in every case and heard throughout the proceedings.

The SC, it appears, took care to give notices to people who could bring and defend a charge of violation of audi alteram partem. The bias of the Court prevailed against the workers who would have been hard pressed in exercising this right.

In fact, the range of natural justice is so far reaching that it necessitates providing an opportunity to all categories of people, even those who have no direct legal standing, but whose interests are likely to be affected. It is imperative that all such people be given a chance to speak for themselves.

D. Is Supreme Court above the Principles of Natural Justice?

Rules of natural justice should normally apply in every case irrespective of the outcome of the case, especially in cases of violation of fundamental rights. According to Seervai, “...it would be surprising if a requirement of natural justice was not binding on courts stricto sensu but was nevertheless binding on other adjudicating authorities.”

In cases where principles of natural justice are violated by lower adjudicating authorities the affected have the recourse of appealing to higher judicial bodies. But if the highest court in the land violates principles of natural justice people have nowhere to turn to. The only way out for them is to either disregard the verdict or in cases affecting larger interests, to supersede it by an Act of Parliament. Either option erodes the credibility and the legitimacy of the Supreme Judiciary.

3. Public Interest Litigation - in whose Interest?

The Indian experience illustrates that in examining the instrument of PIL that has been created by an elite judiciary in order to assist sub-ordinated groups in society, it is crucial to look at which groups actually initiate, which negotiate and which eventually benefit.

PIL in the SC is filed under Article 32 of the Constitution that empowers citizens to approach it directly for the enforcement of fundamental rights. The traditional rule of locus standi only allowed the aggrieved party to approach the Court. Exception was made only in cases of habeas corpus where the affected person may not be in a position to come to court and any relation could petition on his or her behalf.

In 1979 an advocate filed a habeas corpus petition under Article 32 of the Constitution on the basis of news reports in the daily news paper, The Indian Express describing how some under-trial prisoners had already been imprisoned for longer than the maximum sentence that could be imposed upon conviction. This in a way can be called the first PIL. In this case the SC held that:

...right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person...

Following this, the SC laid down the law on locus standi in the Judges case in which the Court permitted practicing lawyers to maintain petition against a circular of the Union Law Minister, alleging danger to the independence of the judiciary. Expounding the rule, Bhagwati, J. stated:

Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra, or Harijan workers engaged in road construction in Ajmer district, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public-spirited individual espousing their cause and seeking relief for them. The Supreme Court will readily respond even to a letter addressed by such individual acting pro bono publico.  

This landmark judgement threw open the doors of the SC to the suffering majority. In the period 1981-85 the SC really became the Court of first resort for the poor. It also marked a turning point in peoples’ campaigns and movements as they gradually moved from the streets into the courtroom in search of justice. Some judgements during this period vindicated the rights of the underprivileged. This was made possible by liberalizing the rule of locus standi, and the Court also began to entertain letters alleging violations of fundamental rights as writ petitions. This widening of locus standi in writ petitions under Article 32 led to many representative cases being filed in the SC on behalf of the under-privileged and marginalised sections of society by concerned citizens.

The cases were also dealt with differently than in regular litigation. Traditionally parties engaged in litigation are always adversaries. In PIL too, the State took on the role of the adversary, insisting on strict proof of violations alleged. To deal with this problem in a writ petition filed in 1982 on the issue of Bonded Labour, Bhagwati J. observed:

We have on more occasions than one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our constitution.

The Court also adopted other strategies like setting up socio-legal commissions of inquiry and taking the help of district and High Court judges to monitor implementation of its directions. These innovations helped transform the very nature of litigation and redefined the relationship between parties to a case, including that between the State and the litigants against it. The transition from adversarial proceedings to the pro-active participation of judiciary and government was slow but it did take place.

With this perceptible change in the role of the SC many concerns were brought before it. To mention a few: a petition filed by two professors from Delhi University on the inhuman conditions in Agra Protective Home for women in respect of the right to human dignity of those living in a government protective home; a petition was filed on behalf of 17 undertrial prisoners who were blinded by the police while in custody [Bhagalpur blindings case]. In the same vein the Court held that Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964, is violative of Article 23 (forced labour) of the Constitution, because it excludes the applicability of the Minimum Wages Act, 1948, to the workmen employed in famine relief works. The Court directed the government to enforce labour laws in PUDR v. Union of India (construction workers of Asiad); and in Salal Hydro-Project v. State of Jammu and Kashmir.

In most of these cases, the SC reaffirmed its earlier stance on what is PIL and gave judgements in favour of the oppressed, though it was not necessarily creating new rights. For instance under the statutory law the workers are anyway entitled to minimum wages. The Minimum Wages Act, 1948 empowers the government to fix a minimum rate of wages and also provides for the prosecution of defaulting employers. The Bonded Labour System (Abolition) Act, 1976 abolished this abhorrent practice. What the SC did was to facilitate access to justice by doing away with the strict norms of procedure. Otherwise for an individual worker or a bonded labourer to approach the SC on his or her own would have been a formidable task.

Once the SC freed itself from the concept of Anglo-Saxon jurisprudence which require every legal proceeding to observe well settled rules of procedure it was natural for other interests to approach the Court. Since then, the PIL has gone much beyond the restricted role of seeking relief for the weaker sections. The judgements in the nineties reflect the widening range of issues the SC has had to address. Apart from the continuing flow of cases regarding civil liberties (prisoners rights, police atrocities etc.), cases against political corruption and degradation of environment have occupied the center stage during the decade of nineties. Among these, several cases filed by M.C. Mehta for protection of environment attracted a good deal of media attention. In a series of judgements in cases filed by him, the SC gave directions for the protection of the Taj Mahal; controlling vehicular pollution in Delhi; elimination of child labour in hazardous industries.

Other environmental groups and individuals have also sought the SC’s intervention. Almitra H. Patel sought directions on solid waste management; S.Jagannath sought directions to protect ecologically fragile coastal areas; Vellore Citizens Welfare Forum appealed for an end to pollution by tanneries. In a case with the widest possible sweep the World Wide Fund for Nature (India) went to the SC for implementation of the Wild Life Protection Act and settlement of the rights of local communities in Protected Areas.

 The nineties also witnessed the emergence of what can be termed political cases with citizens taking to task various government agencies and politicians through the instrument of the Court. Vineet Narain managed to get orders directing the CBI to conduct fair and proper investigations into alleged acts of corruption and breach of Foreign Exchange Regulations Act [Hawala Case]. Similarly, Common Cause challenged the allotment of petrol pumps by the Union petroleum minister to his favourites. The Court also took up a case on the nexus between criminals and politicians in Dinesh Trivedi, MP and others v. Union Of India (Vohra Committee report).

Citizens moved the SC agitating for consumer rights. Common Cause asked for setting up of consumer state commissions and district forums; Jagriti Upbhogta Kalyan Parishad petitioned against non-supply of LPG products. In Pt.Parmanand Katara v.Union of India, government hospitals were directed to provide timely emergency medical treatment to persons in need.

Some cases led to the SC giving detailed directions in the absence of suitable legislation. In Laxmi Kant Pandey v. Union of India the SC gave guidelines on adoption of children by foreigners; and in Vishaka v. State of Rajasthan it laid down the guidelines for the law on sexual harassment at the work place.

There were also frivolous petitions filed as PIL but not entertained. A petition to include the Rajasthani language in the eighth schedule of the Constitution; a case against beauty pageants; a petition to mandate the government to enforce policy of total prohibition; were dismissed. The court also refused to hear private petition masquerading as PIL like Raunaq International Ltd. v. IVR Construction Ltd.

Other cases related to developmental projects like the Narmada Valley Project, Enron and Cogentrix power projects were also filed. The SC refused to intervene in such cases on the ground that:

It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of the living of the people on the one hand and the necessity for the preservation of social and ecological balances, avoidance of deforestation and maintenance of the purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Court’s role is restricted to examine whether the government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision.

4. Life Without Livelihood

Right to life is the most significant of fundamental rights as all rights flow from it. The SC in its judgements in various PILs expanded the definition of right to life to include right to livelihood, right to health and right to clean environment. However, when these rights were pitted against each other, the SC made no efforts to balance them. This has resulted in several ambiguities and contradictions.

The broadening of the definition of the right to life began in the eighties with the verdict in the case that has come to be known as the pavement dwellers’ case and was filed by Olga Tellis.

In Olga Tellis v. Bombay Municipal Corporation the SC held that right to life includes right to livelihood. This case challenged the forceful eviction of pavement dwellers by municipal authorities. The question raised for the Court’s consideration was whether certain sections of the law [Sections 312(1), 313(1), and 314, of the Bombay Municipal Corporation Act, 1888] entitled “Regulation of Streets” violated the right to life guaranteed by Article 21 of the Constitution. Having referred to the circumstances under which people in Bombay become pavement dwellers or had to dwell in slums or bustees, Chandrachud CJI observed that the easiest way to deprive people of their lives is to deprive them of their livelihood. The SC felt justified in assuming that on the facts of the case, slum dwellers and pavement dwellers, could not be removed without loss of their livelihood.

This does not mean that the unemployed can go to court demanding enforcement of their right to livelihood. According to Seervai:

...when the Court held that “life” included “livelihood”, all that it meant was that although the Court could not compel the State by affirmative action to provide livelihood to people, the Court could intervene in a proper case to prevent the State from action which would result in people being deprived of their livelihood.

In the above case a five judge constitution bench of the SC held that:

The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life.

... But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Article 21, such deprivation has to be according to procedure established by law.

In this case then the SC went on to examine whether or not the procedure established by law was followed. It held that the procedure had not been followed, as the petitioners had not been given notice. But since they had got ample notice during the proceedings in the Court it was not necessary to serve a notice afresh. However, temporary relief during the period of monsoon was provided.

This right to livelihood came in direct conflict with the right to clean environment that was held as implicit in the right to life in Rural Litigation Entitlement Kendra v. State of Uttar Pradesh. This judgement is important for two other reasons. This was the first case related to environment and ecology, and it was the first case in which an economic activity was stopped on the order of the SC in a PIL. It also set the precedent of giving priority to environment over livelihood, though even in this respect the Court made a more serious effort to protect the livelihood of mine owners and chose to ignore the claims of workers. This petition, filed in 1983, challenged limestone quarrying in Dehradoon. By an order passed on March 12, 1985, the SC ordered that the entire mining activity in the Doon valley should come to halt. The workers petition against premature termination of services was de-linked from the main petition as the SC felt that it had nothing to do with the issue. The Court observed that while it is true that the lessees of limestone quarries which had been directed to be closed down would be thrown out of business yet it is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance. To mitigate hardship of those thrown out of business they should be given priority in granting leases elsewhere; and secondly, workers displaced by this order should be provided employment in afforestation and soil conservation programme to be taken up in the area.

These directions concerning workers were not enforceable and they were provided no compensation. The mine owners had a better deal. When nothing was done to rehabilitate them, they approached the Court again. An inter-state committee was set up by the SC on August 30, 1988 to oversee the rehabilitation of displaced mine owners in Uttar Pradesh and other states. The kind of concern that was expressed for the mine owners was missing in the case of the workers.

The judgement in Pavement Dwellers’ case, upholding right to livelihood as an integral part of right to life was not followed in this case despite the fact that the earlier judgement had been delivered by a Constitution Bench, which is binding on other judges of the SC.

Similar conflicts between right to livelihood and right to clean environment have continued to arise in several cases. Instead of resolving the conflict and balancing the rights, in the Ganga Pollution case the justification given by the SC to order closure of tanneries was: ‘We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.’

This rationale of the SC is incredible. Life, health and ecology are no doubt, extremely important, but it is difficult to imagine these concerns taking precedence over life itself. And is it possible for a person to think of environmental pollution on an empty stomach? Instead of reconciling competing interests, the Court has chalked out a hierarchy of priorities that is disputable. Such arbitrariness has now come to characterise most judgements in cases related to environmental pollution, and workers’ rights are generally relegated to the backseat.

5. Condemned Without a Hearing

In recent years, the issue of environment protection from industrial pollution has become the theme song of many PILs. In the case of industries in Delhi, the SC has ordered 168 polluting industries to close down and relocate. This SC judgement was passed on a petition filed by M.C. Mehta to implement the Delhi Master Plan. The judgement was delivered without giving workers a proper opportunity for being heard.

Although the SC issued a detailed order on compensation payable to workers, it ignored ground realities in the labour market that made a mockery of the judgement on this score. The case is highly complex and is still going on. To recount a few pertinent facts: The first Master Plan (MP) for Delhi was formulated in 1962 when the city had about 20,000 industries. Even after the MP came into effect these industries not only continued to function where they were, new ones were allowed to spring up. The MP now in force, notified on August 1,1990, is the Master Plan for Delhi-Perspective 2001 (MPD 2001). It declares that industries will be confined to areas or zones demarcated specifically for them. Industries in zones not conforming to land use rules under the Master Plan were to be shifted within the National Capital Territory in conforming zones. Apart from declaring that no new heavy and large industrial units would be allowed to come up in Delhi, the MPD 2001 outlawed existing hazardous industries. The relevant portion of the Master Plan for Delhi-perspective 2001, as quoted in the judgement says:

a) The hazardous and noxious industrial units are not permitted in Delhi.

b) The existing industrial units of this type shall be shifted on priority within a

   maximum time period of three years....”

Till the case came up in the SC, the Delhi administration had not prepared a list of hazardous industries and the industries themselves had not prepared any projects for relocation as required by the MPD 2001. Given the haphazard growth of industries even the total number of industrial units and that of workers employed in them are hard to come by. The Development Commissioner-cum-Secretary (Environment), Government of India, informed the Court on August 23, 1995 that there were an estimated 93,000 industries in Delhi a majority of whom were in non-conforming use zones. A report prepared by Delhi Janwadi Adhikar Manch quoting the MPD 2001 estimation states that in 1995 there were 1,01,000 industrial units employing 9,09,000 people. According to the information available with the Environment Division of Federation of Indian Chambers of Commerce and Industry (FICCI), by 1999 a total of 1,20,000 units were operating in zones not conforming to the Master Plan.

Under orders from the SC the Central Pollution Control Board (CPCB) launched an exercise to identify industries that could be grouped in the ‘H’ category of the MPD 2001. Eventually on July 8, 1996, the final picture that emerged in the SC was that 104 units identified by the CPCB, 59 identified by the Delhi Pollution Control Committee (DPCC) and another five operating in non-conforming areas, were found to be in the ‘H(a)’ category. On July 8, 1996 the Court ordered that the 168 industries grouped in the ‘H(a)’category:

... cannot be permitted to operate and function in Delhi. These industries may relocate/shift themselves to any other industrial estate in the NCR. We direct that the 168 industries listed above shall stop functioning and operating in the city of Delhi with effect from 30-11-1996.

In the same order several directions were issued including one to the four states (Uttar Pradesh, Haryana, Rajasthan and Delhi) to ‘set up a single window facility’ to act as a nodal agency to sort out all the problems of industries, so as to facilitate shifting of industries.

Contrast this with the orders on workers. The SC quoted with approval the note on relocation of hazardous industries prepared by the Member-Secretary of the National Capital Region (NCR) Planning Board that says: ‘Since the NCR Towns are within the commuting range of Delhi and each other, the labour can either shift to the new sites or at least can keep commuting till they finally shift to the new place.’ The Court then gave a detailed order on the workers of industries to be shifted outside Delhi.

In the same order the SC included directions on payment to workers who were in imminent danger of losing their jobs upon closure or in the event of relocation of these units. The July 8, 1996 order states:

(c) All those workmen who agree to shift with the industry shall be given one year’s wages as “shifting bonus” to help them settle at the new location;

(d) The workmen employed in the industries which fail to relocate and the workmen who are not willing to shift along with the relocated industries, shall be deemed to have been retrenched with effect from 30-11-1996, provided they have been in continuous service (as defined in section 25B of the Industrial Disputes Act, 1947) for not less than one year in the industries concerned before the said date. They shall be paid compensation in terms of Section 25-F(b) of the Industrial Disputes Act, 1947. These workmen shall also be paid, in addition, one year’s wages as additional compensation;

(e) The “shifting bonus” and the compensation payable to the workmen in terms of this judgement shall be paid by the management before 31-12-1996.

In a later order passed on December 4, 1996, the SC raised the compensation to six years wages for regular workers by those industries that chose to just close down and not relocate. The workmen of industries who refused to shift along with the relocating industries were however entitled to only one year’s wages as additional compensation as originally directed. In the case of industries that were closing down the SC permitted the managements to pay the compensation in installments but laid down that the total amount must be paid before April 30, 1997.

The SC order was made only in favour of permanent workers, which category anyway excludes over three-fourths of the workforce. No mechanism was evolved to ensure payment of compensation to the workers. Only one government undertaking that decided to close down has paid compensation to workers. There is no reason why the SC could not set up a committee to ensure payment of compensation to workers as it did to protect employers’ interests.

This judgement not only violates the fundamental rights of the workers but also the statutory provisions regarding the closures and retrenchment of workers under Chapter V of the Industrial Disputes Act, 1947.

According to Section 25F, of the Industrial Disputes Act, 1947 a worker has to be paid compensation at the time of retrenchment and not at some later date. If the compensation is not paid at that time, the retrenchment becomes illegal. Thus the retrenchment of most workers in the above industries has now become illegal.

Even after the deadline of April 30, 1997 set by the Court had expired, most affected workers had not received compensation. When workers approached the SC on the issue of non-payment of compensation they were directed to go to the labour court. It is not as if the apex court is unaware of the delays in the labour court and the difficulties workers experience in these courts. After all, the Court mindful of bureaucratic delays, had ordered a single window clearance for industries to help them relocate and reiterated the direction in its December 4, 1996 order. In the case of workers it did not find it necessary to set up a nodal or monitoring agency to ensure that due compensation is paid and paid before the last date set by the Court.

More importantly, in this case the retrenchment, even though it has become illegal, is a direct consequence of the SC orders. No labour court would hold this retrenchment illegal in such circumstances.

While the SC order underscores the right of citizens (especially the urban elite) to live in a clean and safe environment, it has not adequately addressed itself to ensuring that people have the right to work in clean environment... The present SC order concerning the Delhi industries has done nothing to ensure that the functioning at workplace and industries improves from the point of view of workers’ and peoples’ health.

The closure of industries will only increase the immiserisation of the people, which in turn will lead to conditions that are not conducive for environment protection. The need is to make the industry invest in pollution control and cleaner technologies rather than allow them the easier way out by closing down while they shift to pollute elsewhere.

At the initial stages of PIL, in the 80s, the SC had directed its efforts at securing workers’ rights. The SC, in Workers of M/s Rohtas Industries Limited v. M/s Rohtas Industries Ltd., held that payment of salaries and wages due to workers will have priority over payment to creditors like banks and financial institutions and directed that the goods lying in stock be sold off to pay workers their wages till the date of closure.

Workers’ right to participation in management was also upheld in NationalTextile Workers’ Union v. P.R. RamaKrishnan. The SC held that although the Companies Act does not provide for the participation of the workers in the winding up proceedings of a company, yet they are entitled to be heard in those proceedings, because they have a direct interest in the company’s continued functioning.

The SC in this case drew inspiration from Article 43A of the Constitution that enjoins upon the State to ensure participation of workers in management of industries. The above cases had come to the SC on the issue of workers’ participation in proceedings regarding sale or winding up of a sick industry. And the Court rightly held that the voice of workers must be heard since their jobs and, by derivation their right to life, is at stake.

A decade later the SC had reoriented itself to serve the interests of the New Economic Policy, and to liquidate workers’ rights to that end. In the nineties when environmental concerns led to orders of closure of industries, the SC jettisoned the right of workers’ participation in closure proceedings, without assigning any reasons. The same logic that dictates workers’ participation in closure of sick industrial units should also operate in the case of environmental litigation, but the SC has not even touched the issue.

 In case the SC feels compelled to stop an economic activity due to environmental concerns, it has to reconcile the interests of all affected parties. By denying a hearing or alternatives to workers the SC judges are directly violating their constitutional mandate.

6. Unconstitutional Procedure — Null and Void Judgements

The obvious answer therefore to the question that what happens if the SC violates principles of natural justice is that its judgements can be overruled by an Act of Parliament.

All the same it would be more appropriate if the Supreme Judiciary (to retain its credibility and dispense justice) constitutes a full bench to review all its PIL judgements - in which principles of natural justice stand violated - under Article 137 of the Constitution. For the review to be effective and just, notice should be issued to all affected parties and a reasonable opportunity should be given to them to state their case.

Moreover all future PILs should be treated as regular writ petitions or class action suits if people other than the petitioner are affected. The procedure adopted should also be the same as for a regular writ petition or class action suits. Even SC has also noted this in a judgement:

There is no provision under Order XXXV for any special procedure in respect of a public interest petition under Article 32. The petition will have to be served on the respondents who have a right to file a counter-affidavit. Although the proceedings in a public interest litigation may not be adversarial in a given case, there can clearly be different perceptions of the same problem or its solution and the respondents are entitled to put forth their own view before the Court which may or may not coincide with the view of the petitioner. The Court may come to a view different from that of any of the parties.

This study too makes a case for the necessity of following the due process of law even in PIL. This does not require a new Act. The procedures already exist and are diligently followed in regular litigation. There are three essential components of following procedure: One, it must give notice to all concerned parties, which anyway is a part of the rules of natural justice. Second is public accountability. Third is reason i.e. the Court must clearly state the reasoning by which it has arrived at a decision, so that the affected parties, and any others interested in the issue, are aware of how and why an order has been passed.

Since PILs in the SC are filed under Article 32 (in High Courts under Article 226) of the Constitution, the State is a necessary party to the proceedings, but other affected parties are not given a notice. These cases ordinarily would have been treated as Class Action Suits. Class Action Suit means that where certain people have common rights that are threatened, one person, with the permission of the court, can file a representative suit on their behalf. Provisions regarding Class Action Suits already exist in order 1, Rule 8 and 8A of the Civil Procedure Code, 1908 and for writ petitions under Order XXXV of The Supreme Court rules, 1966.

The problem that arises in not using the provisions of Class Action Suits and SC rules in writ petitions filed as PIL is that petitioner is not bound to make other people who may get adversely affected, parties to the suit. It is left to the discretion of the Court whom to make parties. As we have seen in this report only those people who were in a position to defend the charge of violation of procedure have been made parties.

Also judges themselves are not infallible. They come with their own baggage of political, moral and religious convictions, which may affect the outcome of a case. Procedural safeguards are therefore necessary to avoid the undue impact of such extraneous matters. By following procedural safeguards they are forced to listen to all viewpoints and come to a reasoned judgement.

Moreover the larger question of public accountability in PIL has now assumed greater urgency as large sections are often immediately and adversely affected by judgements passed without having been given the opportunity to be heard. So long as the SC was just adjudicating between two private parties in a suit the question of public accountability did not arise (although even in adversarial litigation questions of public interest are often decided). The advantage of the procedure followed in adversarial litigation is that both sides are adequately represented.

In PIL too, in the beginning the State adopted an adversarial position denying all allegations made by the petitioner. As a counter measure the Court had insisted that PIL is not adversarial in nature.According to Sathe:

When the Judges spoke against the adversary procedure, they did not mean that any evidence would be believed without giving an opportunity to the other party to show that it was false. To that extent, the adversary procedure could not be dispensed with. However, what the Courts expected from the respondent, which was the State in most of the cases, was that instead of taking an adversary position and merely denying the allegation, it should help the Court to find out the truth.

But now that the nature of PIL has changed, if conflicting concerns and interests

of various groups have to be adjudicated then they should also be represented in the Court.

The third important aspect is the duty to give reasons. It has now come to be accepted as an integral part of the principles of natural justice. The SC has over the years insisted that administrative and quasi-judicial bodies have to provide reasons for their orders.

Stating reasons is desirable in all cases, but its importance in PIL can hardly be over emphasized as by definition it affects the larger public. The SC has at times rejected petitions and intervention applications from groups who were going to get directly affected by the outcome of the case, without assigning any reasons. There is no clear policy of permitting interventions. The policy for allowing interventions in PIL should be liberal so that all concerned interests are adequately represented.

Also, in such cases it should be incumbent upon the Court to cite reasons for its decision. It cannot and should not be allowed to whittle down to a dialogue between the State and the petitioners who in many cases come with their own preconceived ideas of a problem.

In the final analysis the Courts must follow the due process of law in all cases and protect the fundamental rights of the people as mandated by the constitution.

[The author is a Delhi based advocate and a member of PIL Watch Group and can be contacted at pilwatchgroup at gmail.com]