2010 Supreme(SC) 80

2010 (1) Supreme 227
SUPREME COURT OF INDIA
Dalveer Bhandari, J.
State of Uttaranchal — Appellant
versus
Balwant Singh Chaufal & Others — Respondents
Civil Appeal Nos. 1134-1135 of 2002
Decided on : 18-1-2010.

IMPORTANT POINTS
1. Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years.
2. It is expected from a Hon’ble member of the noble profession not to invoke the jurisdiction of the court in a matter where the controversy itself is no longer res integra.
3. It is the bounden duty of the court to ensure that the controversy once settled by an authoritative judgment should not be reopened unless there are extraordinary reasons for doing so.
4. The Indian Courts by its judicial craftsmanship, creativity and urge to provide access to justice to the deprived, discriminated and otherwise vulnerable sections of society have touched almost every aspect of human life while dealing with cases filed in the label of the public interest litigation. The credibility of the superior courts of India has been tremendously enhanced because of some vital and important directions given by the courts. The courts’ contribution in helping the poorer sections of the society by giving new definition to life and liberty and to protect ecology, environment and forests are extremely significant.
5. The petition which is a clear abuse of the process of law and filed for extraneous considerations and also has the potentiality of demeaning a very important constitutional office, deserves to be discarded and discouraged so that no one in future would attempt to file a similar petition.

Headnote:1. Constitution of India, 1950 - Article 165 read with Article 217- Qualification to be appointed a Judge of a High Court - Advocate General for the State can be appointed after he/she attains the age of 62 years- Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. (Para 15)

        2. Constitution of India, 1950 - Article 226 – PIL- Extraordinary jurisdiction of the High Court- Not to be invoked in a matter where the controversy itself is no longer res integra -In the instant case, one of the petitioners before the High Court was a practicing lawyer of the court- He invoked the extraordinary jurisdiction of the High Court in this matter- It was expected from a Hon’ble member of the noble profession not to invoke the jurisdiction of the court in a matter where the controversy itself was no longer res integra (Para 20)

        3. Constitution of India, 1950 - Article 226 –Duty of the Court -It is the bounden duty of the court to ensure that the controversy once settled by an authoritative judgment should not be reopened unless there are extraordinary reasons for doing so. (Para 21)

        4. Public Interest Litigation – Definitions by - Black’s Law Dictionary - Advanced Law Lexicon- The Council for Public Interest Law set up by the Ford Foundation in USA (Paras 27, 28, 29)

        5. Public Interest Litigation – Origin and contours –Public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts- The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the country- The Courts’ directions have immensely benefited marginalized sections of the society in a number of cases-It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. etc-The court’s directions to some extent have helped in maintaining probity and transparency in the public life-This court while exercising its jurisdiction of judicial review realized that a very large section of the society because of extreme poverty, ignorance, discrimination and illiteracy had been denied justice for time immemorial and in fact they have no access to justice-Pre-dominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society, this court has initiated, encouraged and propelled the public interest litigation- The litigation is upshot and product of this court’s deep and intense urge to fulfill its bounded duty and constitutional obligation.’ (Paras 33, 34)

        6. Public Interest Litigation- Rule of locus standi- ‘Aggrieved person’ -Right to life and liberty – Meaning of right to life and liberty expanded- Golden era of the public interest litigation -The courts expanded the meaning of right to life and liberty guaranteed under article 21 of the Constitution-The rule of locus standi was diluted and the traditional meaning of ‘aggrieved person’ was broadened to provide access to justice to a very large section of the society which was otherwise not getting any benefit from the judicial system- This can be termed as the first phase or the golden era of the public interest litigation.’ (Para 35)

        7. Processual jurisprudence -In India- ‘class actions’ - ‘Public interest litigation’ - ‘Representative proceedings’ -Our current processual jurisprudence is not of individualistic Anglo-Indian mould-It is broad-based and people-oriented, and envisions access to justice through ‘class actions’, ‘public interest litigation’, and ‘representative proceedings’- Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy- Narrow concepts of ‘cause of action’, ‘person aggrieved’ and individual litigation are becoming obsolescent in some jurisdictions. (Para 36)

        8. Public Interest Litigation- Abuse of –Should be discouraged -Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives- Held genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged- (Paras 161, 162)

        9. Public interest litigation – Nature -– Not adversary litigation-‘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 Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements.’ (Para 39)

        10. Constitution of India, 1950- Articles 32 and 226 – Remedies- Public Interest Litigation- The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups- In suitable cases, the courts have also given guidelines and directions- The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation.’ (Para 43)

        11. Public Interest Litigation- Phase-I-‘It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts.’ (Para 45)

        12. Public Interest Litigation- - Phase-II It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc.etc. (Para 45)

        13. Public Interest Litigation- Phase-III- It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance. (Para 45)

        14. Public Interest Litigation- Development by and contribution of the courts in India-The Indian courts may have taken some inspiration from the group or class interest litigation of the United States of America and other countries but the shape of the public interest litigation as we see now is predominantly indigenously developed jurisprudence-The public interest litigation as developed in various facets and various branches is unparalleled- The Indian Courts by its judicial craftsmanship, creativity and urge to provide access to justice to the deprived, discriminated and otherwise vulnerable sections of society have touched almost every aspect of human life while dealing with cases filed in the label of the public interest litigation- The credibility of the superior courts of India has been tremendously enhanced because of some vital and important directions given by the courts-The courts’ contribution in helping the poorer sections of the society by giving new definition to life and liberty and to protect ecology, environment and forests are extremely significant.’ (Paras 159, 160)

        15. Public Interest Litigation- Abuse of the process of law - Petition has been filed for extraneous considerations demeaning a very important constitutional office- Deserves to be discarded and discouraged- Costs of Rs.1,00,000/- ordered to be paid

        (Paras 191, 192)

        16. Public Interest Litigation- Directions issued by the Supreme Court- (Para 199)

       Facts of the case :

        The appointment of L. P. Nathani was challenged before the High Court in a Public Interest Litigation on the ground that he could not hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution on the ground that Mr. Nathani was ineligible to be appointed as the Advocate General because he had attained the age of 62 years much before he was appointed as the Advocate General. The High Court entertained the petition and directed the State Government to take decision on the issue raised within 15 days and apprise the same to the High Court. The State of Uttaranchal preferred special leave petitions before the Supreme Court on 6.8.2001. The Supreme Court vide order dated 9.8.2001 stayed the operation of the impugned judgment of the High Court. Thereafter on 11.2.2002, the Supreme Court granted leave and directed that the stay already granted shall continue. Despite the service of notice, the respondents who had initially filed the writ petition before the High Court challenging the appointment of Nathani as the Advocate General did not appear before the Supreme Court.

       Findings of the Court :

        A practicing lawyer deliberately abused the process of the court. In that process, he has made a serious attempt to demean an important constitutional office. The petitioner ought to have known that the controversy which he had been raising in the petition stands concluded half a century ago and by a Division Bench judgment of Nagpur High Court in the case of Karkare (supra) the said case was approved by a Constitution Bench of this court. The controversy involved in this case was no longer res integra. It is unfortunate that even after such a clear enunciation of the legal position, a large number of similar petitions have been filed from time to time in various High Courts. The petitioner ought to have refrained from filing such a frivolous petition. A degree of precision and purity in presentation is a sine qua non for a petition filed by a member of the Bar under the label of public interest litigation. It is expected from a member of the Bar to at least carry out the basic research whether the point raised by him is res integra or not. The lawyer who files such a petition cannot plead ignorance. It was made clear that it could not be said that the petitioner cannot ask the court to review its own judgment because of flaws and lacunae, but that should have been a bona fide presentation with listing of all relevant cases in a chronological order and that a brief description of what judicial opinion has been and cogent and clear request why where should be re-consideration of the existing law. Unfortunately, the petitioner had not done this exercise. The petition which had been filed in the High Court was a clear abuse of the process of law and there was no doubt that the petition had been filed for extraneous considerations. The petition also had the potentiality of demeaning a very important constitutional office. Such petition deserved to be discarded and discouraged so that no one in future would attempt to file a similar petition. On consideration of the totality of the facts and circumstances of the case, the appeals filed by the State was allowed and the proceedings of the Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001 filed in the Uttaranchal High Court was quashed. The Court further directed that the respondents (who were the petitioners before the High Court) to pay costs of Rs.1,00,000/- (Rupees One Lakh) in the name of Registrar General of the High court of Uttarakhand. The costs to be paid by the respondents within two months. if the costs was not deposited within two months, the same was to be recovered as the arrears of the Land Revenue.

       Result : Appeals allowed.