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Extracts from a paper delivered at the International Centre for Ethnic Studies, Colombo by Dr. Lakshman Marasinghe, Fellow of the Indo-Canadian Shastri Institute, New Delhi, and Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada.

(Continued from 3 Dec. 03)

The Supreme Court ordered the CBI to proceed with the investigation and submit their Report to that Court for action. The CBI was directed to disregard the "Stop" order issued by the present government of Sikkim, to have the investigations terminated.

There are numerous decisions of the Supreme Court and the High Courts of the various States, where bold interventions have been made with the executive departments of the governments of the various States and the government of India to have corrupt practices stopped, and those who practise them brought to justice. The courts have disregarded that these miscreants may have had the protection of State patronage or social privilege.

In one of the landmark decisions pertaining to the electoral process, the Supreme Court held, that notwithstanding the independence of the Election Commission as a Statutory body, its functions are subject to judicial review. This effectively prevents political authorities interfering with the work of the Commission.

One of the heavily litigated areas utilizing Public Interest Litigation has been the awarding of licenses for the sale of petroleum by the Minister of Petroleum Industries.

In Common Cause, A Registered Society (Petrol Pumps Matter) v Union of India, the Supreme Court found that the Minister of Petroleum Industries had allocated petrol pumps, to his friends and political supporters, which ensured to them the supply of Petroleum Products, and therefore the Minister was found"to have acted in bad faith and had breached the public trust." The Supreme Court therefore ordered that the allocations so tainted to be set aside, and fresh allocations made in a fair and equitable manner.

The instrumentalities of the court were left available for further action, so as to ensure that the Minister does make the fresh allocations equitably and fairly. Further, the court after receiving extensive evidence from outside resources, laid down guide lines which the Minister must strictly follow when making such allocations of petrol pump licenses.

In Vineer Narain v Union Government the Central Bureau of Investigation seized a set of diaries belonging to one Mr. Jain. The diaries contained details of bribes given to both members of the public in high places and to politicians, in order to obtain certain undue favours.

In this writ petition filed as a matter of PIL the petitioner complained that the CBI has not acted on the information they had received from the Jain diaries. The petitioner wished to move the court to have the CBI Act upon the information and bring charges if necessary.

Accordingly, the Supreme Court directed the CBI to proceed with the inquiries forthwith and report back to the Supreme Court. While making the order the court observed that: "There is an urgent and important need for scrutinising the conduct of persons holding high public offices and the consequent need for insulating and protecting the CBI from extraneous influences thwarting its effectiveness in investigating offences and also there is a need to establish a strong, competent and independent prosecution machinery to lend support to the CBI.

Without these, rights to equality and the protection of human rights would become just a myth."

The CBI thus was made responsible to report to the Supreme Court out of which some of those who were responsible for the Bofort scandal were prosecuted. (iv) Protection of the environment

The Supreme Court has been particularly concerned with the protection of the environment. The court has often expressed the view that the provision of a healthy environment was an important element in the provision of all other amenities of life, such as food, health, education and shelter. It was also considered to be a fundamental right of all citizens to enjoy a healthy environment. Towards this end the Supreme Court has used several strategies to eradicate pollution, and thus provide the citizens with a healthy environment.

In Vellor Citzens' Welfare forum v Union of India the Supreme Court directed the Chief Justice of the Madras High Court to establish a Green Bench to hear matters concerning the environment. Matters regarding the environment is best dealt with in a specialist court established at the place where the degradation takes place, particularly in a massive scale as in the State of Tamil Nadu. The court observed that many States in the Union has in recent times established such courts to deal with problems arising out of pollution at the locus rather than by the Supreme Court at distant New Delhi.

In Indian Council for the Enviro-Legal Action v Union of India the petitioners alleged that the Union Government has failed to implement the available anti-pollution laws of the land and thereby had allowed a state of anarchy to arise out of a condition of uncontrolled pollution.

The Supreme Court ordered the officers who were responsible under the various pollution statutes to implement them and to report to the court of the progress they had achieved in doing so.

The court further observed that by making such orders and making such directions, there was no usurpation of either the legislative power or the executive power of Parliament. The matters arising out of a degradation of the environment amounted to a violation of the citizens fundamental rights, and the courts have an obligation to protect them.

Another basis for justifying the making of orders and directions was that a consistent and continuing failure to implement a law that affects citizens adversely create a lawless society that could lead to social unrest. The constitution provides the citizens with the hope that the State would provide a safe society. The court observed that to expect such to be provided from the State was a fundamental right of the citizen.

In a different action instituted against the Union of India, the Supreme Court agreed with the above mentioned Indian Council for Enviro-Legal Action, the petitioners, have an action against three bodies, namely (i). Union Government, (ii) State Governments; (iii) The pollution Boards of each State, which are statutory bodies.

These respondents could be cited in a Public Interest Litigation action without having to bring in the polluters as additional respondents. The petitioner may have difficulties in establishing who exactly was the polluter. The petitioner may not have the financial resources to establish that fact. Instead he is only required to establish that there has been a pollution of the environment. This he could do by leading direct evidence.

The pollution in the City of Nainital was the subject of a report. The report found that pollution was a result of accumulation of horse droppings, human excrement and unauthorised building operations. The City Council of Nainital had failed to implement this report. The Supreme Court ordered the City to implement the report and submit a statement of compliance to the Supreme Court.

(v) Religious practices

One of the most sensitive areas in which Public Interest Litigation has been used concerns conflicts arising out of religious practices. The principle provisions of the constitution which establish the freedom of religious practices are contained in Articles 25 and 26. Article 25 provides that "Freedom of conscience and free profession, practice and propagation of religion".

These freedoms were made subject "to public order, morality and health...." Article 26 declares the "freedom to manage religious affairs by estbilishing and maintaining institutions for religious or charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law." These too have been made subject "to public order, morality and health....". Therefore Article 26 too is subject to the same conditions as those that govern Article 25, namely; "Subject to public order morality and health."

In The State of West Bengal v Ashutoshi Lahiri a Hindu in this PIL, claimed "Standing" to have the slaughter of cows on BakrI'd prohibited. The State of West Bengal took the position that under the West Bengal Animal Slaughter Control Act of 1950, sections 4 and 12 exempted from the prohibition of slaughter of cows on BakrI'd, and therefore that the petitioner had no "Standing". The Supreme Court however, allowed the petitioner "Standing", and explained the basis for its decision.

The 1950 Act prohibited the slaughter of healthy cows.

That decision was taken by the legislature to preserve the capacity of the State to satisfy its needs for the supply of milk products. But an exception was made for the slaughter of cows, on BakrI'd day. However the court referred with approval, to one of their previous decisions in Mohamed Hanif Quareshi v State of Bihar where that court referred to an opinion found in Hamilton's translation of the Hedaya, Book XLIII (at page 592). With reference to that passage the court observed:

"it is the duty of every free Mussalman arrived at the age of maturity, to offer a sacrifice on the I'd Kurban, or festival of the sacrifice, provided to be then possessed of Nisab and then not to be a traveller. The sacrifice established for one person is a goat and for seven a cow or a camel. It is, therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not seem obligatory that a person must sacrifice a cow. Once the religious purpose of Muslims consists of making sacrifice of any animal which should be an healthy animal, on BakrI'd, then slaughtering of a cow is not the only way of carrying out that sacrifice."

This approach avoided the occurrence of the annual Hindu-Muslim riots which have in the past plagued India. In Mohamed Aslam v Union of India, the Supreme Court declared, and having declared directed the State governments to take all necessary steps for safeguarding all religious places belonging to all religions. The Supreme Court there re-stated the equality of all religions under the constitution.

(vi) A Potpourri of other areas

The Supreme Court of India has used Public Interest Litigation in a number of areas with success, to ameliorate the burdens that may befall the Indian citizenry. The list is not closed and this list will never be closed. This area of jurisprudence has given the ingenuity of the Indian Judiciary to forge new legal weapons to combat a variety of social evils.

Among a medley of cases the Supreme Court has, over the years, made it is special concern to ensure the provision of safe blood for blood transfusions. In Bahjit Singh Malik v Delhi Golf Club the Court refused to stop the establishment of a Golf Club as it found that recreation was an aspect of life that all citizens are entitled to enjoy.

It also refused to order the State government of Jammu & Kashmir to make the treacherous Phalgam Highway turned into an all weather road due to the high cost that the State government may be compelled to incur. The court found that there was an alternate safe road to the Phalgam Highway that was available. In Re Bhavani-River Sakthi Sugars Ltd., the Supreme Court ordered the Sugar factory owners to stop polluting the Bhavani River.

A taxpayer made an application to court to have an order issued against the Treasury, directing the Treasury, to recover from the Prime Minister the cost of using an aircraft of the Indian Air Force, to travel in India in his capacity as the President of a political party. The Supreme Court held that the department of State which is responsible for recovery of such expenses was the Department of National Defence and not the Treasury.

In SudipMazumdar v State of Madhya Pradesh The inhabitants of Itarsi were in the habit of going over land used by the Indian Army for target practice as a firing range. They were Tribals. They had little or no knowledge of the dangers that were encountering.

They often picked up live ammunition and these having exploded caused them severe injuries. Some were even maimed. The petitioner who was a Member of the Lok Sabha brought this PIL action against the State government. It was alleged that the State government was responsible for the well being and safety of the Tribals.

It was therefore alleged that the State government was obligated to take preventive measures to protect the Tribals from getting into this firing zone. A high level committee recommended the building of a wall to keep the Tribals out. But that would have necessitated the cutting down of 40,000 trees which could have caused an ecological disaster.

Therefore erecting a barbed wire fence which is to be patrolled, was suggested. The Supreme court accepted that proposal. The State government asked for 35 months to complete the project. The Supreme Court after receiving various Reports settled on 21 months. The State Government was directed to Report back to the Supreme Court on completion of the construction.

In Sudip Mazumdar v State of Madhya Pradesh this matter was taken up after 21 months and the State of Madhya Pradesh Reported to the Supreme Court the completion of the erection of the fence. In these proceedings the court found to its satisfaction that the Report provided by the high level committee had been implemented, as previously ordered by the court. The matter was ordered to be closed.

There has been a number of instances where academic appointments, promotions, sacking and demotions had come before the Supreme Court by way of Public Interest Litigation.

It has also being used to protect and advance the interests of the legal fraternity including the judges at all levels of the judiciary, including the Supreme Court. The landless made a claim to State land upon which they were living.

The Supreme Court ordered the State government to appoint extra officers to enquire into their claims and make a permanent settlement. Until then, the illegal occupancies were not to be disturbed by eviction.

(Concluded)

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