Frivolous Public Interest Litigation must be avoided!

Writ Petition on false facts:

The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary. There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR. There is no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a Constitution Bench of 5 Hon’ble Judges of this Court in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655 wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the CBI if given publicity, will have a far reaching effect on the Judge and the litigant public. The need, therefore, is of judicious use of action taken under the Act. There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision. Continue reading “Frivolous Public Interest Litigation must be avoided!”

National Anthem playing in Cinema Halls in India

Directions to play National Anthem of India

On 30th November, 2016, taking note of the assertions made in the petition, Court had passed an interim order, which reads thus:-

―Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:-

(a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which 3 may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.‖

4. After issuing the directions, this Court noted the submissions of the learned Attorney General which were to the following effect:-

―We have so directed as Mr. Mukul Rohtagi, learned Attorney General for India submits with all humility at his command and recommend that National Anthem has to be respected. The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National 4 Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

Modification of directions on 14th February, 2017

In view of the aforesaid, it is clarified that when the National Anthem is sung or played in the storyline of a feature film or par of the newsreel or documentary, apart from what has been stated in the order dated 30.11.2016, the audience need not stand.

At this juncture, we may state that the Parliament has brought a new legislation called ‘The Rights of Persons with Disabilities Act, 2016. Section 102 repeals ‘The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. This Court on 9.12.2016 has modified the earlier order regard being had to the handicapped persons keeping in view the 1995 Act. On a query being made, Mr. Mukul Rohatgi, learned Attorney General for India submitted that the Union of India shall issue an appropriate notification/guidelines in view of the language employed in the Rights of Persons with Disabilities Act, 2016. The said notification/guidelines may be issued within a week hence.

Mr. Subhash Chandran, learned counsel submits that he may be permitted to file an application for intervention on behalf of the National Platform for the Rights of the Disabled. He is at liberty to file the application.‖

7. On 18th April, 2017, dealing with I.A. No.15 of 2017, which also related to disabled persons, certain modifications were made. The said order is as follows:-

―This is an application filed by the NPRD to direct the respondent No.1 to exempt certain categories of disabled persons from the purview of the order of this Court dated 30th November, 2016 and 9th December, 2016. The categories of persons mentioned are:-

(i) Wheel chair users – can be cerebral palsy, Parkinsons, Multiple sclerosis, Muscular dystrophy or other conditions

(ii) Those with autism

(iii) Those with cerebral palsy

(iv) Intellectual disabilities

(v) Mental illness

(vi) Deaf blind

(vii) Multiple disabilities

(viii) Parkinsons, Multiple sclerosis

(ix) Leprosy cured

(x) Muscular dystrophy Having heard learned counsel for the parties, we are inclined to modify the orders and direct that the persons who are wheel chair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, parkinsons, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind be treated not to be within the ambit of the orders passed by this Court.

As far as the other categories, which we have not referred to mentioned in the application, are concerned, the same may be considered by the Union of India.

Modifications dated 9th January 2018

When we consider the perspectives put forth before us pronounced in their own way, we have no shadow of doubt that one is compelled to show respect whenever and wherever the National Anthem is played. It is the elan vital of the Nation and fundamental grammar of belonging to a nation state. However, the prescription of the place or occasion has to be made by the executive keeping in view the concept of fundamental duties provided under the Constitution (See article 51-A) and the law.

In view of the aforesaid, we do not intend to keep the writ petition pending and dispose of the same with the following directions:-

(i) The Committee appointed by the Union government shall submit its recommendations to the competent authority in terms of the Notification dated 5th December, 2017, for follow up action.

(ii) The order passed on 30th November, 2016, is modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.

(iii) Since the Committee constituted by the Union government is looking into all aspects of the matter, it shall make its recommendations uninfluenced by the interim directions of this Court, as clarified in our order dated 23rd October, 2017. Similarly, the competent authority shall in taking its decision(s) not be constrained or influenced by any of the interim directions.

(iv) Citizens or persons are bound to show respect as required under executive orders relating to the National Anthem of India and the prevailing law, whenever it is played or sung on specified occasions.

(v) The exemption granted to disabled persons shall remain in force till the final decision of the competent authority with regard to each occasion whenever the National Anthem is played or sung.

[Source: Shyam Narayan Chouksey vs Union Of India, decided by SC on 9 January, 2018]

Public Interest Litigation (PIL) in United Kingdom.

Public Interest Litigation travels to United Kingdom.

Public Interest Litigation is a creation of Supreme Court of India which in 1970’s taking notice of various wrongs, especially the matters of illegal detention of prisoners in prisons in all over India. Later the Public Interest Litigation expanded to all other aspects of administration as well which hitherto-before were the matters in the exclusive domains of executive of Indian Government. It appears the erstwhile colonial masters could not resist the temptation of Public Interest Litigation, as well.

Public Interest Litigation, is a relaxation of rule of Locus Standi where by,
the absence of personal interest by the petitioner is over looked by Court.

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments. It is not, in my view, a sufficient “answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.

[Source: R v Inland Revenue Commissioners, ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 (by Lord Diplock at 644E G,)]

“The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant’s interest is one of the factors to be weighed in the balance.”

[Source: (Sir John Donaldson in R v Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763. At 773H) which was followed in R v Secretary of State for Foreign and Commonwealth Affairs, (1995) 1 WLR 386]