Special sanitised trains and buses may be operated for migrants

                         

  Extension of lockdown till 3^rd May was not unexpected yet some miscreants are out to provoke innocent people at some places to discredit the government.  They need to be sternly dealt with. Having said so, it was also expected that the Prime Minister would make certain announcements regarding relaxation to small industrial and business activities. It is now presumed that it has been left to the state governments to firstly take stock of the situation and decide about the appropriate action while strictly complying with the lockdown.

  There is no doubt that the governments have been making arrangements for the free food and shelter to a large number of poor people but that is not only inadequate but demeaning as well. Living on free foods is against self-respect and human dignity. In fact, it is like a war between ' life versus life'. We can certainly save the lives of the people by strict observance of the lockdown but how can we save the lives of the people dying of starvation unless they are allowed to earn their livelihood? In fact, people have, many times, given more importance to livelihood than to life, as they say, that ‘bina jeevika ke Jeevan vyarth’ i.e.  ‘Life sans livelihood is meaningless’.

    My younger brother Harinand is a hotelier in Azamgarh district of eastern Uttar Pradesh and he tells me that due to lockdown, the business activities, particularly in the hospitality and transport sectors are the worst hit.  Hotels, roadside eateries, and restaurants have come to a grinding halt creating enormous problems to their owners and workers. They do not have enough cushion money to sustain for any longer. Another big problem that has arisen for the farmers because of the harvesting season. It has, in turn, posed the serious problem of ‘supply chain’ of essential commodities because neither trucks nor other modes of transport are available on the roads.

   The government will, therefore, have to give serious thought over this unforeseen monumental crisis. Farmers and small-time businesspersons are now caught between ‘devil and deep-sea’. Moreover, if our people stranded in many countries were brought by special planes to India,  why can’t some special sanitised trains and buses be operated for migrant workers to take them to respective villages and native places? This will help them in having much-needed psychological security.

The Man Before Mahatma: A Well Rearched Book

   All of us have read many articles, essays and even books on the life history of Mahatma Gandhi.  His autobiography “my experiment with truth” has been one of the most popular books not only in India but throughout the world. Mahatma Gandhi himself has written that he was a ‘very timid and shy person’ in the early days of his life. One hardly finds any outstanding quality in him in his younger days. But as they say, patience and perseverance can even shake the mountains. This was more or less true about Mahatma Gandhi.  His resolve and determination have always been very unique and inimitable.

      He left Indian shores, at the age of 18, for England to study law and came back to his country exactly after four years with an enviable degree of Barrister at Law. He had still not completed his 22 years of age when he started his legal practice at Rajkot, but it was no less than a disaster for him because nobody was ready to engage him for two reasons. Firstly, nobody wanted to give his case to a raw lawyer like him, whose understanding of the local judicial system was untested and secondly; since he was a Barrister at Law, a very intimidating degree for the people of Rajkot, as they thought that they might have to pay unaffordable fees to him. So, he shifted from Rajkot to Bombay High Court. Here also he was a failure because he was not ready to pay any cuts to the touts A tout was (and is still) a who would hunt down litigation to bring it to the barrister for the payment of a fee.  While this practice was considered unethical, it was nonetheless employed even by some of the most successful members of the Bombay bar.  

    Not getting any success as a lawyer Gandhi even tried to get a job of a part-time teacher of English in a well-known school of Bombay for a paltry remuneration ( yes, it was a paltry sum for a barrister) but here also the failure was in store for him because he was not a Graduate. He pleaded that his passage of the London matriculation examination should qualify him to teach, but the school refused his entreaty. So again, he returned to Rajkot, where his younger brother Laksmandas was having very good connections with some successful Gujrati businessmen settled in South Africa. Incidentally, an Indian company in South Africa was in search of a legally trained person, who knew Gujrati and English both. Thus, his brother helped him to get a decent job as a lawyer in South Africa. Here also initially he had to eat humble pie, humiliation and embarrassment on many occasions in the courtroom as well as outside the court. However, the same Mohandas Karamchand Gandhi became one of the most respected Indians in South Africa within a very short span of time. A person who used to tremble and sweat in the courtrooms became one of the most impressive speakers and the crowd of many thousands used to listen with rapt attention.

    Look at the incredible change in a person, who used to avoid even placing orders in the kitchens of his hostels during his stay in London because of his lack of confidence in the English language, became one of the best petition writers in simple,  succinct and elegant English was a matter of wonder and amazement. This transformation came in him during his long stay in South Africa. Thus, we see that South Africa became a furnace, which made a man of clay into a strong and steely pillar of strength for a very large section of teeming, toiling and suffering masses of humanity.

    The new book on Mahatma Gandhi titled as ‘The Man Before Mahatma ‘by Professor Charles D Salvo of the West Virginia University makes very fascinating reading. As a teacher of law on Civil Disobedience, the Professor was impressed by the life of Mahatma that he decided to write a book on him before he became a mahatma. The amount of research and the angle of his looking at Gandhiji will be a matter of amazement and wonder for anybody even to we Indians, who are about the feats, principled stands on Satya (truth) and Ahimsa (non-violence) from our childhood. The Professor must be congratulated for his zeal, enthusiasm and obsession to dig out many hitherto unknown facts about Gandhiji and presenting them in gripping language and highly coherent style. It is good to know that an unusual subject like Civil disobedience is prescribed in the curriculum of the law in an American university. This is not only a tribute to Mahatma Gandhi but also pleasure and pride for Indians. The Professor is also well-versed in the Public Interest Law, which has been attracting the attention of the people across the globe, where democracy is the fulcrum of governance.

   This book also throws light on the fact with his painstaking research that the legal profession has never been a bed of roses even if one has obtained the best education from the best institutions. Even a Barrister like Mahatma Gandhi had to toil very hard to establish a stable practice in law. This is the reason that although the talented young boys and girls have been opting for the law, they fear to tread the path of legal practice, which is obviously a loss to the profession. Only a small fraction of them opt for the litigation as the majority of them prefer to work as paralegals in the companies and firms.  This needs to be seriously considered by those who are in the helms of affairs to stop the draining of budding lawyers.  Even today we find that the small oligarchy provides passport of success to s fraction of lawyers. Anyway, it is a different issue, which needs to be raised at the appropriate forum.

    Coming to the book, we are told that Gandhi’s life in South Africa was mainly divided into steams. One was the ‘law and the legal practice’ and the other was the ‘civil disobedience’. In fact, it was the fertile ground for Gandhi ji for the training and the practice as a leader and the lawyer. He carried out in both streams with diligence, sincerity and utmost honesty.  After some time, Gandhi ji came to India when he met several stalwarts of public life and leading legal figures including Firoz Shah Mehta. However, he again went back to South Africa in  1896 to fulfil his unfinished task for promoting the cause of South African Indians. By the time he returned to India in 1914, never to go back to South Africa, he had already become an accomplished and very respected leader of Indians over there.  

   He was working with extraordinary ease in for providing legal help mostly to rich Indian clients but the other aspect of his life in South Africa was to work for the poor Indians, who were known as hawkers, indentured labourers and coolies,  which got him blossomed as the mass leader. In due course of time when the legal profession was becoming a stable source of income, the destiny distanced from it to be drawn into the rough and tumble of political leadership.  He had to, many times, undergo to jails for the cause of Indians in South Africa.  He suffered the insults of being thrown away from the train compartment despite having the bonafide ticket of the first-class journey.  He was once badly beaten by a fellow Indian Muslim client for losing a case in the court of law and would never have survived if a Christian Pastor had not saved him by taking him to a hospital but Gandhi ji never nourished any rancour for that person. Signs of greatness and firm resolution had started emerging in a more pronounced manner in him from that time onward. He did not leave any occasion slip away without fighting. His identity in South Africa for nearly twenty years was that of barrister Gandhi, advocate Gandhi, solicitor Gandhi and a mass civil disobedient leader.  People have a very erroneous impression about Gandhiji not having lucrative legal practice. In fact, after some initial years of struggle, his practice was so roaring that he could funnel enough money for different causes in India as well as in South Africa.

   The book is worth reading by all those who are really interested to know about the making of Mahatma in Mohandas Karamchand Gandhi.  The other aspect of his life that he was a prolific writer, a distinguished journalist and a powerful speaker with original ideas.

Veer Savarkar: A Matchless Revolutionary

   The life history of Vinayak Damodar Savarkar is so touching and heart-wrenching that it moves even a stone-hearted person. The way he escaped from the ship S.S. Morea which was bringing him from Britain to India at Marseilles port of France was a hair-raising story of unprecedented courage and adventure. If the silly and stupid authorities of the French harbour had not handed over Savarkar to the British Police, the history of India would have been altogether different. France was at loggerheads with England, so, ever body genuinely thought that Savarkar would be tried in France and not in India, a colony of Britain.  The feat of Savarkar was the talk of the town not only in India, Britain and France but it was flashed as big news in most of the newspapers of the world. The French government was roundly criticised for its inept handling of the Savarkar’s escape from the ship. He swam from the ship to reach the quay of the port and then ran towards French to be arrested by them but before he could be arrested some startled security handed him over to the crew and the guards of the liner.  

It could have been performed only by a person, who was not only an intellectual giant but also the epitome of fearlessness, formidable inner strength and strong conviction. Thereafter, he was brought to India put in jail and after his trial, he was sentenced to two life imprisonments spanning 50 years. He was sent to Andaman to undergo ‘Saja-e-Kalapani’. He suffered extreme punishment of extracting oil from the oil mills, spinning ropes and pounding of coir. Within a few months of his jail term, he was reduced to skin and bones. The leader that he was, he started organising the convicts also to rise in revolt against the jail authorities for which he was mercilessly beaten by the Jail Jamadars in the Cellular Jail. The extremely bad conditions in which he and his elder brother Ganesh Damodar Savarkar lived in jail and were denied even those facilities which were available to other prisoners speak of the fact that they were considered dangerous by the regime.

The book ‘Savarkar echoes a forgotten past’, is a brilliant biography written by a young historian Dr Vikram Sampath. The book chronicles the life and activities of Savarkar, more known as ‘Veer Savarkar’ from 1883 to 1924. Cellular Jail as the name suggests had only cells and no barracks. Each cell measured 13’6” X 7’6” and there was a small ventilator at height of 9’8”. It was under Mr Barrie, who was considered to cruellest jailor at that time. What is a most surprising thing that even in Cellular Jail Muslim Jamadaras from Balochistan used to get sadistic pleasure in torturing Hindu prisoners and this was the reason that many Hindu prisoners in order to escape the torture were getting converted to Islam. The procedure of conversion was very simple. There were two kitchens; one was meant for Hindus and other was for Muslims. Any Hindu moving to Muslim kitchen to get relief from the cruelties was immediately considered to have converted to Islam. Vinayak Ganesh Savarkar considered it to be an insult to Hinduism and a cause for huge pain to him.

 He was deeply influenced by the founder of the Arya Samaj Swami Dayanand Saraswati, who had also advocated for the reconversion of Muslims and Christians to Hinduism through Shuddhi movement. As a result of it, he started reconverting the Muslims to Hinduism, who were converted to Islam by force, fraud and cheating. This initiative of Savarkar further enraged Muslim Jamadars and they became more cruel towards him.

While reading the Sampath’s book one comes to know that his elder brother Ganesh Vinayak Savarkar was transported to life imprisonment in Cellular Jail much before younger Savarkar i.e. Veer Savarkar reached. The sufferings of elder brother were, in fact, more harrowing than even his younger brother. Anybody who reads the jail accounts of Savarkar brothers will be filled with contempt and anger towards Britishers. Both of them spent a rigorous and inhuman life in Kala Paani for one and half-decade. They were given practically uneatable food. Every trick of the trade was adopted to crush and break them mentally and physically.  Their sufferings were unimaginable, to say the least.

 While in jail Vinayak Damodar Savarkar struggled to avail certain facilities to other prisoners like newspapers and some assorted books to read. They also got the concession of receiving letters from their family members once in six months, earlier it was not possible for any prisoner to get any letter from their family members. And the second thing was the facility of medicines for common deceases like cold, cough and fever etc.

Savarkar had no two opinions about the pride of place for Hindi in Independent India. He started work for the propagation of Hindi even when he from 1906. While in England he had begun work to make Hindi the national language of India. He championed the cause of Hindi to be written in Devnagri script. He always thought that Hindi was an important tool for national unity. It was supported by other national leaders like Baal Gangadhar Tilak and Gandhiji. He was dead superstitions, which was the bane of the poor, illiterate and gullible masses of India

Savarkar vigorously worked for the annihilation of the caste system as he considered it was the biggest weakness of the Hindus. He was chastised all those who believed in it. He used to say that strange and shocking were the ways of Hindus that they make some people untouchable but the moment they converted to Islam or Christianity; Hindus gave them all respect. Therefore, the Hindus must mend their ways and must work for the eradication of the caste system from Hinduism. Thus, Savarkar was not only freedom fighter par excellence but was also a great social reformer. The learning and understanding of Vinayak Damodar Savarkar can be known by reading his books like ‘The Indian War of Independence of 1857’, and ‘My Transportation to Life’.

Both brothers were discriminated against even fellow prisoners. While other prisoners were granted general remission after ten years, they were denied it. Savarkar brothers should have been released after 14 years but they were not allowed. They were political prisoners, but they were treated much worse than hardened criminals.  Their parents died when they were in jail. The baby son and wife of the elder brother died when both of them were in jail. The wife of the elder brother could not get the opportunity to see her husband even when she was on death bed. Veer Savarkar also lost his four-year-old daughter while in jail and he could not get the chance to see her at the time of her death. This personal pains and trauma of Savarkar brothers swell the eyes with the tears of anybody.

The much fuss and hullaballoo, which is created around Vinayak Damodar Savarkar about the letters of apology that he wrote to the government is simply a shameless effort to malign one of the greatest revolutionaries that India had produced. By reading those petitions which have been appended in the book one finds that Savarkar simply raised objections for making discriminatory and inhuman treatment to them. He also pointed out the violations of jail manuals with regard to the injuries that were inflicted on him and his brother. By reading those petitions one finds that Savarkar was never apologetic about his revolutionary activities. Except one of his letters written on 20 March 1920, after ten years of his incarceration, wherein he had asked for showing the magnanimity as ‘magnanimity wins even where might fails’. He never wanted any extra consideration for himself and his brother. He always pointed out in his petitions that they were entitled to remission after spending so much time in the jail. This gripping biography of Savarkar describes the revolutionary zeal of both brothers for the emancipation of India.

For Savarkar India was a pious land and fatherland for those who were born in India and this was the definition for Hindutva for him. He was the opponent of the compromising and conciliatory politics of Mahatma Gandhi but so were Bhagat Singh and many other revolutionaries like them. He considered that the Khilafat Movement was thoroughly communal and retrogressive, which started by those wanted to establish the Islamic Ummah. Mahatma Gandhi fell into their trap for the sake of Hindu Muslim in his struggle for the freedom of the country but these Khalifatists ultimately turned hostile towards Hindus. Thus, Gandhi ji failed to win the support of Muslims.

Savarkar supported for the reformation in Islam, and he believed, that was what undertaken by Kamal Ataturk Pasha in Turkey. So, Gandhi should have extended his support then ruler of Turkey, who had overthrown ‘Khalifa Raj’. By reading this book one comes to know about other revolutionaries like Barin Ghosh, Lal Hardayal, Shyamji Krishna Verma, Madan Lal Dhingra and Madam Cama ji. Savarkar believed in the larger unity among Hindus. He was an ardent admirer of Guru Gobind Singh.  Credit goes to him for popularising the slogan of Vande Mataram. The book is written in a gripping style in elegant English and should be read by everybody to know the sacrifices which were made by Veer Savarkar for the pious land that India is.

  

Panic Reation the Supreme Court

    It is very astonishing indeed that instead of taking the challenge of Coronavirus head-on, the Supreme of India has decided to work with only six benches against the usual 14 benches from Monday till further decision. The crowd in the courts and courtrooms can be minimised not by the half-hearted measures but by modernisation through the use of the Artificial Intelligence (AI). This is also the best time when live streaming of the courts must be taken up in the right earnest.
    Why should the cause list be prepared in a manner when it is almost certain that the case would not reach the Board for hearing on that day? Sometimes a case is shown to be in the cause list for days together keeping the concerned Advocates and clients on tenterhooks. This problem can certainly be solved with the help of technology and better scheduling of time. Most of the cases of the routine nature can be disposed of by the Technology itself providing much time to judges to make its better and fruitful use.
     As a student of law, we were told that an advocate must follow the principle of ABC i.e. Accuracy, Brevity and Conciseness. This principle is also applicable for journalists but unfortunately, it is followed more in the breach than in the observance. Prolixity of averments in petitions, counters and judgments make them boring but again regrettably that has become the part of the habit of the lawyers and judges. The first thing that can be done by the Courts is to strictly follow the ABC.
Secondly, the lawyers should be allotted time to argue their cases with a maximum of ten to fifteen minutes to spill over the stipulated period. If it is adhered to, it will be a big time-saver. But today what we find is that some of the senior counsel are allowed to argue their cases for days together generating more fire than light. Needless, to say that if any advocate wants to read out from the case precedents, he or she should be stopped and asked to submit the list of those cases or books specifying the page numbers. Here also the Artificial Intelligence will be immensely useful.
     And the third thing, which can be done is that in the cause list itself the tentative time of the cases to be taken up should be given and that will not cause unnecessary thronging of the courtrooms. If this procedure or any better method with the help of experts is adopted, it can certainly be a huge relief to the judges, advocates and litigants as well.
    The Supreme Court has done well for filing of the petitions and replies on A4 size papers to be used on sides but why should it not go paperless by stopping the use of papers lock, stock and barrel?
Now coming to the Coronavirus, which has virtually compelled the courts to go for the lockdown. It is a panic reaction and it will not serve much until and unless some effective measures are adopted with the help of technology. It will give further rise to scaremongering. After all, no country can do without the police, army, hospitals and doctors, then why should the other organs of the administration be compelled to remain locked in? Therefore, this emergency must be used for bringing about revolutionary changes.

PIL: Saga of Judge-Made law Acquiring Constitutional Status

Public Interest Litigations (PILs) are the best examples of the Judge-Made laws is because it is nowhere mentioned in the statute. Now PILs have become so popular in our country that most of the High Courts and even the Supreme Court has opened a PIL branch in its registry. Why has it become so popular and how does it differ from writs? There should not be any misunderstanding that PILs are also filed as other writs like; ‘mandamus’, ‘prohibition’, ‘qua warranto’, ‘habeas corpus’ or ‘certiorari’. PILs have actually entered in the Indian judicial process in the 1970s. It is intended to vindicate public interests where fundamental and other rights of the people who are poor, ignorant or socially or economically in a disadvantageous position, and are unable to seek legal redress.  However, with the passage of time PILs have been entertained in other spheres, for example; judicial interventions, necessary for the protection of the sanctity of democratic institutions like the independence of judiciary and elections to the Parliament or Legislative Assemblies; matters relating to the environment, natural resources and pollution such as water, air etc.; even for making judicial laws to avoid exploitation like intercountry child adoptions, sexual harassments etc.

 Locus Standi Dispensed with

In simple words a litigation filed in a Court of law for the protection of public interest such as pollution, terrorism, road safety, constitutional hazards etc. fall in the category of the PIL. Any matter where the interests of the public at large is affected can be redressed through the PIL. The first PIL case, which enunciated its principle can be said to be ‘Ratlam Municipality Case’ of the late seventies. In this case, the principle of ‘locus standi’ was dispensed with. The Supreme Court said in this case that ‘decency and dignity are non-negotiable facets of human rights and are the first charge on local self-governing bodies’, which means there is no need for an individual to raise any dispute but it can be raised by any person without having any locus standi in the matter.

In normal cases, it is seen that the aggrieved party i.e. the victim, who has to file his or her case in a court of law and he/she should have an interest in the dispute but in the filing of PILs, there is no such condition. Any person can file a PIL, the only condition has to be that the same must be filed in the public interest.  Thus, the PIL is the power given to the public by the courts to protect the interests of the public at large. PILs are filed under article 32 of the Constitution before the Supreme Court and Article 226 of the Constitution before the High Court. The Apex Court has framed certain guidelines to govern the management and disposal of the PILs. The court is expected to be careful to ensure that the petitioner, who approaches is acting bonafide and not for personal gain, private profit or political considerations. Many PILs are also filed for the publicity stunts and that is why they are not called genuine PILS but are nicknamed as ‘Publicity Interest Litigations’.

At present, the court can treat letters or epistles as a writ petition and take action upon it. Suo moto cognizance by the judges of the constitutional courts can also be treated as the PILs. It is a tool in the hands of public-spirited citizens who have a good motive to avail justice for the higher and larger good of the public. To prevent it from becoming a weapon in the hands of those litigants who want to either misuse this concept for either commercial gain or publicity the Apex Court has time and again laid down various guidelines and by imposing costs on the frivolous public interest litigation the courts have only strengthened their stance.

Emergence of Public Interest Litigation has motivated the judicial system to extend its protection to new social, public and group interest. An inscription on the wall of Harvard Law School Library reads ‘honest vivera, honalienum leaders, scum unique tridure, ‘which means that ‘the precepts of the law are those to live honourably, not to injustice another to understand his due’. Earlier, back into the horizons of law and justice in the West, the Judaieo Christian, Greek and Roman traditions concerned themselves with theorising and explaining the law. But the traditional and the medieval and post-medieval successors were free of such concern. They rather focussed on one or both of the two very different concerns. One of these concerns which have survived into modern analytical jurisprudence has its main point in facilitating on the vision of the logical coherence of the several prepositions and part of legal order and on fixing the definition of the forum used and the presuppositions which will maximize such coherence.

The seed of the concept of the Public Interest Litigation was actually sown by Justice Krishna Iyer. In 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v/s Abdulbhai,  he while disposing of an industrial dispute in regard to the payment of bonus observed, "Our adjectival branch of jurisprudence, by and large deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom the law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where a foul play is absent, and fairness is not faulted latitude is a grace of processional justice. Test litigations, representative action, pro-bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed on a wider perspective, may be amenable to the ventilation of collective or common grievances, as distinguished from the assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with the fair process is the aim of the law."

However, this rule on gaining momentum burgeoned more and more, expanding its branches in the cosmos of public interest litigation and took its root firmly in the Indian Judiciary and fully blossomed with the fragrant smell in S.P. Gupta v/s Union of India. Rule of Law is an integral part of a democratic society, where citizen's rights are taken care of by an independent and impartial judiciary.

Thus, in every democratic society citizen's access to justice is the hallmark and any encroachment on that right mars the spirit of a democratic system of government. However, in recent years the whole adjudicatory system has become prey to a dilatory and expensive process, which takes a heavy toll on a poor citizen's right of easy access to justice. In the recent era, there has been a tremendous increase in the government's power and responsibilities mainly because of the Indian State is a welfare state, which entails a host of executive interferences in various walks of human life and which leaves no corner of an individual's life untouched. Due to this unprecedented change in socio-economic and political aspects of the governance of the country, the judiciary too has kept pace with it and has assumed several new responsibilities and jurisdictional so for unheard of.

The realization by the judiciary of this new developments executive's increasing inference into daily lives and ever-increasing circumscription of people's access to justice has led them to adopt fewer formal procedures and circumvent the nuances of technicalities of the litigation processes. Since the nineteenth century, various movements in the USA had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the public interest litigation movement began to receive financial support from the office of Economic Opportunity. This encouraged lawyers, public-spirited persons to take up cases of the under-privileged fight against dangers to the environment and public health as well as exploitation of consumers and the weaker sections. It should be noted at the outset that Public Interest Litigation, at least, as it had developed in India, is different from class action or group litigation. The PIL in India has been a part of the constitutional litigation and not civil litigation.  

The Code of Civil Procedure also allows for a class action under Order 1 Rule 8. Furthermore, Section 91 of the Code also says that: ‘in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, maybe instituted with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.‘

After gaining independence from the British rule on August 15, 1947, the people of India adopted the Constitution in November 1949 with the hope to establish a ‘sovereign, socialist, secular, democratic, republic’. Among others, the Constitution aims to secure to all its citizens' justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity). These aims were not merely inspirational because of the fact that the founding fathers wanted to achieve a social revolution through the Constitution. The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‘Conscience of the Constitution, In order to ensure that Fundamental Rights did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education’. Quoting K. Santhanam, a Member of the Constituent Assembly.)  Granville Austin said in his celebrated book that ‘the remedy to approach the Supreme Court directly for the enforcement of any of the rights enshrined under part III has also been made a Fundamental Right.

The holder of the Fundamental Right ‘s cannot waive them nor can the fundamental rights be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution. Some of the Fundamental Rights are available only to citizens while others are available to citizens as well as non-citizens, including juristic persons. Notably, some of the Fundamental Rights are expressly conferred on groups of people or community. Not all Fundamental Rights are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.  Austin cites three provisions, i.e. Articles 15(2), 17 and 23, which have been ‘designed to protect the individual against the action of other private citizens ‘. However, it is reasonable to suggest that the protection of even arts 24 and 29(1) 39 the ‘state ‘is liberally defined in Article 12 of the Constitution to include, the Government and Parliament of India. The Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India ‘. The expression ‘other authorities ‘has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit. The Directive Principles (DPs) find a place in Part IV of the Constitution. Although the DPs are not justiciable, they are, nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. After initial deviation, the Supreme Court accepted that Fundamental Rights (FRs) are not superior to Directive Principles on account of the latter being non-justiciable: rather FRs and DPs are complementary, and the former could be invoked against private individuals.

Contours of PILs

It has become imperative to examine what are the contours of the public interest litigation? What is the utility and importance of the public interest litigation? Whether similar jurisdiction exists in other countries or this is an indigenously developed jurisprudence? Looking at the special conditions prevalent in our country, whether the public interest litigation should be encouraged or discouraged by the courts? These are some of the questions which still need to be discussed.

The Judicial Activism in India can be witnessed with reference to the review power of the Supreme Court under Article 32 of the Constitution, particularly in Public interest litigation cases. The Supreme Court played a crucial role in formulating several principles in public interest litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case. Public Trust Doctrine was brought into play to exercise State Power for eradicating corruption. Social justice requires liberal judicial review of administrative action. Therefore, a public-minded citizen must be given an opportunity to move the court in the interests of the public. Further, the Supreme Court in S.P. Gupta v/s Union of India, popularly known as ‘Judges Transfer Case’, Justice Bhagwati firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions have been filed. Judicial moulding of procedure, substance and relief by two judges of the Supreme Court of India (Bhagwati and Iyer JJ.) prepared the groundwork, from the mid-1970s to early 1980s, for the birth of the Public Interest Litigation in India. This included modifying the traditional requirements of locus standi, liberalising the procedure to file writ petitions.

PIL is not adversarial system

The judiciary also emphasized that public interest litigation is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realize the human rights of disadvantaged sections of society. The Public Interest Litigation in India could be divided, into three broad phases. One will notice that these three phases differ from each other in terms of at least the following four variables: first, who initiated public interest litigation cases; second, what was the subject matter/focus of public interest litigation; third, against whom the relief was sought; and fourth, how judiciary responded to PIL cases.

In the first phase which began in the late 1970s and continued through the 1980s, the Public Interest Litigation cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics). Most of the cases related to the rights of disadvantaged sections of society such as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and women. The relief was sought against the action or non-action on the part of executive agencies resulting in violations of fundamental rights under the Constitution. During this phase, the judiciary responded by recognising the rights of these people and giving directions to the government to redress the alleged violations. In short, it is arguable that in the first phase, the Public Interest Litigation truly became an instrument of the type of social transformation/revolution that the founding fathers had expected to achieve through the Constitution.

The second phase of the Public Interest Litigation was in the 1990s during which several significant changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases became more institutionalized in that several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. In the third phase the width of issues raised in PIL also expanded tremendously. Through an expansive interpretation of the provisions of the Constitution, the courts through Public Interest Litigation have and are continuing to play an important role in the context of making rights meaningful to the disadvantaged and weaker sections of the people as well as those cases where no one could be expected to be directly interested. An important step towards the achievement of these magnificent results have been the expansion of the category of the respondents by the application of the Doctrine of State Action.

In the fourth phase finds its roots in the American Constitution. In interpreting the word ‘State’ in the ‘due process’ and ‘equal protection’ clauses of the 14th amendment to the American Constitution, the Indian Supreme Court held that it included all the organs and acts of the State — legislative, executive and judicial and then its ‘agents’ i.e. persons, who acted in the name of and for the State or is clothed with the powers of the State or endowed with governmental functions. The essence of the doctrine is that the State cannot get rid of constitutional limitations or restraints by simply delegating its powers or functions to some private individual or group; hence, a person who acts as the agent or the instrumentality of the State, he must be subject to the same limitations, such as the Fundamental Rights, that the Constitution imposes on the State itself. The doctrine would apply not only to an agent of the State but even for a lessee from the agent, if the involvement or participation of the State (even by inaction) in the lessee ‘s acts, is established. In India, the application of this doctrine has been much easier because of most of the Fundamental Rights included in Part III of the Constitution.

However, the Public Interest Litigation in the U.S.A. today has fallen into troubled water and future prospects of progress are uncertain. The most striking of the impediments was the inevitable financial crunch caused by runaway inflation and lukewarm backing of like Non-Governmental Organizations societies and other private support bases. However, the interest in pro bono work by Lawyers and Law Firms has continuously declined. The scenario has completely changed in the USA in the late 1970s and the very conditions, which led to its growth earlier, no longer existed. Moreover, public interest lawyers found themselves at a distinct disadvantage in the decision-making process. While they were always able to make persuasive arguments for their clients, they lacked the ability to stay with the issues which required years to resolve, and which ultimately involve action in a series of areas, ranging from the courts to the legislatures. However valid the idea of advocacy equalization may be the scope of activities it entails proved to be far beyond the capabilities of most public interest firms.

The courts and administrative agencies that shape implement and enforce these policies should be open and accessible to the views of those citizens who may be affected by such actions and decisions. One notable thing about Public Interest Litigation is that it is not only concerned with obtaining beneficial results for the major chunk of the society but at the same time it seeks cooperation in carrying out the objectives of the movement by way of actual participation. However, at its peak, the movement had to reconcile the conflicting aspects of the phenomenon it had created or the forces it had unleashed. While on one hand, the groups involved in the movement had to bring as many issues as possible before the courts so as to render maximum participation of the affected sections of the populace, though not necessarily of the disadvantaged section of the society, it also had to be kept in mind that over-proliferation of Public Interest Litigation cases may be bad as it leads to overburdening of the traditional adjudicatory system. Be that as it may, the PILs now stand on a very solid footings in India and if they are judiciously used, they can be very beneficial tools of change.

Parmanand Pandey 

Advocate -on Record 

Supreme Court of India

Guilty of Barbaric Delhi Riots Must be Brought to Book

  North-East Delhi is limping back to normalcy after three days of arson, loot, plunder, mayhem, monstrosity and murders. Humanity has again been disgraced in these riots, which were pre-planned. But apart from the inept and unprofessional handling of the situation by the police, the judiciary and the media have also brought deep despair and disappointment by their conduct. The media never made any efforts to bring about peace and harmony. It failed to mirror the factual things to dispel the doubts and tensions, which were/are created by the rouges and anti-national elements. Our television channels suffer from a chronic decease of holding debates by inviting such people who have closed minds and rigid opinions. No amount of logic can help them in changing their viewpoints. Thus, the viewers hardly get any information or clarity from these debates.
   What is most perplexing, however, was the attitude and action of the higher judiciary. Why did the High Court entertain the petition at midnight by those people, who were also known for stoking the fire? If at all, the High Court thought it fit to hear the case at midnight, it should have directed the Delhi Police to pull all socks to control the conflagration that was raging the North-East Delhi but it simply ordered to lodge the FIR against three leaders namely; Kapil Mishra, Anurag Thakur and Pravesh Singh Verma of the BJP. So much so, in its misplaced zeal, the High Court got the speeches of all three leaders screened in the courtroom, delivered during the Delhi assembly elections. In fact, these three leaders never made any inflammatory or incendiary speech during or before the city was engulfed in communal riots. The Election Commission had already punished and prevented them from electioneering for 48 hours to 72 hours. In those days the Police were under the control of the Election Commission. So, the observations of the High Court for the registration of the FIR now is totally erroneous, unjustified and uncalled for.
  Mr Kapil Mishra is blamed to have incited the people of the Hindu community on 23rd February, which he had made in the presence of the Deputy Commissioner of Police but that was no speech at all. It was merely a request to the police to clear the unruly crowd from the main road of the Jafrabad. These protesters were sitting at some other place for the last many days but on the eve of the visit of the American President, they were instigated by the AAP MLA and the Councillor of the area to move on the main road so as to cause inconvenience to millions of people. The court should have, in all fairness, ordered the arrest of those people who provoked the protestors to obstruct the traffic with the intent to malign the image of the country.
   More than 40 persons have lost their lives and properties of crores of rupees have been destroyed and reduced to ashes in the pogrom. Its genesis needs to be thoroughly investigated and guilty persons must be meted out exemplary punishment.
  Even before the Delhi High Court had taken this cognisance of this communal riots, the Supreme Court of India behaved in the funniest manner by appointing interlocutors to negotiate with Shaheen, Bagh protestors to persuade them to move to any other site. This interference of the Supreme Court did not cover it with any glory. The protest at Shaheen Bagh has been not been misconceived but highly mischievous, organised by the local AAP MLA and funded by the radicalised Jihadi group of Peoples’ Front of India.
  It must be noted that during the visits of the US Presidents to India, the ISI of Pakistan has been creating some unsavoury and tragic tamashas to sully the image of the country. It happened during the visits of Bill Clinton, Obama, and now it was planned to coincide with the visit of Donald Trump. The only difference between now and then is that during the visits of Bill Clinton and Barak Obama, it used to be enacted in Kashmir but this time it was not possible to do so in Kashmir because of the alertness of our security forces, so they made it in Delhi, where the Muslims have been used to queer the pitch of the growing influence of India in the world.

East India Company : Began in Commerce Ended in Empire

   The history of India during the Mughal and the British Rule had been the history of loot, plunder, rape, rapine, murder, mass killings, brutality and bestiality. It was more horrible during the British rule which, came with East India Company. Millions of people were allowed to die during the Bengal famine because there were no tangible efforts by the Britishers to save the lives of the people dying in droves at every passing minute. The loot and plunder of India can be known from the historical speech of Edmund Burke in the house of commons at the time of impeachment of Warren Hastings, who told that  'the Constitution of the Company(East India Company) began in commerce and ended in empire rather as one of its directors admitted, ‘An Empire within an Empire’. He said that the business of the company was ‘more like robbery than trade’. Such was the brutality of the Company officials that the tax collectors used to drag out ‘Bengali virgins naked and exposed them to the public view and scourged.’

 According to Lord Macaulay,’ the ladies in the gallery were unaccustomed to such display of eloquence that  they plunged into a state of uncontrollable emotions and handkerchiefs were pulled out; smelling bottles were handed around, hysterical sobs and screams were heard and  Mrs Sheridan was carried out in a fit. In what is considered as one the greatest feats of oratory Burke said that ‘Warren Hastings subverted all laws, rights and liberties of people of India, whose property he had destroyed and whose country he had laid waste.’

It is expected that loot was mind-boggling. It may not be out of place to mention here that one the very first Indian word to enter in the English language was ‘loot’. The four hundred pages book, ‘The Anarchy” of the historian William Dalrymple provides a vivid description of the pitiable condition of India of nearly two hundred years of British rule in India. It does not mean that native rulers were any good to the people This period saw the most unparalleled barbarities extortion and monopolies in The timidity, pusillanimity and cowardice of highly divided princely states and decaying and effete Mughal rule provided the good ground to the Britishers to rule over India. They adopted the policy of divide and rule and got remarkable success in their goal., There were certainly some sparks of bravery among the native rulers, but they were very negligible. Maratha confederacy and Tipu Sultan put up brave fights, but they proved highly inadequate to meet the ascending British power. It is a known fact that Aurangzeb, who died in 17071707 in Khuldabad in the middle of the Deccan platau., was unloved by his father because of his bigoted Islamic puritanism and intolerance towards others. He imposed notorious Jizya tax on Hindus and executed Teg Bahadur, the ninth Guru of the Sikhs. He dismissed brave and most ethical ruler Shiva ji as a ‘desert rat’. Shivaji, however, proved to be his nemesis. The biggest calamity was, however, brought on India by Nader Shah of Afshar, who was born in Persian Khorasan. He was the son of a humble shepherd and furrier. He rose to a great height in the Persian Army due to his remarkable military talent. In 1732 he seized the Persian Throne in the Military coup. He invaded the Mughal Delhi to loot and devastate with 80 thousand fighting men. The tyranny and the havoc that was brought upon the people by Nadir Shah is unprecedented and unheard of in the history anywhere in the world. Thus, the arrival of the East India Company in India and ultimately turning into the ruler is a classic example of ‘how the business was exploited by the company officials to rule the country’.

 There are certain facts which can serve as the eye-openers for the posterity. Murshid Quli Khan’s brutality, who was a Hindu convert to Islam, knew no bounds. According to a historian Dalrymple, he was the harshest tax collectors. He set up a capital which was named after him and is known as modern Murshidabad. He would order the zamindars to be stripped necked and doused with the cold waters and beat them with sticks. So much so, that he would make them drink their urine for defaulting in the payment of taxes. The description of the war of Plassey makes one filled with the hatred for the person like Mir Zafar, who later became the metaphor for the treachery. But this also shows the apathy and aloofness of the general public towards the native rulers because of their arrogance and exploitation.

The foundation of the British rule in India was laid by Robert Clive, who started his career as a clerk in the Company but rose to become the Commander of the Army by sheer dint of his alacrity and astuteness. He was able to establish his authority firstly in south India and then expanded it to the north. The British rule was further consolidated in the times of Warren Hastings, Charles Cornwallis and Richard Wellesley. It was Lord Wellesley, who had defeated Tipu Sultan in 1799. Although Tipu Sultan was an efficient and able ruler, he was intolerant towards Hindus. while he used his sword to defend his kingdom of Mysore on the one side but on the other side, he had killed lakhs of Hindus in south western Karnataka and Kerala. He was a megalomaniac There are, of course, some instances when he is said to have donated some money for the restoration of a temple at Srirangapatnam and also for running of the Gaushalas.

The Maratha rulers like Chhatrapati Shivaji had setup the examples of bravery, valour and benevolent rulers who could pounce on the enemies like, but he was very kind-hearted and ethical towards his subjects particularly towards women. Mahadji Scindia was also a remarkably a brave and good ruler but his enmity with Holkar rulers proved to be fatal for the Maratha rulers.

 ‘The Anarchy of ‘William Dalrymple is, without doubt, a gripping and fascinating book, which he has written after exhaustive research. A storyteller, that he is, has beautifully described the foils and foibles of the rulers, their debauchery and hunger for wealth and power. This shows the insensitivity of the rulers towards the public over which they ruled. Their internecine quarrels with other rulers and gross disrespects to the subjects were the main cause of the fall of the native rulers and the rise of the British rule in India. Although the Britishers sucked the wealth of India yet they can also be credited to have brought the semblance of law and order in the country, which absolutely did not exist before they established their rule in India.