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Civil Liberties Council represented by its Convener R.R. Dalavai and Ors. Vs. Government of Tamil Nadu represented by Commissioner and Secretary, Madras Legislative Assembly and Ors.

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  • Decided on : Sep-19-1994

LegalCrystal Citation :

Court : Chennai

Reported in : (1995)1MLJ59

Subject : Constitution

Decided On : Sep-19-1994

Appellant : Civil Liberties Council represented by its Convener R.R. Dalavai and Ors.

Respondent : Government of Tamil Nadu represented by Commissioner and Secretary, Madras Legislative Assembly and

Cases Referred :
Roy v. Union of India


Srinivasan, J.

1. These writ petitions are filed as public interest litigations. The prayer in the first of the writ petitions is to declare that the resolution passed by the Madras Legislative Assembly on 4.4.1987 is ultra vires of the Constitution, illegal and as such null and void. The prayer in the other two writ petitions is to declare that the order dated 29.3.1987 of the Speaker of the Tamilnadu Legislative Assembly as communicated by letter dated 31.3.1987 of the Commissioner and Secretary to the Assembly to Mr. S. Balasubramanian, Editor, Ananda Vikatan is unconstitutional and consequently the resolution dated 4.4.1987 of the Tamilnadu Legislative Assembly convicting and sentencing Mr. S. Balasubramanian as unconstitutional and void.

2. When the writ petitions were pending Mr. S. Balasubramanian himself had filed W.P. Nos. 4202 and 4203 of 1987 challenging the validity of the resolution of the Assembly as well as the order of the Speaker and praying for compensation for the flagrant violation of his fundamental right in imposing rigorous imprisonment for three months on such terms as this Court may deem fit.

3. When the matters came before a single Judge of this Court, the maintainability of the above writ petitions was challenged on the ground that the petitioners were only third parties and the affected party having himself filed writ petitions for getting the necessary reliefs these writ petitions are not maintainable at the instance of the third parties. Learned single Judge thought that the questions which arise for consideration in these writ petitions as well as the writ petitions filed by the affected party S. Balasubramanian are of considerable importance and they should be decided by a Bench or if necessary by a Full Bench and place the papers before the Chief Justice. The Chief Justice constituted this Full Bench to hear the matters.

4. The third question referred to by learned single Judge which arises in these writ petitions only reads as follows:

Whether the individuals viz., M/s. P. Ramamurthi P. Manickam, N.V.N. Somu and the first respondent could question the validity of the impugned proceedings and consequently whether the writ petitions filed by them are maintainable?

This question does not arise naturally in the writ petitions filed by Mr. S. Balasubramaniam. Hence, we heard the petitioners and the learned Advocate-General on this question in these writ petitions in the first instance as the learned Advocate-General raised the question as a preliminary objection to the maintainability of the writ petitions.

5. Learned Advocate-General refers to some passages in the judgment of the Supreme Court in S.P. Gupta v. Union of India : [1982]2SCR365 and points out that the Supreme Court has very clearly laid down that in matters which affect individuals or a definite group of persons etc., the affected persons can alone seek relief in the court of law and not third parties. The relevant passages relied on by learned Advocate-General are as follows:

The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born.

But it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him..

It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District who are living in poverty and destitution who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have any access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be a hand-maiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process: the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated, but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief. It is in this spirit that the court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this proactive, goal-oriented approach. But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in court. We may also point out that as a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases.

[Underlining is ours].

If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or in a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs.

[Underlining is ours].

So far as O.N. Vohra is concerned, it is apparent that though he was joined as a party respondent to the writ petition filed by V.M. Tarkunde, he did not choose to appear and take part in the proceedings. He did not even file an appearance, presumably because he was not interested in wresting back the office of an additional Judge through a judicial writ..

But the persons for whom the relief is sought must be ready to accept it: they must appear and make it known that they are claiming such relief; it cannot be thrust upon them unless they wish it. If, in the present case, O.N. Vohra, does not seek to go back as an additional judge through judicial intervention the petitioners cannot contend that he must still be continued as an additional Judge irrespective of his inclination. The relief sought by the petitioners being primarily for the benefit of O.N. Vohra, it is for O.N. Vohra to decide whether he would have it and if he does not want it, it would be a fruitless exercise for the court to determine whether the decision not to appoint him as an additional Judge was unconstitutional and he should have been appointed as an additional Judge for a further term. The court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The court cannot take upon itself the role of a commission of inquiry-a knight errant roaming at will with a view to destroying evil wherever it is found. It was for this reason that we held that the correspondence exchanged between the Law Minister, the Chief Justice of India in regard to non-appointment of O.N. Vohra was not relevant to the issues arising for determination in the writ petition and the Union of India could not be required to disclose it.

The passages underlined by us bring out the crux of the matter. It is seen that the court has taken care to define a private injury and a public injury. As pointed out in the passage underlined by us, if the public authority or the State exceeds its power and causes a specific legal injury to a person or a particular class or group of persons, it would be a case of private injury actionable only at the instance of the injured persons, it cannot be treated as a public injury for which relief can be sought by third parties.

6. In the present case, there can be no doubt whatever that it is a private injury inasmuch as the action taken by the respondent is directed only against a particular individual viz., S. Balasubramanian.

7. Moreover, in the present case he is now a free agent and he has himself approached the court with petitions for appropriate relief. In these circumstances, it is not possible for us to accept the contention of learned Counsel for the petitioners that they have the locus standi to maintain the writ petitions and pray for the reliefs set out in the writ petitions.

8. Learned counsel appearing for the petitioners in W.P. Nos. 4200 and 4201 of 1987 refers to the judgment of the Supreme Court in Sheila Barse v. Union of India : AIR1988SC2211 . That is a case in which the petitioner brought to highlight the gross violation of the constitutional and statutory rights of a large number of children in the country who are suffering from custodial restraints in various parts of the country and for the protection and for enforcement of their rights. The petitioners wanted to withdraw their petition on the ground that there was inordinate delay on the part of the court in disposing of the petition and granting appropriate reliefs. The court considered the question whether a public interest litigation could be withdrawn by the individual who initiated the same. The court pointed out that even if the particular individual withdraws from the case, the case will have to be considered by the court and it is not a matter of choice for the particular individual to withdraw the case. If the grievance which has to be considered by the court is a public grievance, it has to be decided by the court and proper action should be taken. It was on that basis the court said:

The grievance is that the final disposal of the main petition was not expeditiously done. In a public interest litigation, unlike traditional dispute-resolution-mechanism there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party structure is merely bi-polar and the controversy pertains to the determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the proceedings cut across and transcend these traditional forms and inhibitions. The compulsions for the judicial innovation of the technique of a public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a Welfare State. Effective solutions to the problems peculiar to this transformation are not available in the traditional judicial system. The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert-and quite often not even aware of-those rights. The technique of public interest litigation serves to provide an effective remedy to enforce these group-rights and interests. In order that these public-causes brought before the courts, the procedural techniques judicially innovated specially for the public interest action recognizes the concomitant need to lower the locus standi thresholds so as to enable public-minded citizens or social-action -- groups to act as conduits between these classes of persons of inherence (sic.) and the forum for the assertion and enforcement of their rights. The dispute is not comparable to one between private parties with the result there is no recognition of the status of a dominus-litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the court. The 'rights' of those who bring the action on behalf of the others must necessarily be subordinate to the ''interests'' of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of governmental action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of governmental policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or re-adjusted as the case may be, ad hoc, according to the exigencies of the emerging situations. The proceedings do not partake of pre-determined private law litigation models but are exogeneously determined by variations of the theme.

9. The observations contained in the above passage do not have any bearing in the present case. Learned counsel drew our attention to a decision of the Supreme Court in Sub-Committee of Judicial Accountability v. Union of India : AIR1992SC320 . The relevant contention was that the Supreme Court Bar Association and the Sub-Committee of Judicial Accountability, who were the petitioners in the writ petitions did not have the requisite standing to sue and the writ petitions were not maintainable at their instance. Repelling that contention the Supreme Court said:

This pertains to the locus standi of 'Sub-Committee on the Judicial Accountability and the Supreme Court Bar Association to maintain the proceedings. If this is true, then the petitioners in Transfer Petition No. 278 of 1991 and other writ petitions challenging the Speaker's decision would not also have the necessary standing to sue. The law as to standing to sue in public interest actions has undergone a vast change over the years and liberal standards for determining locus standi are now recognised. The matter has come to be discussed at considerable care and length in S.P. Gupta v. Union of India : [1982]2SCR365 . The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly the Supreme Court Bar Association have no locus standi in the matter. An elaborate re-survey of the principles and precedents over again is unnecessary. Suffice it to say that from any point of view the petitioners satisfy the legal requirements of the standing to sue. We, therefore, reject the contention 'H'..

While the members of the Bar may claim to act in public interest they have at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpitude, the Judge does not suffer irreparably in the very process. The approach should not incur the criticism that it was calculated to expose an able and courteous judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so. We wish the level of the debate both in and outside the court was more decorous and dignified. Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.

10. The above ruling does not help the petitioners in this case to establish the locus standi in view of the facts already stated.

11. Learned counsel placed reliance on the judgment in Dr. Kashinath v. The Speaker and Ors. : [1993]2SCR820 . The question that was considered related only to laches in filing the writ petitions. In that case there was no question of absence of locus standi in the petitioners who filed those petitions. Hence, the observations contained in the judgment relied on by learned Counsel for the petitioners will not help the petitioners to contend that their petitions are maintainable.

12. Learned counsel submitted that in A.K Roy v. Union of India, : 1982CriLJ340 , though the party affected had filed a writ petition, the other persons were also permitted to intervene in the writ petition on the ground that the ordinance making power of the President was destructive of the system of Parliamentary democracy and, therefore, it was necessary to define the scope of the power. On that reason the Supreme Court allowed the intervention of such parties. But this is a case in which no public injury is involved. As pointed out already, it is purely a case of private injury for which redress is already sought by the person concerned in this Court in two petitions In these, circumstances, there is no question of allowing any third party to file a public interest litigation.

13. Learned counsel contended that the question raised by the petitioners in the writ petitions is that the Legislature has no power to punish the person concerned for fair criticism. According to her, the publication of cartoon made by the said person is only fair criticism and it is not violation of privilege of the Legislature. That is a matter which has to be considered on the facts of the case. That question cannot be raised by the petitioners herein. It is not as if the Legislature has no power at all to punish a person for breach of privilege. It is not the contention of the petitioners also that the Legislature has no privilege or that it cannot punish anybody for breach of such privilege. The only question raised by the petitioner is that in this case there is no breach of privilege and, therefore, the person concerned should not have been punished. That plea is not available to the petitioners who are only third parties.

14. It is also contended that the freedom of press is violated by the action of the Legislature and the petitioners are, therefore, entitled to question the same. Whether the freedom of press is violated is a matter to be decided on the facts and that will not give rise to a cause of action for the petitioners. The court cannot be invited to decide the question as an academic one. Each case has to be decided on the facts and circumstances thereof. Whether in this case there is violation of the freedom of press or violation of Article 21 of the Constitution of India are matters to be decided in the writ petitions filed by the person concerned viz., S. Balasubramanian. The petitioners cannot raise those questions for the avowed purpose of safeguarding the future interest of the citizens of the country in general and the Press in particular.

15. In the result, we are of the view that these writ petitions are not maintainable because the petitioners are third parties who have no locus standi. We answer question No. 3 referred to us in the negative. Hence the writ petitions are dismissed. There will be no order as to costs.

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