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The Centre for Action of Law Rep. by Its Secretary Vs. the State of Tamil Nadu Rep. by the Secretary, Home Dept. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ414
AppellantThe Centre for Action of Law Rep. by Its Secretary
RespondentThe State of Tamil Nadu Rep. by the Secretary, Home Dept. and ors.
Cases ReferredIn Sunil Batra v. The Delhi Administration
Excerpt:
- .....of objection regarding maintainability. the prayer in the writ petition is for the issue of a writ of mandamus, directing respondents 1 and 2 to implement the mandate as laid down by the supreme court in s u n i l batra v. the delhi administration : 1978crilj1741 , and prem shankar shukla v. the delhi administration : 1980crilj930 .2. v. ramaswami, j., who heard the matter on the question of maintainability, held by order dated 1-9-1982 that the writ petition, as it stands laid, is not maintainable. the reasoning of the learned judge has been expressed as follows:the law laid down by the supreme court is the law of the land and there is no need for this court to again state that the mandate laid down by the supreme court in the two decisions stated above, has to be implemented. the.....
Judgment:

S. Nainar Sundaram, J.

1. The appellant in this writ appeal is the Centre for Action of Law, represented by its Secretary. The appellant preferred a writ petition, which did not pass the stage of objection regarding maintainability. The prayer in the writ petition is for the issue of a writ of mandamus, directing respondents 1 and 2 to implement the mandate as laid down by the Supreme Court in S u n i l Batra v. The Delhi Administration : 1978CriLJ1741 , and Prem Shankar Shukla v. The Delhi Administration : 1980CriLJ930 .

2. V. Ramaswami, J., who heard the matter on the question of maintainability, held by order dated 1-9-1982 that the Writ petition, as it stands laid, is not maintainable. The reasoning of the learned Judge has been expressed as follows:

The law laid down by the Supreme Court is the law of the land and there is no need for this Court to again state that the mandate laid down by the Supreme Court in the two decisions stated above, has to be implemented. The petitioner can have a grievance if at all only if any particular mandate was not given effect to and it was demanded. Especially when this petition is for issue of a writ of mandamus, a demand should have been made with regard to any particular matter and if the State Government had not complied with it, then it should have been pointed out to the State Government that as per the judgments of the Supreme Court, the State Government had not provided or did something and then only the affected person should have come to this Court. The general directive such as the one prayed for is unnecessary and this Court cannot be party to a futile order which will he of no effect since the judgments of the Supreme Court will have much more binding effect than any further directive by this Court to give effect to the same The writ petition is, therefore, not maintainable.

This writ appeal is directed against the order of the learned Judge.

3. Mr. K.V. Sankaran, learned Counsel appearing for the petitioner relying on the pronouncement of the Supreme Court in People's Union for Democratic Rights v. Union of India : AIR1982SC1473b , would submit that public interest litigation is a strategic arm of the legal aid movement and is intended to bring justice within the reach of the poor masses who constitute the lower visibility area of humanity and it can definitely be countenanced by this Court at the instance of the petitioner and wants this Court to entertain the writ petition as it stands laid. The learned single Judge has not discountenanced, and we are also not discountenancing at this stage, the prayer put forth by the petitioner on the ground that the petitioner by itself has no legal right to insist on the performance of any legal duty cast upon the respondents. Normally, one of the conditions precedent for the issuance of a writ of mandamus is that the legal right to compel performance of the legal duty must reside in the applicant himself, either solely or in common with others and it will not do to show merely that the applicant has an interest in the performance of the duty, and the applicant must show that he himself has a legal right to insist on such performance. This principle appears to have been widened and now Courts can be enjoined to countenance the problems of the affected and the unfortunate poor masses of the society through public interest litigation. But, as we stated above, the rejection of the writ petition is not founded on the ground that the petitioner is not one personally affected in any of its legal rights to seek the performance of a legal duty by one against whom it is sought. We do not also propose to do so.

4. The general rule is that a writ of mandamus will not issue unless the party against whom an accusation of non-compliance with a legal duty or a public duty is levelled has been put on notice of the violation complained of and he was required and demanded to comply with the same so that he could have the means of considering as to whether or not there is a violation and if so there is a warrant for compliance. It must be shown by concrete evidence that there was a distinct and specific demand for performance of any legal or public duty cast upon the said party and that party declined to comply with the demand. If a citation is required, we can refer to the pronouncement of the Supreme Court in S.I. Syndicate Ltd. v. Union of India : [1975]1SCR956 . The demand for compliance must have been made anterior to the application.

5. In Prem Shankar v. Delhi Administration : 1980CriLJ930 , the mandate with regard to freedom from handcuffs of prisoners in transit between prison house and Court house has been laid down in the following terms:

We clearly declare-and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and jail warder that the rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraint with irons, to be justified before or after., We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other 'irons' treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment.

6. In Sunil Batra v. The Delhi Administration : 1978CriLJ1741 , there were as many as six mandates given and further four quasi mandates were also spelt with regard to prisoners and their treatment. We do not feel obliged to delineate them in this judgment. Suffice it to point out that the Supreme Court directed a copy of the judgment to be sent for suitable action to the Ministry of Home Affairs and to all the State Governments since prison justice has pervasive relevance.

7. Before us, Mr. K.V. Sankaran, learned Counsel appearing for the petitioner, submits that most of the mandates laid down by the Supreme Court in the above decisions have not been adhered to and they stand violated. The law of the land as declared by the Supreme Court, shall be implemented by all concerned. But, then the question is as to how far this Court should take countenance of a general prayer for implementation of the mandates laid down by the Supreme Court in the above decisions by the issuance of a writ of mandamus. It is for the party concerned to demand all or any of the respondents to comply with the mandates of the Supreme Court pointing Out instances of breach so that the respondents or such of the respondents may have an opportunity to consider the aspect of compliance and only if there is a clear indication that the respondents or any of the respondents/are/is determined not to comply with what is demanded, there will be a justification for the issue of a writ of mandamus. It cannot be stated that the demand would be an idle and a futile ceremony and formality. We cannot presume that the respondents have distinctly determined not to comply with the mandates of the Supreme Court. If specific instances of breaches are brought to their notice and a demand is made for compliance, they may hasten to comply with the same and only when there is a clear indication that the respondents have no inclination and have determined not to comply with the mandates and have made known their disinclination and refusal to comply with such mandates, there will be a warrant for the issue of a writ of mandamus. As pointed out by the learned single Judge, it will be a futile process to countenance such a general prayer. Unless there has been a specific demand for compliance and specific denial with regard to specific breaches, this Court shall no issue a general directive, which is redundant as the mandates are already laid down by the decisions of the Supreme Court. In this view, we have to concur with the learned single Judge and accordingly, this writ appeal fails and the same is dismissed.


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