Bhawna*
“If I was asked to name any particular
Article in this Constitution as the most important – an article without which
this Constitution would be a nullity- I could not refer to any other Article except
this one (Article 32)……………… It is the very soul of the Constitution and the
very heart of it,” Dr. B.R. Ambedkar
The
above stated lines are true and well said by Dr. B.R. Ambedkar. Article 32
deals with the remedies for enforcement of rights conferred by Part III. It is
indeed the heart and soul of the Indian Constitution. This article is the
remedy for all the long list of fundamental rights contained in the Part III of
the Constitution. It is said that if there is no remedy, there is no right at all.
It is obvious that to make the rights enforced, an effective remedy is to be
there, so that one can seek for justice when either of the rights gets
violated. Therefore, this was the main reason for the incorporation of Article
32 to safeguard and to enforce the Fundamental Rights given.
Article
32 mainly talks about the remedies for enforcement of rights conferred by this
part. ‘This Part’ in this context
means Part III of the Indian Context. The clauses of the Article 32 are as
written below:
●
Article 32(1) guarantees the right to
move the Supreme Court by appropriate proceedings for the enforcement of the
fundamental rights conferred by Part III of the Indian Constitution.
●
Clause (2) of the
Article 32 confers power on the Supreme Court to issue appropriate
directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-
warranto and certiorari for the enforcement of any of the fundamental
rights mentioned in the Part III of the Constitution.
●
Under Clause (3) of Article
32, Parliament may by law empower any other court to exercise within
the local limits of its jurisdiction all or of the powers exercisable by the
Supreme Court under Article 32(2).
●
Clause (4) says that the right
guaranteed by Article 32 shall not be suspended except as otherwise provided
for the Constitution.
It
is to be noted that Article 32 is a way for providing an expeditious and
inexpensive remedy for the protection of the fundamental rights. Apart from
this, Article 226 also empowers all the High Courts to issue writs for the
enforcement of fundamental rights.
Now
the main question comes here is who can file a writ petition under Article 32
of the Indian Constitution? In other words who has the Locus Standi to file the writ petition to enforce the fundamental
rights as provided in Part III?
Locus Standi is a Latin word which
literally means ‘place to stand’. In law, it is the right to bring an action. Locus Standi can be understood as the
legal capacity to sue or approach courts. In any legal process, the existence
of Locus Standi is necessary. One has
to prove under which capacity he has approached the court and what relief he
expects from the court in such matter.
The
right to move to the Supreme Court can only be exercised for the enforcement of
fundamental rights. The writ under which the remedy is asked under Article 32
must be correlated to one of the fundamental rights sought to be enforced. A
writ petition can be filed by any person whose fundamental right has been
infringed by the State. It is to be
noted that the right must be infringed by the State, but let us understand what
all are included in the term State and against which authorities a writ can be
filed.
The
term State
has been defined under the Article 12
of the Indian Constitution.
Article 12 basically talks about what all are included in the term ‘State’. The
definition of the State includes:
●
Government of India,
●
Parliament of India,
●
Government of each of the States,
●
Legislature of each of the States,
●
All local authorities within the territory of
India,
●
All other authorities within the territory of
India,
●
All local authorities under the control of
Government of India,
●
Other authorities under the control of the Government of India.
The
term ‘State’ includes both the legislative and executive organs of the Union
and States.
Authorities: Under article 12, the word
‘authority’ means power to make laws, orders, regulations, bye-laws,
notifications and any such instruction which have the force of law and power to
enforce those laws.
Local Authorities: In the context of Article 12,
local authority includes Municipal Boards, Panchayats, Improvement Trust and
Mining Settlement Boards and others who are legally entitled to or entrusted by
the government, municipal or local fund.
Other Authorities: The term ‘other authorities’ is
neither defined in the Constitution of India, 1950 nor in the General Clauses
Act, 1897. But the scope of the ‘other authorities’ has been explained in the
various judgments cited by either the judges of State High Courts or Supreme
Court of India.
In
University
of Madras v. Shantabai,[1] the Madras High Court held that
‘other authorities’ could only indicate authorities of a like nature/same kind,
i.e. ejusdem generis. So construed,
it could only mean authorities exercising governmental or sovereign functions.
It could not include persons, natural or juristic, such as, a University unless
‘maintained by the State’.
But Ujjammbai
v. State of U.P.[2], the
Supreme Court rejected this restrictive interpretation of the expression ‘other
authorities’ given by the Madras High Court and held that the ejusdem generis rule could not be
resorted to in interpreting this expression. In Article 12 the bodies
specifically named are the Government of the Union and the States, the
Legislature of the Union and the States and local authorities. There is no
common genus running through these named bodies nor can these bodies be placed
in one single category on any rational basis. This case to some extent declined
the rule/principle of ejusdem generis.
In
Electricity
Board, Rajasthan v. Mohan Lal,[3] The
Supreme Court held the expression ‘other authorities’ is wide enough to include
all authorities created by the Constitution or statute on which powers are
conferred by law. It is not necessary that the statutory authority should be
engaged in performing governmental or sovereign function. On this
interpretation the expression ‘other authorities’ will include Rajasthan
Electricity Board.
With
the changing role of the state from merely being a State to a welfare State, it
was necessary to broaden the scope of the expression ‘authorities’ in Article
12 so as to include all those bodies which were in general were not created by
either the Constitution of India or Statute but were acting as agencies or
instrumentalities of the Government.
Thus,
in the case of Ramana Dayaram Shetty v. The International Airport Authority of India,[4] It
was held by the Supreme Court that if a body is an agency or instrumentality of
government it may be an authority within the meaning of Article 12 whether it
is a statutory corporation, a government company or even a registered society.
In
the aforesaid case, the court laid down the following tests for determining
whether a body is an agency or instrumentality of the government:-
1.
Financial resources of the state is the chief
funding source i.e. the entire share capital of the corporation is held by the
government,
2.
Existence of deep and pervasive State control,
3.
Functional character being governmental in
essence, i.e., the functions of the corporation are of public importance and
closely related to governmental functions,
4.
A dept. of government is transferred to a
corporation,
5.
Whether the corporation enjoys monopoly status which is State conferred or State
protected.
However, the Court held these tests not conclusive but
illustrative only and would have to be used with care and caution.
S.R.M. University Madras was declared ‘Deemed University’ by the Central Government
under Section 3 of the UGC Act, but the Management, which was in private trust,
was held to be an authority provided under Article 12 of the Constitution and
amenable to the writ jurisdiction in the case of Janet Jeyapaul (Dr.) v. SRM
University[5]. It
was held because of the following reasons:-
1.
It imparted education in higher studies to the
students at large.
2.
It discharged public functions by way of
imparting education.
3.
It was notified as a deemed university under
Section 3 of the UGC Act.
4.
Being a deemed university by the Central
Government under Section 3 of the UGC Act, all the provisions of the UGC Act
were made applicable to it which, inter
alia, provided for effective discharge of public function, namely,
education for
the benefit of the public.
5.
Once it was declared as ‘deemed university’
whose all functions and activities were governed by the UGC Act, like other
universities, it was ‘other authority’ within the meaning of Article 12 of the
Constitution.
6.
Once it was held to be an authority as provided
in Article 12 then as a necessary consequence, it was amenable to writ
jurisdiction of
the High Court under Article 226 of the Constitution.
Likewise, the following also come under ambit of Article 12 of Indian
Constitution, and are covered under the definition of the ‘State’.
●
Sainik School Society is a ‘State’ within the
meaning of Article 12[6].
●
The State Bank of India as also the nationalized
banks are ‘States’ within the meaning of Article 12. It is to be mentioned here
that their actions must satisfy the tests of Articles 14 and 21 of
the Constitution.[7]
●
An aided school which received a Government
grant of 90% was an ‘authority’ within the meaning of Article 12.[8]
●
Similarly, it has been held in various cases
that Food Corporation of India (FCI)[9], the
Steel Authority of India[10]and
Indian Oil Corporation[11]
are the ‘State’ within the meaning of ‘other authorities’ under Article 12 as
they are instrumentalities of the State.
Apart
from the above discussions, another question which came into light was whether Judiciary was included in the word
“State”?
The 7 Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak[12] has
held that the court cannot pass an order or issue a direction which would be
violative of fundamental rights of citizens, it can be said that the expression
‘State’ as defined in Article 12 of the Constitution includes judiciary also.
Now
it has been cleared from the above stated case laws that what comes under the
ambit of the ‘State’. Coming back to the discussion, it can be said that any
infringement of any of the fundamental rights by the authorities or organs
coming under the definition of the ‘State’ can be challenged in the Supreme
Court and High Court under Article 32 and Article 226 respectively.
Therefore,
any person whose any of the fundamental right has been violated by the ‘State’
has the locus standi to present the
writ petition in the Supreme Court and High Court as well.
Generally,
the basic rule of the locus standi is
that any person whose Fundamental Right has been infringed can only present the
writ petition for the same. But the ambit of locus standi has been relaxed by the Supreme Court. Basically the
idea of PIL has been borrowed from the American Jurisprudence and was
introduced in India by Justice P.N. Bhagwati and Justice Krishna Iyer.
After
the introduction of PIL, the cases which dealt with the matters of public
interest were permitted by the Supreme Court. This means that every person who
is not directly affected or involved in the case can bring the petition if the
same is affecting the public at large. The court now permits litigations for
the enforcement of Constitutional and other legal rights of the persons who are
not able to approach the court of law either because of poverty, weak economic
conditions or socially disadvantaged position in the society.
Though
PIL has not been defined in any act or statute but from time to time the
definition and scope of the PIL has been defined in various judgments by the
Courts of Law. The first case which was reported as PIL was in the year 1979
namely
S.P.
Gupta and others v. President of India and others[13],
also known as Judges Transfer Case.
The controversy of whether a person who is not directly involved can move to
the Court for redressal of grievances of persons who cannot approach the court
because of poverty or any other reasons was put to an end through this case. It
was held by the seven judge constitutional bench of the Supreme Court that any
member of the public having ‘sufficient interest’ can approach the Court for
enforcing constitutional/ legal rights of such persons or groups of persons
even through a letter.
It was after this case, that the concept of PIL became a powerful tool for the
general public to get the public duties and rights enforced in the favour of
the public interest.
Public
Interest Litigation has always aimed at providing the access of justice to the
common people. The person who is filing the PIL must be an Indian citizen and
his only motive behind filing such PIL should be in the interest of the public
and should not be for his individual motive. It is to be noted that such action
should be bona fide and without any
influence or pressure.
With the increase in the cases regarding the matters dealing
with the grievances of the public, the scope of the PIL also extended. Now the
scope of PIL includes:
●
Child abuse and child labour,
●
Cases of neglected children,
●
Atrocities against women, rape cases, murder, kidnapping,
●
Refusal to pay minimum wages to workmen,
●
Prosecution of the socially and economically backward
sections of the society especially children and women,
● Food adulteration
●
Cases relating to environmental protection
Any person who has filed the PIL in the Supreme Court
regarding the above stated issues and any such similar matter, has the locus standi to present the case and the
same cannot be rejected by the Court if the matter is concerned with the issue
involving public at large. Approaching the court through PIL should not be for
any personal gain, private profit or political motivation. The person filing
the PIL must satisfy the court that the petition has been filed for the public
interest. The burden of proof completely lies on the petitioner.
A
PIL can be filed only against the bodies that are covered under the ambit of
State under Article 12 of the Constitution and not against any private party.
However, ‘private party’ can be included in the PIL as ‘Respondent’, after
making concerned State authority a party. But, a PIL cannot be filed against
the private party alone.
Public
Interest Litigation has proved to be a boon especially for the people who
weren’t able to approach the court for justice due to poverty, weak economic
conditions, or any other disability. With the broadening scope of the locus standi in PIL, the abuse of the
PIL also gets broadened.
In
this regard, Lordship Bhagwati had
also expressed a note of caution. He was very well aware of this liberal rule
of locus standi might be misused by vested interests. He made it very clear
that in that case, court will not allow the remedy to be abused.
It is to be seen that many of the activists have found the PIL as a handy tool
of harassment since frivolous cases could be filed without heavy investment of
heavy court fees as required in private civil litigation. At present, the court
can treat a letter a letter or telegram as a writ petition and take action upon
it. But, not every letter or telegram can be treated as a writ petition/ PIL by
the court.
In
Simranjit
Singh Mann v. Union of India[14], the
question was whether a third party who is a total stranger to the prosecution
culminating in the conviction of the accused have any locus standi to challenge the conviction and sentence awarded to
the convicts through the public interest litigation. The court held that the
petitioners had no ‘locus standi’ to
file petition being total stranger to the prosecution and more than that they
were not even authorized by the convicts.
In
the case State of Uttaranchal v. Balwant Singh Chaufal[15],
the Supreme Court in order to preserve the purity and sanctity of the PIL, the
court laid down important guidelines for checking its misuse. The court issued
the following directions:
● The Court must encourage genuine and
bona fide PIL and effectively discourage and curb PIL filed for extraneous
considerations.
● Instead of every individual judge
devising his own procedure of dealing with the PIL it would be appropriate for
each High Court to properly formulate rules for encouraging the genuine PIL and
discouraging PIL filed for oblique motives. The High Courts who have not yet
framed rules should frame rules within three months. The Registrar General of
each High Court must ensure that a copy of the Rules prepared by the High Court
is sent to the Secretary General of the Supreme Court immediately thereafter.
● The Courts should prima facie verify
the credentials of the petitioner before entertaining a PIL.
● The Court should be prima facie
satisfied regarding the correctness of the contents of the petition before
entertaining a PIL
● The Court should be fully satisfied
that substantial public interest is involved before entertaining the petition.
● The Court should ensure that the
petition involves larger public interest, gravity and must be given priority
over other petitions.
● The Court before entertaining a PIL.
is aimed at redressal of genuine public terms of public injury. The Court
should also ensure that there is no personal gain, private motive or oblique
motive behind filing the PIL.
● The Court should also ensure that the petition
filed by busy body for extraneous and ulterior motives must be discouraged by
imposing exemplary costs or by adopting similar novel methods to curb frivolous
petitions filed for extraneous considerations.
Some
important cases relating to PIL in India:
●
Vishaka v. State of Rajasthan,[16] this case played an important in the
commencement and enactment of the Sexual
Harassment at Workplace Act, 2003. Exhaustive guidelines for preventing
sexual harassment of working women at the place of their work were laid down in
this case. The Court held that it is the duty of the employer or other
responsible person in work place and other institutions to prevent the sexual
harassment against the women.
●
In Bihar, number of prisoners were kept in
various jails for past many years without trial so, through the case of Hussainara
Khatoon v. State of Bihar,[17]
the court ordered that all such prisoners whose names were
submitted to the Court should be released forthwith. In addition to this, the
Supreme Court held that speedy trial is an essential
and integral part of the fundamental rights to life and liberty enshrined in
Article 21.
●
In the case of M.C Mehta v. Union of India[18],
Supreme Court held that petitioner although not a riparian owner is entitled to
move the court for the enforcement of statutory provisions, as he is the person
interested in protecting the lives of the people who make use of Ganga water.
●
Rural Litigation and Entitlement Kendra v.
State of Uttar Pradesh[19], this was the first
PIL filed for the Protection of Ecology and Environment Pollution. In this
case, the court ordered the closure of certain limestone quarries on the ground
that there were serious deficiencies regarding safety and hazards in them.
●
In the case of Parmanand Katara v. Union of
India[20],
the Supreme Court has held that it is paramount obligation of every member of
medical profession (Private or Government) to give medical aid to every injured
citizen brought for treatment immediately without for procedural formalities to
be completed in order to avoid negligent death.
Conclusion: To conclude, locus standi can be understood as the right of the party to appear in
the court, institute a suit or take an action against the wrong or infringement
of any of the fundamental rights or legal rights. If any person is having the locus to present his case, then his
grievance is to be heard by the Courts of law. The right of Locus Standi can be given to any member
of the public acting bonafide and having sufficient interest in instituting an
action for redressal of public wrong or public injury. Any person who has
approached under Article 32 and 226 to Supreme Court or High Court respectively
has the Locus Standi to present his
case. Through the introduction of PIL the scope of Locus Standi was expanded. Some Public
Interest Litigations also lead to the landmark judgments that changed the
conditions of the members of the society. Some of them even lead to the
introduction of amendments in the existing statutes and formulation of new laws.
* Student of Final year B.A.LL.B. Punjabi University , Patiala
[1] AIR 1954 Mad. 67
[2] AIR 1962 SC 1621
[3] AIR 1967 SC 1857
[4] AIR 1979 SC 1628
[5] AIR 2016 SC 73 at p.79.
[6] AISSE Association v. Sainik
Schools Society AIR 1989 SC 88
[7] Bank of India v. O.P.
Swarnakar (2003)2 SCC 721
[8] Manmohan Singh Jaitla v.
Commissioner, U.T. of Chandigarh (1984) Supp. SCC 540
[9] Workmen, FCI v. M/s. FCI, AIR
1985 SC 670
[10] Bihar State Harijan Kalyan
Parishad v. UOI, (1985) 2 SCC 644
[11] Mahabir Auto Stores v. Indian
Oil Corp., (1990) 3 SCC 752
[12] AIR 1988 SC 1531
[13] AIR 1982 SC 149
[14] (1992) 4 SCC 653
[15] AIR 2010 SC 2551
[16] AIR 1997 SC 3011
[17] AIR 1979 SC 1369
[18] (1987) 4 SCC 463
[19] (1985) 2 SCC 431
[20] AIR 1989 SC 2039
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