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INTRODUCTION It is true that the solution suggested is unusual, but unusual situations which pervert the judicial system

require unusual and unorthodox remedies. Eminent jurist H.M. Seervai in his book, Constitutional Law of India A Seven-Judge Bench of the Supreme Court was deliberating for four and a half months on what popularly came to be known as the Judges' transfer case. Described during the course of arguments as the second most important case to come before the Supreme Court (the first being the Fundamental Rights case), it was, in true sense, a case of public interest litigation. Eminent lawyers from many parts of the country devoted their time and energies to it. It was one of the great historic cases to be argued before the Supreme Court. Indias higher judiciary is possibly the most powerful national judiciary in the world. Internationally respected for its inventive creativity, it is beset with problems. To deal with the problem of corruption in the higher judiciary, the weapon of transferring judges from one High Court to another as a disciplinary measure is back in vogue. The judiciary under the leadership of Justice P.N.Bhagwati surrendered the primacy of Supreme Court in the matter of appointment of judges and their transfers, to the Executive. Thereafter, the judges were at the beck and call of the Central Government, in the matter of appointment and transfer leading to loading of courts with pro-government people. Compliant judges were rewarded with good postings and post-retirement engagements. Defiant judges were punished with transfers. The Supreme Court resumed its power in a later case after almost a decade though. Delivering its verdict in this case, popularly known as the Judges Transfer Case 1, the court observed that the public needed judicial safeguards against infringement of their rights at a time the state was expanding its reach through development activities. Public interest litigations fitted this bill. The Apex court also noted that public interest law suits were necessary to keep the state on its toes, especially in performing its duties towards citizens. The Supreme Court bench then went on to elaborate the distinction between Public interest litigations and traditional lawsuits. It said: if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury... the failure to perform such public duty would go unchecked and it would promote disrespect to the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make new social collective rights...created for the benefit of the deprived sections...meaningless. The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., and the ideal of Public Interest Litigation was blossomed in the judges transfer case2.

VARIOUS ISSUES INVOLVED IN THE CASE


1 2

S. P. Gupta v Union of India A.I.R. 1982 S.C. 149 S. P. Gupta v Union of India A.I.R. 1982 S.C. 149

The first writ petition was that filed by Iqbal Chagla and others in the High Court of Bombay. The petitioners in that writ petition were advocates practising in the High Court of Bombay and they had challenged a circular letter dated 18th March, 1981, addressed by Shri Shiv Shankar, the Law Minister of the Government of India, to the Governor of Punjab and the Chief Ministers of the other States. The second writ petition was that filed by V.M. Tarkunde in the High Court of Delhi. The petitioner in that writ petition is a senior advocate practising in the Supreme Court and he has not only challenged the constitutional validity of the circular letter issued by the Law Minister but also assailed the practice followed by the Central Govt. in appointing additional Judges in various High Courts. The grounds on which the constitutional validity of the circular letter is challenged were the same as those taken in the first petition filed by Iqbal Chagla and others, but, so far as the complaint in respect of appointment of additional Judges is concerned, this writ petition covers new ground not treaded by the first writ petition. What made it necessary to include this complaint in the writ petition was the fact that three additional Judges of Delhi High Court, namely, O.N. Vohra, S.N. Kumar and S.B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from 7th March 1979, and whose term was expiring on the midnight of 6th March 1981 were further appointed as additional Judges for a period of three months only from 7th March 1981 and these short-term appointments were, according to the petitioner, unjustified by the terms of Article 224 and were in any event subversive of the independence of the judiciary. The petitioner therefore claimed in the writ petition, in addition to the declaration that the circular letter was unconstitutional and void, a writ of mandamus directing the Central Government to convert the posts of additional Judges into permanent Judges in the various High Courts commensurate with the regular business and the arrears in those High Courts and in particular to convert 12 posts of additional Judges in the Delhi High Court into permanent posts having regard to the regular business and the large arrears in that High Court. The petitioner also questioned the validity of short-term appointments of O.N. Vohra, S.N. Kumar and S.B. Wad and claimed that since there was an existing vacancy in a permanent post, O.N. Vohra should be appointed as a permanent Judge to fill that vacancy and so far as S.N. Kumar and S.B. Wad were concerned, they should be appointed for the full term of two years. The third writ petition was that filed by J.L. Kalra and others in the High Court of Delhi. The petitioners in that writ petition were advocates practising in the Delhi High Court and they have prayed for the issue of a writ in the nature of mandamus directing the Central Government to make an assessment of the number of permanent and additional Judges required by the Delhi High Court having regard to its current business and the accumulated arrears, to create such number of posts of permanent and additional Judges as may be necessary and to make appointments to these posts. The fourth writ petition was that filed by S.P. Gupta in the High Court of Allahabad. The petitioner in that writ petition was an advocate practising in the Allahabad High Court and he had filed this writ petition for substantially the same reliefs as the writ petitions of Iqbal Chagla and V.M. Tarkunde, with only this difference that the reliefs claimed by him relate to the appointments of additional Judges in the High Court of Allahabad, The petitioner has inter alia prayed for a declaration that the three additional Judges of the Allahabad High Court, namely, Mr. Justice Murlidhar, Mr. Justice A.N. Verma and Mr. Justice N.N. Mittal must be deemed to have been appointed permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister must be held to be void. The fifth writ petition is that filed by Miss Lily Thomas, an advocate practising in the Supreme Court. This writ petition has challenged the transfer of Mr. Justice M.M. Ismail,

Chief Justice of the High Court of Madras as the Chief Justice of Kerala High Court. What occasioned the filing of this writ petition was an order dated 19th Jan., 1981 made by the President transferring Mr. Justice M.M. Ismail, Chief Justice of the Madras High Court as Chief Justice of the Kerala High Court with effect from the date he assumed charge of his office. The sixth writ petition is that filed by A. Rajappa an advocate practising in the High Court of Madras. This writ petition was originally filed in the High Court of Madras under Article 226 of the Constitution and in this writ petition the petitioner challenged the constitutional validity of the orders of transfer passed by the President on 19th Jan., 1981 transferring Mr. Justice M.M. Ismail, Chief Justice of Madras High Court as the Chief Justice of Kerala High Court and Mr. Justice K.B.N. Singh, Chief Justice of Patna High Court as the Chief Justice of Madras High Court. The principal grounds on which these two orders of transfer were assailed as unconstitutional and void were substantially the same as those urged in the fifth writ petition filed by Miss Lily Thomas, with only two additional grounds, namely, that the transfers having been effected without prior consultation with the Governors of the States to which the two Chief Justices were transferred, were violative of Clause (1) of Article 217 and so far as the transfer of Chief Justice K.B.N. Singh as Chief Justice of Madras High Court was concerned, it was not in public interest, since Chief Justice K.B.N. Singh did not know the Tamil language. The seventh writ petition is that filed by P. Subramanian, an advocate practising in the Madras High Court. The averments and prayers made in this writ petition are substantially the same as those in the sixth writ petition filed by A. Rajappa. The eighth writ petition is that filed by D.N. Pandey and Thakur Ramapati Sinha, two advocates practising in the High Court of Patna. This writ petition was originally filed in the High Court of Patna under Article 226 and it challenged the constitutional validity of the Orders transferring Chief Justice M.M. Ismail to the Kerala High Court and Chief Justice K.B.N. Singh to the Madras High Court. When these writ petitions reached hearing before the court, a preliminary objection was raised by Mr. Mridul, appearing on behalf of the Law Minister, challenging the locus standi of the petitioners in Iqbal Chagla's writ petition. He urged that the petitioners in that writ petition had not suffered any legal injury as a result of the issuance of the Circular by the Law Minister or the making of short term appointments by the Central Government and they had therefore no locus standi to maintain the writ petition assailing the constitutional validity of the Circular or the short term appointments. The legal injury, if at all, was caused to the additional Judges whose consent was sought to be obtained under the Circular or who were appointed for short terms and they alone were therefore entitled to impugn the constitutionality of the Circular and the short term appointments and not the petitioners. The basic postulate of the argument was that it is only a person who has suffered legal injury who can maintain a writ petition for redress and no third party can be permitted to have access to the Court for the purpose of seeking redress for the person injured. The same preliminary objection was urged by Mr. Mridul against the writ petition of S.P. Gupta and the contention was that the petitioner in that writ petition not having suffered any legal injury had no locus standi to maintain the writ petition. So far as the writ petition of V.M. Tarkunde is concerned, Mr. Mridul said that he would have had the same preliminary objection against the locus standi of the petitioner to maintain that writ petition because the petitioner had suffered no legal injury, but since S.N. Kumar had appeared, albeit as a respondent, and claimed relief against the decision of the Central Government not to appoint him for a further term and sought redress of the legal injury said to have been caused to him as a result of such decision, the lack of locus standi on the part of the petitioner was made good and the writ petition was maintainable. Mr. Mridul asserted that if S.N. Kumar had not appeared and

sought relief against the decision of the Central Government discontinuing him as an additional Judge, the writ petition would have been liable to be rejected at the threshold on the ground that the petitioner had no locus standi to maintain the writ petition. This preliminary objection urged by Mr. Mridul raised a very interesting question of law relating to locus standi, or as the Americans call it 'Standing', in the area of public law. This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratise judicial remedies, remove technical barriers against easy accessibility to Justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.

JUDGEMENT IN THE CASE: PIL The judgement in the case related to the augmentation of the rule of locus standi, given by Bhagwati, J., is as follows and it was actually a landmark judgement in itself:

These writ petitions filed in different High Courts and transferred to this Court under Article 139 of the Constitution raise issues of great constitutional importance affecting the doctrine of locus standi and the independence of the judiciary and they have been argued at great length before us.

Reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach. I will recall the brilliant fling of Shri Aurobindo in his poem Savitri. An inconclusive play is Reason's toil; each strong idea can use her as its tool; accepting every brief she pleads her case, Open to every thought she cannot know. 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. This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective. We must, therefore, reject the preliminary objection raised by Mr. Mridul challenging the locus standi of the petitioners in the first group of writ petitions. Law is a social auditor and this audit function can be put into action when some one with real public interest ignites the jurisdiction. In a society where freedoms suffer from atrophy, and activism is essential for participative public justice, some risks have to be taken and more opportunities open-ed for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.-Iyer, J. But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Political pressure groups who could not achieve their aims through the administrative process may try to use the courts to further their aims. These are some of the dangers in public interest litigation which the court has to be careful to avoid.

Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.

IMPORTANCE OF THE CASE After this historic decision it can be said that the Apex court has cleared all the impediments which were impeding the cause of social Justice and the public interest litigation has come to stay as a major strategy for justice to weaker segments of society. It is not only confined to violation of fundamental rights but to redress any legal wrong or injury actually caused or threatened. Due to this case the judges of the Supreme Court of India got rid of any pre-conceived notions or ideas and interpreted the Constitution as it is and not as they thought it ought to be. They could have found some reason for bending the language of the Constitution to their will, if they wanted, but that would have been rewriting the Constitution in the guise of interpretation. Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment, These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. Holmes, J. Even though the judges of the Apex court paid heed to this statement, then also the importance of this case cannot be eclipsed. The broadening of the doctrine of locus standi is the basic and the most significant advantage of this case. Though this case established the supremacy of the executive but the guidelines offered by this case in the field of public interest litigation were of utmost enormity. The study of public interest litigation cannot be wholly completed without the study of this case.

CONCLUSION Taking note of Constitutional mandate and the changing trends in the Indian society, the judiciary has, by this case, evolved a new strategy to provide social justice to the poor and under-privileged who have remained oppressed and exploited over the years.

The major problems of social justice were brought before the court, by way of public interest litigation such as prison atrocities, sufferings of women, injustice to labourers, exploitation of children, miserable plight of harijans, problems of drug abuse and instances of administrative lapses or excesses etc. Undoubtedly the Courts through public interest litigation and apparently these types of cases are doing yeoman service to society in general and to the neglected and oppressed poor in particular but in absence of effective enforcing machinery one really wonders as to what fruitful purpose it is going to serve. Mere pronouncements are hardly going to heal the wounds of the victim. Despite some pitfalls the fact remains that has created a ray of hope in the realm of justice system and in view of innumerable divergent problems of Indian society. It may usefully serve as a candle in the darkness of injustice. An observation of David Hume is worthy of note in the end though: To balance a large State of society whether Monarchical or Republican, on general laws, is a work of so great difficulty that no human genius however comprehensive, is able by the mere dint of reason and reflection, to affect it. The judgments of many should unite in this work; experience must guide their labour; time must bring it to perfection; and the feeling of inconvenience must correct the mistakes which they inevitably fall into in their first trials and experiments.