The
Indian Constitution of 1949 provides ample jurisdiction with the High Courts to
take suo motu notice of infarctions of fundamental rights under Article 226.
Further, Indian High Courts have been given writ jurisdiction to which the
Supreme Court of India has expounded as a very wide power. Like the Indian
Supreme Court, the High Courts of India have also powers to take suo motu
actions under Article 226.
Therefore,
a high court can take action under article 226 of the Constitution if a
newspaper clipping brings to the notice of a judge the infarction of
fundamental right. However, such action cannot be taken by the learned judge
himself. The proper procedure has been provided by the Supreme Court in a
number of judgments to the effect that in such a case, it is appropriate for a
judge of high court to refer the matter to the chief justice of the High Court
and it will be the Chief Justice who will decide as to which Judge or a bench
of Judges can hear said matter. This also helps in avoiding forum choice by the
litigants or for that matter by the newspaper printers/publishers.
On
the other hand, the Supreme Court of India has also provided guidelines through
different judgments that the High Courts should use restraint in acting upon
the newspaper reports as these are sometimes created with mala fide intention
or based on wrong facts.
DISCUSSION:
Clause (1) of Article 226 of the Constitution of India
1950 reads as under:
226.
Power of High Courts to issue certain writs.––(1) Notwithstanding anything in Article
32, every High Court shall have power, throughout the territories in relation
to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of Habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.
V. N.
Shukla, in his Constitution of India,[1] has
described these powers in the following words:
The
High Courts have very wide powers under Article 226. These powers confer a
discretion of a most extensive nature on the High Courts. But the very vastness
of the powers conferred on the High Court imposes on it the responsibility to
use them with circumspection. Accordingly, the High Court will necessarily
exercise the jurisdiction in accordance with judicial considerations and
well-established principles.
The above quoted article 226 from the Indian
Constitution is different from the present Constitution of Pakistan 1973
because the Indian constitution does not prescribe as to who can move the Court
for enforcement of violation of Fundamental Rights. The Article 226 of Indian
Constitution seems at par with Article 170 of the erstwhile Constitution of
Pakistan 1956. Under the Pakistani jurisprudence, it has been held in The
Tariq Transport Company v. Sargodha Bhera Bus Service and others PLD 1958
SC (Pak.) 437, (Mr. Justice Munir spoke for the Court):
I
shall presently deal with the issue raised and fully argued whether a Regional
Transport Authority is a quasi judicial body but assuming that it is, it 'does
not follow that under the Constitution the High Court can exercise a general
revisional or supervisory jurisdiction over such bodies because, as already
pointed out, a petitioner for a writ or a direction or order under Article 170
of the Constitution has first to show his standing. A High Court, therefore, is not competent merely on information or of
its own knowledge to commence certiorari proceedings or other proceedings of a
similar nature under that constitutional provision.
The above observation was
made by the Supreme Court of Pakistan under Article 170 of the erstwhile 1956
Constitution, a parallel provision of Article 226 of Indian Constitution. The
strict construction of locus standi
was the norm here. This was again held in the State of Pakistan and another v.
Mehrajuddin, PLD 1959 SC (Pak.) 147. After the abrogation of 1956
Constitution, the 1962 and 1973 Constitutions have made it clear through
Articles 98 and 199 respectively that such writ jurisdiction by the high courts
can only be used when the Court is moved either by a person or by an aggrieved
party. The judgments presently holding the field in Pakistan on Article 199 of
Constitution of Pakistan 1973 are quite clear on this point.[2] As
the Indian law is in the same wording as were applicable in Pakistan under 1956
Constitution, thus, we have to see how the Indian Courts have interpreted
Article 226 of Indian Constitution.
We will now focus on Indian
interpretation of Article 226 of the Indian Constitution by the Indian Courts.
Thus, in a recently decided case by a learned Division Bench of the Madras High
Court in Women Lawyers' Association vs Government Of Tamil Nadu,[3] it
has been held:
334. Exercise of jurisdiction under Article 226 of
Constitution of India is not daunted, where glaring injustice demands
affirmative action. This is the suo-moto taken up matter treated as Public
Interest Litigation. Whenever injustice is meted out to a large number of
people, Court will not hesitate in stepping in. In furtherance of the public
interest and in the interest of justice, on the available materials, it is
necessary to enquire into the incidents on 19.2.2009.
It
has been observed about the person or aggrieved party in Shukla’s Constitution of India, at p. 557 as
under:
Article
226 in terms does not describe classes of persons entitled to apply thereunder,
but the existence of the right is the foundation of the exercise of
jurisdiction by the High Court. The legal right that can be enforced must
ordinarily be the personal right of the petitioner himself who complains of
such right and approaches the court for relief.
It further went on to say,
at p. 558, that “the concept of locus standi has undergone a sea change,
particularly in respect of public interest litigation. The same liberalized
principles of locus standi are applicable to Article 226 as are to Article 32.”
We have to analyze these comments.
In a 2008 case, Delhi High
Court took suo motu notice on the
following facts:
2. On 30th May, 2007 a TV news
channel - NDTV - carried a report relating to a "sting" operation.
The report concerned itself with the role of a defence lawyer and the Special
Public Prosecutor in an ongoing Sessions trial in what is commonly called the
"BMW case".
3. On 31st May, 2007 a Division
Bench of this Court, on its own motion, registered a writ petition being WP
(Crl.) No. 796 of 2007 since it was of the opinion that if the reported
contents were true, they raise serious issues concerning criminal justice
administration. Under these circumstances, the Division Bench felt it expedient
and in the interest of justice to ascertain the full facts from NDTV.
In this case, the role of
the media has been explained as under:
50. There is no doubt, as observed by the Supreme Court
in Rajendra Sail v. M.P. High Court Bar
Association, (2005)
6 SCC 109 that the reach of the media is to every nook and corner of the world,
particularly these days when we have 24-hour news channels and webcasts on the
Internet. The Supreme Court also observed that a large number of people tend to
believe as correct that which appears in the print or electronic media. For
these reasons alone, the mass media has to be circumspect while dealing with
„news‟.
The suo motu contempt
proceedings resulted in conviction of the advocates who were respondents of the
proceedings.
In the Case of S.C. and Weaker Section Welfare Association
v State of Karnataka, AIR 1991 SC 1117, the Supreme Court has taken up a
matter where the petitioners were refused to stand for a judgment in their
favour on the ground that they have no interest in the matter and that the
question of public interest is not established. The Supreme Court of India
refuted this reasoning of the High Court and held (at p. 1119):
Where a member of of the public
acting bona fide moves the court for enforcement of a fundamental right on
behalf of a person or class of a persons who on account of poverty or
disability or socially or economically disadvantaged position cannot approach
the Court for relief, such member of the public may move the Court even by just
writing a letter as held by this Court in Bandhua Mukti Morcha v. Union of
India (1984) 2 SCR 67: (AIR 1984 SC 802). We are, therefore, of the view that
the High Court was wrong in concluding that appellants were incompetent to invoke
the jurisdiction of the Court.
It has also been held,
with respect to the powers of the High Court to issue writ in cases of public
interest matters, in Chaitanya Kumar v
State of Karnataka, AIR 1986 SC 825, 831, that
…the Court cannot close its eyes and
persuade itself to uphold publicly mischievous executive actions which have
been so exposed. When arbitrariness and perversion are writ large and brought
out clearly, the Court cannot shirk its duty and refuse its writ. Advancement
of the public interest and avoidance of the public mischief are the paramount
considerations…
A leading authority from
India was Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802, wherein
the jurisdiction of the Supreme Court under Article 32 of Indian Constitution
was under discussion. However, the Court has aptly remarked about the
jurisdiction of the High Courts in India, while giving reference to the Judges Appointment Case (1982) 2 SCR 365 :
AIR 1982 SC 149, in the following words:
…[Supreme] Court for the first time took the view that where a
person or class of persons to whom legal
injury is caused by reason of violation of a fundamental right is unable to
approach the Court for judicial redress on account of poverty or disability or
socially or economically disadvantaged position, any member of the public
acting bona fide can move Court for relief under Article 32 and a fortiorari, also under Article 226, so
that the fundamental rights may become meaningful not only for the rich and the
well-to-do who have the means to approach the Court but also for the large
masses of people who are living a life of want and destitution and who are by
reason of lack of awareness, assertiveness and resources unable to seek
judicial redress.
This judgment itself
provides the scope of powers of the High Courts, when at para 15, p.817, the
Supreme Court has authoritatively held:
We may point out that what we have
said above in regard to the exercise of jurisdiction by the Supreme Court under
Article 32 must apply equally in relation to the exercise of jurisdiction by
the High Courts under Article 226, for the latter jurisdiction is also a new
constitutional jurisdiction and it is conferred in the same wide terms as
jurisdiction under Article 32 and the same powers can and must therefore be
exercised by the High Courts while exercising jurisdiction under Article 226.
The
Court further went on to elaborate the powers of High Court when it held:
In fact, the jurisdiction of the
High Courts under Article 226 is much wider, because the High Courts are
required to exercise this jurisdiction not only for enforcement of a
fundamental right but also for enforcement of any legal right and there are many
rights conferred on the poor and disadvantaged which are the creation of
statute and they need to be enforced as urgently and vigorously as fundamental
right.
The Indian courts have
been flooded with the public interest litigation cases after the enabling judgments
were pronounced by the Supreme Court since 1980s. Now, the over-burdened public
spirited courts were trying to look after some way to weed out the fake,
publicity oriented, personal interest litigation, media based litigation etc
from the genuine public interest cases. For this, the Courts started to find
out how this can be done. Thus, the situation has been analyzied in M/S Holicow Pictures Pvt Limited v Prem
Chandra Mishra & Ors., AIR 2008 SC 913. At p.919 (para 22) of this
judgment, it has thus been aptly remarked:
As noted supra, a time has come to
weed out the petitions, which though titled as public interest litigations are
in essence something else. It is shocking to note that Courts are flooded with
large number of so called public interest litigations where even a minuscule
percentage can legitimately be called as public interest litigations. Though
the parameters of public interest litigation have been indicated by this Court
in large number of cases, yet unmindful of the real intentions and objectives,
Courts are entertaining such petitions and wasting valuable judicial time
which, as noted above, could be otherwise utilized for disposal of genuine
cases.
Regarding taking actions
on newspaper clippings by the High Courts in their public interest
jurisdiction, the Court went on to observe:
It is also noticed that petitions
are based on newspaper reports without any attempt to verify their
authenticity. As observed by this Court in several cases newspaper reports do
not constitute evidence. A petition based on unconfirmed news reports, without
verifying their authenticity should not normally be entertained….such petitions
do not provide any basis for verifying the correctness of statements made and
information given in the petition. It would be desirable for the Courts to
filter out the frivolous petitions and dismiss them with costs…”.
Basu, in his Commentary on the Constitution of India,[4]
has made it clear that the “[c]onstitutional courts can initiate suo motu action in public interest. On
the basis of a newspaper report regarding the death of twenty-five mentally
retarded persons in Tamil Nadu, Suo motu
action was taken. Karnataka High Court observed that whenever a matter of grave
public importance is to be brought by Court (suo moto), a reference may be made
to the Chief Justice of the High Court for necessary action.”[5]
Few cases are analyzed here in this regard.
In High Court of Karnataka v State
of Karnataka, AIR1998 Kant 327 (DB),[6]
the facts were:
Taking cognizance of two news items published in the
Times of India dated 11-1-1996 in its Bangalore Edition, a learned Judge of
this Court initiated suo motu action directing the Registrar General to
register his order of reference as writ petition and obtain appropriate orders
from the Chief Justice for allocation of Court. In his order of reference, the
learned Judge found that there was virtual break-down of law enforcement
machinery which was found reflected because of the alleged rise of crime in the
city of Bangalore.
The Respondent government
took objection on the sweeping observations made in the order of learned single
judge. The learned Division Bench of Karnataka High Court then gave the
following observation about the suo moto power of the High Court on the matters
of public importance highlighted by the press:
We are of the opinion that initiation of writ
proceedings suo motu in public interest is inalienable part of the
constitutional scheme and within the competence of every Hon'ble Judge of this
Court.
However, the Court went on
to explain about the limitation on said power in the following manner:
But,
such power is required to be exercised and regulated in accordance with the
rules made, the norms set by the High Court, keeping in view the administrative
instruction issued and Roster of Sitting prepared by the Chief Justice. While
exercising the suo moto power of initiating public interest litigation
self-restraint and judicious exercise is expected to be borne in mind. Such
power has to be resorted to cautiously and sparingly in order to ensure that
such exercise is not utilised merely for publicity or purposes alien to the
object sought to be achieved. It would be appreciated that as and when any
matter of public importance is sought to be brought to the notice of the Court,
a reference may be made to the Chief Justice for initiation of action. The
Chief Justice in turn is required to get the matter examined according to the
guidelines formulated by the Hon'ble Supreme Court and this Court in that
regard. After the matter is examined, the same can be placed before the
appropriate Bench in accordance with the directions issued in that regard by
the Chief Justice, for further necessary action. It is expected that before
initiating suo motu proceedings in public interest, care shall be taken to keep
in mind the relevant judgments of the Apex Court and this Court on the subject.
At the same time, the
Court was conscious that the role of the press is very critical in present day
world of information technology. It is so because use of courts suo moto powers
on the basis of newspaper clippings requires that at least the news items
published in the press are reported after due verification of facts. Otherwise,
it will become mockery of the whole process. It has thus been observed by the Court:
6.
The importance of the press in a democratic set up can neither be minimised nor
curtailed. The conferment of freedom of speech and expression on the press
pre-supposes their responsibilities, limitations and accountability. It is
expected from a responsible press that before reporting, they shall exercise
restraint and try to ascertain the genuineness, correctness and the
authenticity of the report to be published. It is emphasised that such an
obligation is expected more while reporting the Court proceedings. Before
reporting the Court proceedings, the responsible press is required to ascertain
the true position either from the record or from an official of the registry.
Such a course is necessary not to erode the confidence of a common man in the
judiciary. We are sure that the press would come to the expectations of the
people and take effective measures wherever needed in reporting the matters of
public importance.
As we have discussed above
that the powers of the High Court under Article 226 and powers of the Supreme
Court under Article 32 to take suo motu actions on violation of fundamental
rights are wide enough, thus the action taken by the Supreme Court of India on
news reports become precedent for the High Courts to follow the same line of
action where relevant. Hence, a suo moto action was taken by the Supreme Court
of India on a note put up by the Registrar based on newspaper reports that some
mentally retarted persons have been killed in a fire outburst in a mental
health facility. The Court in In Re: Death of 25 Chained Inmates in Asylum
Fire in Tamil Nadu, AIR 2002 SC 979 and AIR 2002 SC 3693 have passed
orders to the government concerned to take some policy actions for avoidance of
such like incidents in future.
In Friends Colony Development
Committee v State of Orissa, AIR 2006 SC 1846, the Supreme court has directed
the High Court, in a case where the illegal constructions were brought to the
notice of the High Court and case was registered as a PIL case that “the High
Court, if it feels that illegal or unauthorized building activities are so
rampant as to be noticed judicially, may suo motu register a public interest
litigation and commence monitoring the same by issuing directives so as to curb
such tendency and fixing liability and accountability.”
Basu has further explained
at p. 6777 (vol 6) that “rules framed by the High Courts under Article 226 do
not prohibit or bar initiation of proceedings by the Court on the basis of
letters or telegram, other communication or even suo motu.”
In Divine Retreat Centre v State of
Kerala AIR 2008 SC 1614 and State of
Rajasthan v Prakash Chand, AIR 1998 SC 1344, the ratio declares that
the individual judges cannot pick and choose any case pending in the High Court
and assign the same to themselves for disposal without appropriate orders from
the chief justice. Hence individual judges ought not to entertain communication
and letters personally addressed to them and initiate action on the judicial
side based on those letters and if any individual letters or petitions are
received by individual judges, they must be placed before Chief Justice for
consideration as to the proposed action on such letters or petitions.[7]
[1] 9th Ed,
Lucknow: Eastern Book Company, 1996 reprint, at p. 550.
[3] W.P.Nos.3335, 3703, 3704,
3705 and 3910/2009. Available online at http://www.indiankanoon.org/doc/837034/.
Visited 10.10.2012.
[4] Durga Das Basu, Commentary on the Constitution of India,
8th Edition, Nagpur: Butterworths Wadhwa, (2010).
[5] Basu (ibid), vol. 6, p.
6826.
[7] See Basu, vol. 6, pp.
6678-9.
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