PUBLIC INTEREST LITIGATION

PIL AND SOME IMPORTANT JUDGMENTS OF THE SUPREME COURT OF INDIA

WHAT AND WHY PIL

PIL is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses who constitute the low visibility area of humanity. PIL is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position, should not go unnoticed and unredressed.
SUPREME COURT IN PUDR VS UNION OF INDIA (AIR 1982 SC 1473)

 LOCUS STANDI- general rule is that only the person aggrieved to move for relief against violation of ones rights A public spirited individual or a journalist (Olga Tellis, Sheela Barse) or a social action group may also move for enforcement of the constitutional rightss of some other person, provided such other person is unable to approach the court for redress owing to Such person being in custody - Sunil Batra Such person belongs to a class or group of persons who are in a disadvantaged position on account of poverty, disability or other social or economical impediment, and are unable to enforce their rights (PUDR, Bandhua Mukti Morcha) Even where no particular has been legally injured but a public injury has been caused by the violation of a constitutional principle, any person who is likely to be affected by such public injury would be allowed to complain of such violaltion Public interest is the anti thesis of private or self interest and should not be private interest masquerading as public interest (Subhash Kumar vs State of Bihar AIR 1991SC 420; TN Godavarman Thrimulkpad, Sabia Khan vs State of UP (1999)1 SCC 271

Different phases of PIL

Late 1970s to 1980s- For exercise of civil and political rights of prisoners and the socio economic rights of marginalised groups by social movements. Legal Discourse of Social Justice-reference to Directive Principles 1990s- shift in focus on environmental litigation and custodial torture- focus on law enforcement; Legal discourse shifts to Human Rights and linking of fundamental rights to International law 2000 onwards- reduction of PIL with court distinguishing between private and public interest; focus on good governance; increasing use of PIL to enforce the rights of the middle classes and the rich.

Guidelines for PIL issued by the Supreme Court in State Of Uttaranchal vs Balwant Singh Chaufal & Ors (2010) 3 SCC 402
198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared

(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

HUSSAINARA KHATOON VS. STATE OF BIHAR, (1980) 1 SCC 91

The Supreme Court laid down the principle of bail not jail in a series of judgments. In the present case while dealing with the problem of indigent undertrials who are unable to furnish surety or cash bail, the court held that those unable to do so maybe released on their personal recognizant bond (PR Bond) and has held that courts should use the following criteria to satisfy itself that the accused has his roots n the community which would deter him from fleeing if released on his personal bond: The length of his residence in the community; His employment status, history and financial condition; His family ties and relationships; His reputation, character and monetary condition; His prior criminal record including any record of prior release on recognizance bond; The identity of responsible persons in the community who would vouch for his reliability; The nature of the offence charged and the apparent probability of conviction and the likely sentence insofar as these factors are relevant to the risk of nonappearance; and Any other factors indicating the ties of the accused to the community or bearing on the risk of willful failure to appear.

 Free legal service is an unalienable element of 'reasonable, fair and just' procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. the right to free legal service is therefore, clearly an essential ingredient of ' reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 from the stage of remand itself.Hussainara Khatoon vs. State of Bihar, 1980 (1) SCC 98 Handcuffing not permitted except by orders of the Court. Violation punished as contempt of court[Citizens for Democracy vs. State of Assam, 1995(3) SCC 743

Solitary confinement is not sanctioned though prisoners under sentence of death can be kept separate from the rest of the prison community during hours when prisoners are generally locked in. Such prisoners can be kept under special watch, however conceding to minimum human privacy. However these prisoners shall mean not those sentenced to death by any court but whose mercy petitions the President or the Governor has rejected as the case may be. These prisoners shall not be denied any of the community amenities, including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable regulation of prison management. More importantly, if the prisoner desires loneliness for reflection and remorse, for prayers and making peace with his maker, or opportunities for meeting family or friends, such facilities shall be liberally granted. Sunil Batra vs. Delhi Administration, 1978 (4) SCC 494 No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action. Sunil Batra vs. Delhi Administration (II),1980 (3) SCC 488. Also See Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav, (2005) 3 SCC 284

Police surveillance of suspects is necessary for the detection and prevention of crime and the imposition of the requirements of the principles of natural justice would defeat its very object. However the courts would interfere with this in the following cases: Where the intrusion is so excessive as to seriously encroach upon the freedom of movement of dignity of the individual concerned, in the guise of surveillance. When a person challenges the entry of his name in the Surveillance Register, the Court may call upon the Police to satisfy itself that there are grounds to entertain a reasonable belief that a person was a habitual offender or receiver of stolen property. The Court might also interfere if the Police tap the conversation of innocent citizens, by coercion or unlawful methods Malak vs. State of Punjab, AIR 1981 SC 760; Malkani vs. State of Maharashtra, AIR 1973 SC 157

The ban against self accusation and the right to silence while one investigation/ trial is underway, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read compelled testimony as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like- not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20 (3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes compelled testimony violative of Article 20(3) Nandini Satpathy vs P.L. Dani (AIR 1978 SC 1025)

RIGHTS ON ARREST Joginder Kumar vs. State of Uttar Pradesh, (1994) 4 SCC 260 D.K.Basu vs. State of West Bengal, 1997 Cri.L.J. 743)

No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lockup of a person can cause incalculable harm to the reputation and self-esteem of the person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against the person. It would be prudent for a police officer in the interest of protection of constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest; The police personnel carrying out the arrest and handling the interrogation of the arrest should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register;

The Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the accused or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest; A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at a particular place, unless the attesting witness of the memo of arrest is himself, such a friend or a relative of the arrestee; The time, place of arrest and venue of custody of an accused must be notified by the police where the next friend or relative or the accused lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest; The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained;

An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and names and particulars of the police officials in whose custody the arrestee is; It shall be the duty of the Magistrate before whom the arrestee is produced to satisfy himself that these requirements have been complied with; The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his body, must be recorded at that time. The "Inspection Memo" must be signed by both the arrestee and the police officer effecting the arrest and its copy provided to the arrestee;
The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well;

 Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record; The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation; A police control room should be provided at all Districts and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the said requirements shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of court may be instituted in any High Court of the country having jurisdiction over the matter; These requirements would apply with equal force to the other governmental agencies also, like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force, Border Security Force, the Central Industrial Force, the State Armed Police, Intelligence agencies like the Intelligence Bureau, R.A.W., Central Bureau of Investigation, CID, Traffic Police, Mounted Police and ITBP

 Using any form of torture for extracting any kind of information would neither be right nor just nor fair and therefore, would be impermissible being offensive under Article 21. Definition of torture same as Article 1 of Convention Against Torture- the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Some punitive provisions are contained in the Indian Penal Code, which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or deeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330 therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. Prosecution of the offender is an obligation of the State in case of every crime;
These statutory provisions are inadequate to repair the wrong done to the citizen. The court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done due to the breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience;

 The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Articles 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen Rudal Sah vs. State of Bihar, AIR 1983 SC 1086; Sebastian M.Hongrey vs. Union of India, AIR 1984 SC 956; Smt. Nilabati Behera vs. State of Orissa, 1993(2)SCC 746 and D.K.Basu vs. State of West Bengal, 1997 Cri.L.J. 743

RIGHTS OF WOMEN PRISONERS- Sheela Barse vs. State of Maharashtra, 1993 Cri.L.J. 642

- Female suspects should not be kept in the police lock up in which male

suspects are detained. Some police lock ups should be selected in reasonably good localities of the city where only female suspects should be kept and they should be guarded by female constables; The interrogatories of females should be carried out only in the presence of female police officers / constables; A person arrested without a warrant must be immediately informed the grounds of her arrest and in case of every arrest it must be immediately be make known to the arrested person that she is entitled to apply for bail. A pamphlet setting out the legal rights of the arrested person should be forthwith got prepared by the Maharashtra State Board of Legal Aid and Advice and the same is to be printed by the State Government in English, Hindi and in the local language Marathi. The printed copies of such a pamphlet are to be affixed in each cell in every police lock up. Such a pamphlet is to be read out to the arrested personas soon as she is brought to the police station;

 On the arrested person being taken to the police lock up, the police are immediately to give intimation of the fact of such arrest to the nearest Legal Aid Committee and such Committee is to take immediate steps to offer legal assistance at State cost to the arrested person; Arrangements are to be made for a Sessions Judge to make surprise visits to police lock ups periodically for providing the arrested persons an opportunity to air their grievances, for ascertaining the conditions in the lock ups, and for finding out whether the provisions of law are being observed and the above directions of the Supreme Court are being carried out. The lapse found in such visits are to be suitable brought to the notice of higher Police officials, to the Home department of the State and if necessary to the Chief Justice of the High Court; Soon after arrest, the Police must obtain from the arrested person the name of any relative or friend whom she would like to be informed about her arrest and the Police should accordingly inform such relative or friend; The Magistrate before whom an arrested person is produced shall inquire whether she has any complaint of torture or maltreatment in police custody and inform her that she has a right under Section 54 of the Cr.P.C to be medically examined

 The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible Even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise to continue to perform such service, as that would be forced labour within the inhibitian of Article 23. This Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be forced provide labour or service against his will, even though it be under a contract of service. PUDR VS UNION OF INDIA (1982)3SCC235

 It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'force' which would make such labour or service 'forced labour' may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would we 'forced labour'. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly, falls within the scope and ambit of the words forced labour under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied.

 It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f)of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. The State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community andis unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central Government is therefore bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy. Whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer. This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act. The State Government cannot be permitted to repudiate its obligation to identify, release and rehabilitate the bonded labourers on the plea that though the concerned labourers may be providing forced labour, the State Government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded labourers. Bandhua Mukti Morcha vs Union of India AIR 1984 SC802

Parmanand Katara vs Union of India, AIR 1989 SC 2039

Article 21 of the Constitution casts the obligation on the State to preserve life. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.

 Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. [ It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.

Common Cause vs UOI, AIR 1996 SC 929

The Union Government shall take steps to establish forthwith a National Council of Blood Transfusion as a society registered under the Societies Registration Act. It would be a representative body having in it representation from the Directorate General of Health Services of the Government of India, the Drug Controller of India, Ministry of Finance in the Government of India, Indian Red Cross Society, private blood banks including the Indian Association of the Blood Banks, major medical and health institutions of the country and non-Government organisations active in the field of securing voluntary blood donations. In order to ensure coordination with the activities of the National Aids Control Organisation, the Additional Secretary in the Ministry of Health, who is incharge of the operations of the programme of National Aids, Control Organisation for strengthening the blood banking system could be the President of the National Council. In consultation with the National Council, the State Governments/ Union Territory administration shall establish a State Council in each State/ Union Territory

 The programmes and activities of the National Council and the State Councils shall cover the entire range of services related to operation and requirements of blood banks including the launching of effective motivation campaigns through utilisation of all media for stimulating voluntary blood donations, launching programmes of blood donation in educational institutions, among the labour, industry and trade, establishments and organisations of various services including civic bodies, training of personnel in relation to all operations of blood collection, storage and utilisation, separation of blood groups, proper labelling, proper storage and transport, quality control and archiving system, cross-matching of blood between donors and recipients, separation and storage of components of blood, and all the basic essentials of the operations of blood banking. The National Council shall undertake training programmes for training of technical personnel in various fields connected with the operation of blood banks. The National Council shall establish an institution for conducting research in collection, processing, storage, distribution and transfusion of whole human blood and human blood components, manufacture of blood products and other allied fields.

 The National Council shall take steps for starting special postgraduate courses in blood collection, processing, storage and transfusion and allied fields in various medical colleges and institutions in the country. The Union Government and the Governments of the States and Union Territories should ensure that within a period of not more than one year all blood banks operating in the country are duly licensed and if a blood bank is found ill equipped for being licensed, and remains unlicensed after the expiry of the period of one year, its operations should be rendered impossible through suitable legal action. The Union Government and the Governments of the States and Union Territories shall take steps to discourage the prevalent system of professional donors so that the system of professional donors is completely eliminated within a period of not more than two years. The existing machinery for the enforcement of the provisions of the Act and the Rules should be strengthened and suitable action be taken in that regard on the basis of the Scheme submitted by the Drugs Controller Necessary steps be taken to ensure that Drugs Inspectors duly trained in blood banking operations are posted in adequate numbers so as to ensure periodical checking of the operations of the blood banks throughout the country. The Union Government should consider the advisability of enacting a separate legislation for regulating the collection, processing, storage, distribution and transportation of blood and the operation of the blood banks in the country.

Directions for mentally ill in jails -Sheela Barse Vs Union Of India (1993) 3 Crimes 261
admission of non-criminal mentally ill persons to jails is illegal and unconstitutional the function of getting mentally ill persons examined and sent to places of safe custody shall be performed only by Judicial Magistrate The Judicial Magistrate will, upon a mentally ill person being produced, have him/her examined by a Mental Health Professional/Psychiatrist and if advised by such Mental Health Professional/Psychiatrist send the mentally ill person to the nearest place of treatment and care The Judicial Magistrate will send reports every quarter to the High Court setting out the number of cases of persons sought to be screened and sent to places of safe custody and action taken by the Judicial Magistrate thereon

Delhi Domestic Workers Forum vs Union of India, (1995)1 SCC 14

The Supreme Court laid down the following guidelines to assist the victims of rape: The complainants of sexual assault cases should be provided with legal representation. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represents her till the end of the case. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at her police station, the guidance and support of a lawyer at this stage would be of great assistance to her. The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose lawyer was unavailable.

 The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained. In all rape trials anonymity of the victim must be maintained, as far as necessary. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of childbirth if this occurred as a result of the rape. ALSO SEE BODHISATVA GAUTAM VS SUBHR A CHAKRABORTY (1996) 1 SCC 490 AND CHAIRMAN RAILWAY BOARD VS CHANDRIMA DAS(2000)2 SCC 988

Vishakha vs State of Rajasthan (1997) 6 SCC 241

The Supreme Court formulated the following guidelines in this case which have provided protection to women workers: " sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: Physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; any other unwelcome physical, verbal or non-verbal conduct of sexual nature)." It is the duty of the employer or other responsible persons in work places or other institutions to prevent sexual harassment and to provide procedures for resolution of complaints. Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government; private sector or unorganized sector come under the purview of these guidelines.

 The following preventive steps must be undertaken by employers or other responsible authorities in public or private sectors as follows: Express prohibition of sexual harassment should be notified and circulated Prohibition of sexual harassment should be included in the rules and regulations of government and public sector bodies. Private employers should include prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. Appropriate work conditions should be provided for work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment. Employers must provide a Complaints Committee headed by a woman and not less than half of its members should be women. Complaints Committee should include an NGO or other organization that is familiar with the issue of sexual harassment. Complaint procedure must be time bound. Confidentiality of the complaint procedure has to be maintained. .

 Complainants or witnesses should not be victimised or discriminated against while dealing with complaints. The Committee should make an annual report to the government department concerned of the complaints and the action taken by them. When the offence amounts to misconduct under service rules, appropriate disciplinary action should be initiated. When such conduct amounts to an offence under the Indian Penal Code, the employer shall initiate action by making a complaint with the appropriate authority. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. Sexual harassment should be affirmatively discussed at workers meetings, employeremployees meetings and other appropriate forums. Guidelines should be prominently notified to create awareness of the rights of female employers. The employer should assist persons affected in cases of sexual harassment by outsiders or third parties. Central and State governments are required to adopt measures including legislation to ensure that private employers also observe guidelines

 Right to education- Mohini Jain vs State of Karnatka (1992)3 SCC 666; Unnikrishnan vs State of AP, (1993) 1 SCC 645; TMA Pai Foundation vs State of Karnataka (2002) 8 SCC 481 International Conventions and Covenants ratified by India which elucidate and effectuate the fundamental rights guaranteed by the Constitution of India, can be relied upon by courts in India as facets of those fundamental rights and hence enforceable as such. The conventions ratified by India include the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights, the International Covenant on Rights of a Child (CRC) and the Convention on the Elimination of Discrimination against Women (CEDAW) People's Union for Civil Liberties vs. Union of India, 1997 (3) SCC 433

RIGHTS OF CHILDREN In Sheela Barse vs. Secretary, Childrens Aid Society (AIR 1987 Supreme Court 656)
the Supreme Court gave directions for training of the staff of the Observation Homes, run by Childrens Aid Society and also directed that the Juvenile Court be manned by Judicial Officer with a more sensitive approach oriented outlook with special training. The court while giving general directions felt that appropriate training of functionaries under the statute was necessary to create in them the necessary bias and motivate them adequately to arise to the demand of every situation. The Court held that Children are the citizens of the future era. On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the country. In recent years, this position has been well realized. In 1959, the Declaration of all the rights of the child adopted by the General Assembly of the United Nations and in Art. 24 of the International Covenant on Civil and Political Rights, 1966, the importance of the child has been appropriately recognized. India as a party to these International Charters having ratified the Declaration, it is an obligation of the Government of India as also the State Machinery to implement the same in the proper way..

 In Vishal Jeet vs. Union of India (1990) 3 SCC 318, a public interest petition filed for rehabilitation of girls forced in prostitution, devdadsis and jogins, the Supreme Court directed a multi-disciplinary approach to the problem with the involvement of Social Welfare Department, Law Department, Sociologist, Criminologists, Voluntary Organizations and Womens Organizations. The Court directed the State to evolve and implement Welfare programmes at the national level for the care, protection, rehabilitation of the young fallen victims and to make suggestions of amendment to existing laws for prevention of sexual laws for prevention of sexual exploitation of children.

M.C. Mehta vs State of Tamil Nadu (1996)6SCC756

States to -do the following: (1)A survey would be made of the aforesaid type of child labour which would be completed within six months from today. (2)To start with, work could be taken up regarding those employments which have been mentioned in Article 24, which may be regarded as core sector, to determine which the hazardous aspect of the employment would be taken as criterion. The most hazardous employment may rank first in priority, to be followed by comparatively less hazardous and so on. It may be mentioned here that the National Child Labour Policy as announced by the Government of India has already identified some industries for priority action and the industries to identified are as below: The match industry in Sivakasi, Tamil Nadu. The diamond polishing industry in Surat, Gujarat. The precious stone polishing industry in Jaipur, Rajasthan. The glass industry in Firozabad, Uttar Pradesh. The brass-ware industry in Moradabad, Uttar Pradesh. The hand-made carpet industry in Mirzapur-Bhadohi, Uttar Pradesh. The lock-making industry in Aligarh, Uttar Pradesh. The slate industry in Markapur, Andhra Pradesh. The slate industry in Mandsaur, Madhya Pradesh.

 (3)The employment to be given as per our direction could be dovetailed to other assured employment. On this being done, it is apparent that our direction would not require generation of much additional employment. (4) The employment so given could as well be the industry where the child is employed, a public undertaking and would be manual in nature inasmuch as the child in question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family. (5) In those cases where alternative employment would not be made available as aforesaid, the parent/guardian of the concerned child would be paid the income which would be earned on the corpus, which would be a sum of Rs. 25,000 for each child, every month. The employment given or payment made would cease to be operative if the child would not be sent by the parent/guardian for education. (6) On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make it a better citizen. It may be pointed out that Article 45 mandates compulsory education for all children until they complete the age of 14 years; it is also required to be free. It would be the duty of the Inspector to see that this call of the Constitution is carried out.

 (7) A district could be the unit of collection so that the executive head of the district keeps a watchful eye on the work of the inspectors. Further, in view of the magnitude of the task, a separate cell in the Labour Department of the appropriate Government would be created. Monitoring of the scheme would also be necessary and the Secretary of the Department could perhaps do this work. Overall monitoring by the Ministry of Labour. Government of India, would be beneficial and worthwhile.(8) The Secretary to the Ministry of Labour, Government of India would apprise this Court within one year of today about the compliance of aforesaid directions. If the petitioner would need any further or other order in the light of the compliance report, it would be open to him to do so. (9) We should also like to observe that on the directions given being carried out, penal provision contained in the aforenoted 1986 Act would be used where employment of a child labour, prohibited by the Act, would be found. (10) Insofar as the non-hazardous jobs are concerned, the Inspector shall have to see that the working hours of the child are not more than four to six hours a day and it receives education at least for two hours each day. It would also be seen that the entire cost of education is borne by the employer.

Pashchim Banga Khet Mazdoor Samiti vs State of West Bengal, (1996) 4 SCC 37
The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare to the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life.

Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part-Ill of the Constitution the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution.

FOLLOWING DIRECTIONS ISSUED Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition; Hospitals at the district level and Sub-Division level are upgraded so that serious cases can be treated there; Facilities for giving specialist treatment are increased and are available at the hospitals at District level and Sub-Division level having regard to the growing needs. In order to ensure availability of bed in an emergency at State level hospitals there is a centralised communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment which is required.

Proper arrangement of ambulance is made for transport of a patient from the Primary Health Centre to the District hospital or Sub-Division hospital and from the District hospital or SubDivision hospital to the State hospital. The ambulance is adequately provided with necessary equipment and medical personnel. The Health Centres and the hospitals and the medical personnel attached to these Centres and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain seasons. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot ignored that it is the Constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.

Vellore Citizens Welfare Forum vs Union of India AIR 1996 SC 2715

"Sustainable Development: means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient feature have yet to be finalised by the International Law Jurists.

 The "Precautionary Principle" - in the context of the municipal law means (i) Environment measures by the State Government and the statutory Authorities must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainly should not be used as the reason for postponing, measures to prevent environmental depredation. (iii) The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign.

The Polluter Pays" principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. The Precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution

Some of the salient principles of "Sustainable Development are: Inter-Generational Equity, Use and Conservation of Nature Resources Environmental Protection, Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that"The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development".

Indian Council for Enviro-Legal Action and Ors. Vs. Union of India (1996)3SCC212 The Central Government shall determine the amount required for carrying out the remedial measures including the removal of sludge lying in and around the complex of Respondents 4 to 8, in the area affected in village Bichhri and other adjacent villages, on account of the production of 'H' acid and the discharges from the Sulphuric Acid Plant of Respondents 4 to 8. In case of failure of the said respondents to pay the said amount, the same shall be recovered by the Central Government in accordance with law. The factories, plant, machinery and all other immovable assets of Respondents 4 to 8 are attached herewith. The amount so determined and recovered shall be utilised by the M.E.F. for carrying out all necessary remedial measures to restore the soil, water sources and the environment in general of the affected area to its former state.

On account of their continuous, persistent and insolent violations of law, their attempts to conceal the sludge, their discharge of toxic effluents from the Sulphuric Acid Plant which was allowed to flow through the sludge, and their non-implementation of the Orders of this Court Respondents 4 to 8 have earned the dubius distinction of being characterised as "rogue industries". They have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources and their entire environment - all in pursuance of their private profit. They have forfeited all claims for any consideration by this Court. Accordingly, we herewith order the closure of all the plants and factories of Respondents 4 to 8 located in Bichhri village. The R.P.C.B. is directed to seal all the factories/ units/plants of the said respondents forthwith. So far as the Sulphuric Acid Plant is concerned, it will be closed at the end of one week from today, within which period Respondent No. 4 shall wind down its operations so as to avoid risk of any untoward consequences, as asserted by Respondent No. 4 in Writ Petition (C) No. 76 of 1994. It is the responsibility of Respondent No. 4 to take necessary steps in this behalf. The R.P.C.B. shall seal this unit too at the end of one week from today.

The re-opening of these plants shall depend upon their compliance with the directions made and obtaining of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can apply for directions in this behalf after such compliance. So far as the claim for damages for the loss suffered by the villagers in the affected area is concerned, it is open to them or any organisation on their behalf to institute suits in the appropriate civil court. If they file the suit or suits in forma pauperis, the State of Rajasthan shall not oppose their applications for leave to sue in forma pauperis.

The Central Government shall consider whether it would not be appropriate, in the light of the experience gained, that chemical industries are treated as a category apart. Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinising their establishment and functioning more rigorously. No distinction should be made in this behalf as between a large-scale industry and a small-scale industry or for that matter between a large-scale industry and a medium-scale industry. All chemical industries, whether big or small, should be allowed to be established only after taking into considerations all the environmental aspects and their functioning should be monitored closely to ensure that they do not pollute the environment around them. It appears that most of these industries are water-intensive industries. If so, the advisability of allowing the establishment of these industries in arid areas may also require examination. Even the existing chemical industries may be subjected to such a study and if it is found on such scrutiny that it is necessary to take any steps in the interests of environment, appropriate directions in that behalf may be issued under Section 3 and 5 of the Environment Act, the Central Government shall ensure that the directions given by it are implemented forthwith.

T.N. GODAVARMAN THIRUMULKPAD VS UNION OF INDIA (DATE OF JUDGMENT AIR1997SC1228

The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest: must be understood according to its dictionary meaning. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works and Ors. v. State of Gujarat and Ors. MANU/SC/0049/1986, Rural Litigation and Entitlement Kendra v. State of U.P. [1989] Suppl. 1 SCC 504, and recently in the order dated 29th November, 1996 in W.P.(C) No. 749/95 (Supreme Court Monitoring Committee v. Mussorie Dehradun Development Authority and Ors.).

 In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Specific directions with reference to different states regarding ban on felling of trees All state govts to appoint Expert Committees to Identify areas which are "forests", irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest;

SAMATHA VS STATE OF AP (1997 AIR 3297)

Challenge to mining leases in forests in 5th Schedule areas by Government challenged Held government was non-tribal and hence the prohibition to transfer land to non tribals applied to government too However transfer of the Government land in favour of its instrumentalities (such as APSMDC), in the eye of law, is not a transfer but one of entrustment of its property for public purpose. Since, admittedly, a public Corporation acts in public interest and not for private gain, such transfer stands excluded from the prohibition under para 5(2)(b) of the Fifth Schedule and Section 3(l)(a) of the Regulation, Such transfer or lease, therefore, stands upheld. Grant of mining lease in reserved forest even that belonging to the government in favour of non-tribals held void mining lease in a forest area for non-forest purpose of renewal thereof, without prior approval of the Central Government was in violation of Section 2 of the Forest Conservation Act

Since the Executive is enjoined to protect social, economic and educational interest of the tribals and when the State leases out the lands in the Scheduled Areas to the non- tribals for exploitation of mineral resources, it transmits the corelative above constitutional duties and obligation to those who undertake to exploit the natural resources should also to improve social, economic and educational empowerment of the tribals. As a part of the administration of the project, the licensee or lessee should incur the expenditure for: (a) re-forestation and maintenance of ecology in the Scheduled Areas; (b) maintenance of roads and communication facilities in the Scheduled Areas where operation of the industry has the impact; (c) supply of portable water to the tribals; (d) establishment of schools for imparting free education at primary and secondary level and providing vocational training to the tribals to enable them to be qualified, competent and confident in pursuit of employment; (e) providing employment to the tribals according to their qualifications in their establishment/ factory;

(f) establishment of hospitals and camps for providing free medical-aid and treatment to the tribals in the Scheduled Areas; (g) maintenance of sanitation; (h) construction of houses for tribals in the Scheduled Areas as enclosures; The expenditure for the above projects should be part of his/its Annual Budget of the industry establishment or business avocation/venture. In this behalf, at least 20 per cent of the net profits should be set apart as a permanent fund as a part of industrial/business activity for establishment and maintenance of water resources, schools, hospitals, sanitation and transport facilities by laying roads etc. This 20% allocation would not include the expenditure for reforestation and maintenance of ecology. It is needless to mention that necessary sanction for exemption of said amount from income-tax liability, may be obtained; and the Centre should ensure grant of such exemption and see that these

Narmada Bachao Andolan v. Union of India and Ors., (2000) 10 SSC 664
"229. It is now well settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the Courts are illequipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution..."

 234. In respect of public projects and policies which are initiated by the Government the courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small Section of the society, has to be the concern of a responsible Government. It a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation the court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the court to go into the matter afresh and, in a way, sit in appeal over such a policy decision".

BALCO Employees Union vs UOI, AIR 2002 SC 350

47. Process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority. There is no case made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed. Even though the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the workers rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law.

 Even a government servant, having the protection of not only Articles 14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in service. 88. The decision to disinvest and the implementation thereof is purely an administrative decision relating to the economic policy of the State and challenge to the same at the instance of a busy-body cannot fall within the parameters of Public Interest Litigation. In a democracy it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court. 92. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any stuttered provision or the Constitution. In other words, it is not for the Courts to consider relative merits of different economic polices and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is the Parliament and not the Courts. Here the policy was tested and the Motion defeated in the Lok Sabha on 1st March, 2001.

PUCL VS UNION OF INDIA, AIR1997SC568 The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one's convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.

Prakash Singh vs Union of India http://www.judis.nic.in/supremecourt/qrydisp.aspx

Apex Court directed the setting up of the State Security Commission in each state with both government, police and non governmental representatives as the apex body whose mandate includes laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report thereon for being placed before the State legislature. It also directed the setting up of Police Complaints Authority at both the district level headed by a retired District Judge to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police, allegations of extortion, land/house grabbing or any incident involving serious abuse of authority and at the State level to look into complaints against officers of the rank of Superintendent of Police and above headed by a retired Judge of the High Court/Supreme Court which would take cognizance of only allegations of serious misconduct by the police personnel, including incidents involving death, grievous hurt or rape in police custody.

Challenge to some laws in recent times

Fair procedure - Article 21 of Constitution of India, Sections 3, 4 and 8 of Illegal Migrants (Determination by Tribunals) Act, 1983, Illegal Migrants (Determination by Tribunals) Rules, 1984 and Foreigners Act, 1946 principles of criminal procedure that punishment to be awarded in accordance with fair procedure established by law not applicable to deportation of migrants proceedings to determine illegal migrants not criminal proceedings - foreign illegal migrant not deprived of his life or personal liberty by identification and deportation procedure prescribed under Act of 1946 fair and valid. Act of 1983 made in suppression of all other applicable Acts under Act of 1964 onus to prove citizenship on migrant who claims to be citizen such onus shifted to prosecution under Act of 1983 prosecution cannot prove residence and date of birth, facts exclusivity within the knowledge of migrants new Act deprives Union the right to expel foreigners who violated Acts of 1955 and 1967 Act of 1983 violates Union's duty to protect State's from external aggression under Article 355 Act of 1983 and Order of 1984 declared unconstitutional (Sarbananda Sonowal vs Union of India, AIR2005SC2920)

Naga People's Movement of Human Rights vs Union of India (1998) 2 Supreme Court Cases 109)

Armed Forces Special Powers Act cannot be regarded as a colourable legislation or a fraud on the Constitution. it is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution. Act does not displace the civil power of the state by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the Civil Power. Section 3 of the Act does not confer an arbitrary or unguided power to declare an area as a "disturbed area"- there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union Territory can form an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of the civil power is necessary. Desirable to consult state government

The Powers under Section 4 (a) to (d) and Section 5 on the officers of the armed forces, including a non-Commissioned Officer are not arbitrary and unreasonable and are not violative of the provisions of Articles 14,19 or 21 While exercising powers under Section 4(a), the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order. They shall strictly follow the instructions in the list of "Do's and Don'ts" issued by army authorities which are binding and any disregard thereof would entail suitable action under the Army Act Section 6 in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or a suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. A complaint containing an allegation about misuse or abuse of the powers conferred under the Act shall be thoroughly inquired into

Ashok Kumar Thakur vs Union of India (2008)6 SCC1

Challenge to the 93rd Amendment regarding reservations in private institutions (Article 15 (5) rejected Held that reservation is constitutional in state aided educational institutions Exemption to minority institutions upheld All case law on caste based reservation discussed- caste as a criteria of social and educational backwardness upheld (social backwardness is mainly based on racial, tribal, caste and denominational differences) social backwardness which results from poverty is likely to be magnified by caste considerations. Occupations, place of habitation may also be relevant factors The ultimate object is the eradication of castes and that is the foundation for reservation. Principle of "creamy layer" is applied not as a general principle of reservation but for the purpose of identifying the socially and educationally backward class

How is the PIL Functioning (acc to WB Policy Research Working Paper 5109) Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving?