Debriefed: The effectiveness of Suo Motu PILs taken up by the Supreme Court of India

The Supreme Court of India, since the announcement of the COVID-19 lockdown, has had to weather an avalanche of criticism for its handling of matters filed on behalf of those who suffered the most: the migrant labourers.

The Court initiated suo motu proceedings in In Re: Problems and Miseries of Migrant Labourers on May 26, nearly two months after the lockdown began. This inordinate delay, according to advocate Alakh Alok Srivastava, whose petition on the same issue the Supreme Court had earlier disposed of, would make the entire case infructuous, despite the good intentions of the Court.

In this edition of Debriefed, we seek to delve into the recent history of cases taken up suo motu by the Supreme Court and their effectiveness.

There are six, to be precise. They are:

1. In Re: Contagion of Covid 19 Virus in Prisons: The Bench of Chief Justice of India SA Bobde and Justice L Nageswara Rao, which began hearing the case, underlined the difficulty of social distancing in our overcrowded prisons and remand homes where juveniles are lodged. But the good intentions of the bench did not yield the desired results.

On April 13, however, the Bench had to dilute its order because of the Attorney General's submission that release and transportation of prisoners would itself result in transmission of the disease. The Bench, therefore, directed quarantining of infected prisoners, whether already released or not.

Smita Chakraburtty, founder of NGO Prison Aid and Action Research gave a clearer picture of what happened on the ground.

“The states misinterpreted the Court’s directions. The Supreme Court’s order was neither suggestive nor restrictive. So, initially, many prisoners were released if they had completed seven years; but after the Court clarified, the release stopped. The problem is our criminal justice system is not prepared to address the pandemic.”

2. In Re: Regarding Closure of Mid-Day Meal Scheme: In this case, the Bench of the Chief Justice Bobde, and Justices BR Gavai and Surya Kant, was concerned with the closure of schools and anganwadis which would deprive nutritional food to children and lactating and nursing mothers. The Bench in this case held only one hearing on March 18, although it is an appropriate case for “continuing mandamus” of the Court.

3. In Re: Cognizance for Extension of Limitation: This is one case where the Court’s timely intervention was justified to ensure that lawyers and litigants did not have to physically file proceedings in courts and tribunals across the country. The Bench of the CJI Bobde and Justices L Nageswara Rao and Surya Kant, on March 23, ordered that the period of limitation in all pending cases would stand extended with effect from March 15 till further orders.

Although Justice G Jayachandran of the Madurai Bench of the Madras High Court misinterpreted this order to deny default bail to an accused, it was an aberration, and was set aside by the Supreme Court subsequently.

4. In Re: Contagion of Covid 19 Virus in Children Protection Homes: In this case, a bench of Justices LN Rao and Deepak Gupta swung into action on April 3 to protect children and issued a slew of directions to prevent the spread of COVID-19 in Child Care Institutions. On June 11, another Bench of Justices Rao, Krishna Murari and S Ravindra Bhat took note of the news that 35 out of 57 children in a protection home in Chennai were infected with COVID-19 and sought a report from Tamil Nadu government on the reasons for the same.

5. In Re: Guidelines for Court Functioning Through Video Conferencing During Covid 19 Pandemic : The Court, in this case, on April 6, issued a slew of directions to ensure robust functioning of the judicial system through the use of video conferencing during the pandemic.

6. In Re: The Proper Treatment of Covid-19 patients and Dignified Handling of Dead Bodies in the Hospitals etc. The Bench of Justices Ashok Bhushan, Sanjay Kishan Kaul and MR Shah, on June 12, took note of the media reports about horrific scenes from LNJP hospital, New Delhi, and about COVID-19 patients not getting admission in hospitals despite availability of beds in the capital. The Bench directed the constitution of an expert team of doctors in every state and union territory to continuously monitor the preparedness of the hospitals catering to COVID-19 patients. While certain directions are indeed welcome, the overall effect of such intervention remains unclear so far.

In Joint Secretary, Political Department, Shillong v High Court of Meghalaya through Its Registrar, Shillong, a Bench of Justices Dipak Misra and SK Singh held in 2016 that the Supreme Court and the High Courts can initiate public interest litigation under their “suo motu” powers, to ameliorate the conditions of a class of persons whose constitutional or otherwise lawful rights are affected or not adequately looked into.

In Divine Retreat Centre v State of Kerala and others, (2008) the Supreme Court set aside the order of a Kerala High Court Judge taking up suo motu an anonymous petition sent to him, without placing it before the Chief Justice for his administrative decision.

Public interest litigation has been initiated very rarely by suo motu exercise of jurisdiction by the Supreme Court. The earliest use was in 1979, when the Court took up the case of ‘horrific blinding’ of 31 undertrial prisoners by the Bhagalpur police and awarded compensation for violation of right to life and liberty. Although the Court frequently adopts the suo motu route to take up contempt petitions, both civil and criminal, it is only recently that suo motu writ petitions began to be categorised separately. Over the past few years, the number of such petitions has always been in single digits.

Recent examples of suo motu cases include In Re: Outrage as Parents End Life After Child’s Dengue Death (2016); In Re: Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu v Union of India (2002); and In Re: Indian Woman says gang-raped on orders of Village Court published in Business and Financial News (2014).

In the Dengue case, the Bench of justices Madan B Lokur and Deepak Gupta found that the state governments have not set up the statutory bodies, as required under Section 5 of the Environment (Protection) Act, 1986. The Bench also took note of non-compliance with the timelines for implementation of the Rules, which came into force in 2016, for identification of suitable sites for setting up of solid waste processing facilities. Despite the noise and fury witnessed during the hearings by the Benches presided by Justice Lokur, after his retirement on December 30, 2018, there has been no effective hearing in the case since then.

In the Asylum Fire case, a five-judge ench of the Supreme Court headed by then CJI AS Anand took note of a news item about a gruesome tragedy in which more than 25 mentally challenged patients housed in a mental asylum in Tamil Nadu were charred to death. After the Court’s initial concern yielded the required results in the form of corrective steps by both the Centre and the Tamil Nadu government, the court continued to hear the larger issue of human rights of inmates of mental asylums in the country. The Court found gross negligence on the part of the state governments in implementing the Mental Health Act, and other related laws.

After being repeatedly listed before the Court in subsequent years, the matter was finally disposed of on August 21, 2017 by the bench of then CJI JS Khehar and Justice DY Chandrachud.

In 2009, in Destruction of Public and Private Properties v. State of AP and Ors., suo motu proceedings were initiated by the Supreme Court following reports of various instances of large scale destruction of public and private properties in the name of agitations, bandhs and hartals. Two committees were appointed, one headed by retired judge of the Supreme Court, Justice KT Thomas and the other by eminent advocate, Fali Nariman. The Court accepted the recommendations of these committees and issued certain guidelines, but they have had only limited impact.

In In Re: Indian Woman says gang-raped , the Bench of then CJI P Sathasivam, and Justices SA Bobde and NV Ramana, took note of the news item relating to the gang-rape of a 20-year-old woman in West Bengal on the orders of a Khap Panchayat as punishment for having relationship with a man from a different community and sought a report from the District Judge. The Bench held that an inherent aspect of Article 21 would be the freedom of choice in marriage. The Bench also directed the state government to pay the victim a compensation of at least Rs.5 lakh in addition to the payment of fine under the IPC. The case became a key precedent for victim compensation and prevention of crimes committed by Khap Panchayats.

Budhadev Karmaskar v. State of West Bengal was a criminal appeal decided by a two-judge bench of Justices Markandey Katju and Gyan Sudha Misra in 2011. This was a case of brutal murder of a sex worker. Relying on the testimony of the eye witnesses in the case which corroborated the medical evidence, the Bench dismissed the appeal of the accused. The Bench strongly felt that the Centre and the states, through Social Welfare Boards, should prepare schemes for rehabilitation all over the country for physically and sexually abused women, as they also have a right to live with dignity under Article 21 of the Constitution.

The Bench thus used its suo motu powers and directed the Central and state governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities.

The latest hearing in this case took place on February 27, when a Bench of Justices LN Rao and Deepak Gupta recorded the Centre’s submission that a group of Ministers has been constituted to examine two draft legislations. The GoM will also consider the report of the committee, appointed by the court, the Centre told the Bench.

Nine years down the line, despite the committee appointed by the Court producing seven interim reports, and one final report in 2016, an outcome is yet to see the light of the day. The report of the committee itself is not in public domain, because the Court is yet to take a view on it.

In Re: Inhuman Conditions in 1382 prisons is another case, registered by the Supreme Court in 2013 and is still being monitored under the continuous mandamus of the Court. It was initiated on the basis of a letter received by the Supreme Court from the former CJI RC Lahoti, on four issues, namely, overcrowding in prisons; unnatural deaths of prisoners; gross inadequacy of staff; and the available staff being untrained or inadequately trained.

The Court has been passing several directions in this pending case from time to time. On September 15, 2017, the Bench of Justices Lokur and Deepak Gupta requested the Chief Justice of every High Court to register a suo motu public interest petition with a view to identifying the next of kin of the prisoners who have admittedly died an unnatural death.

On December 13, 2018, the Bench of Justices Lokur, S Abdul Nazeer and Deepak Gupta entrusted further consideration of the issues to a committee headed by former Judge, Justice Amitava Roy. The Court is yet to consider the committee’s preliminary report, and the response to it from the Centre and the states.

In Re: Indian Express Newspaper Report dated 10/4/2013 titled Women Cops put Minor Rape Victim in Lock-Up was heard and decided by the Bench of Justices Lokur and UU Lalit on November 6, 2015. In this case, a ten-year-old girl who had been raped was kept in a lock-up when she went to file a complaint in Uttar Pradesh. The Bench initiated the suo motu proceedings in order to monitor the progress of the steps taken by the state government pursuant to the incident. The Bench directed the Director General of Police of the state in August 2015 to circulate the guidelines to be followed in such situations, and inform all the police stations about the pendency of two criminal trials initiated against errant police officers pursuant to the incident.

Satisfied that the state government is looking into the matter “with due earnestness”, the Bench transferred the case to the Allahabad High Court to ensure the payment of compensation to the victim, and taking of necessary steps to tone up the administrative requirements.

In Re: Prajwala Letter dated 18.2.2015 videos of sexual violence and recommendations is another case, which hit headlines several times during the tenure of Justice Lokur. In his last order on December 11, 2018, he had directed the Centre to frame the necessary guidelines and implement them within two weeks so as to eliminate child pornography, rape and gang rape imageries, etc. The case, which is pending, has not been heard since.

Last year, three of the four suo motu civil writ petitions initiated by the Supreme Court pertained to environment: In Re felling of trees in Aarey Forest (Maharashtra), alarming rise in air pollution in Delhi, and acute air pollution in Delhi. Of the four suo motu criminal writ petitions, one pertained to alarming rise in child rapes, and the other dealt with reform of criminal justice system while dealing with sexual offences. All these remain inconclusive.

In 2017, the Supreme Court disposed of a suo motu writ petition which it initiated in 1994 and had been hearing since then by transferring it to the National Green Tribunal, in order to avoid parallel hearings of the same controversy. In Re: Networking of rivers, which is an offshoot of this case, was initiated with a view to deal with the paradoxical situation of floods in one part of the country to droughts in other parts. Although the Court had given a detailed judgment in this case in 2012 directing setting up of a committee to oversee interlinking of rivers, experts differ whether the Court ought to have intervened in this case at all.

In Re: Matter of Great Public Importance touching upon the independence of Judiciary – Mentioned by Shri Tushar Mehta, Solicitor General of India initiated by a Bench of Justices Arun Mishra and Sanjiv Khanna on April 20 last year will probably be judged by history as a frivolous one. Set up by then CJI Ranjan Gogoi himself to hear the allegations of sexual harassment against him by a former staffer (who has since been reinstated), the case is still pending, with the Court yet to find time to consider the inquiry report submitted by the former Judge of the Court, Justice AK Patnaik on the larger conspiracy involving the allegations against Ranjan Gogoi, now a Member of Parliament.

With Justice Deepak Gupta, a member of the three-Judge bench hearing this case having already retired from the Court without seeing a copy of the report, there is less likelihood of the case reaching its logical culmination. Justice Arun Mishra, who last presided the bench on April 25 last year, is retiring on Setpember 2 this year, while the third Judge on the bench, Justice Rohinton Fali Nariman will retire on August 12 next year. The ‘larger conspiracy’ to be unravelled by this case, it appears, will remain a mystery.

The record of the Supreme Court in taking the suo motu writ petitions to their logical culmination may well deserve a separate and deeper probe by researchers.