Suo motu cognizance: A panacea or a predicament?

Coronavirus and the plight of the walking migrants has definitely evoked a feeling of indignation, hurt and piety in each one of us. Apart from the Central and state governments, a large number of voluntary organisations are doing their bit.

At the same time, our courts are being proffered unsolicited advice by various quarters. It appears that this section of society believes that the courts have some magic wand, and that the plight of the migrant workers and the suffering masses will come to an end if the courts were seen to be ‘proactive’, summon government officials, reprimand them for their perceived acts of omission and commission, seek weekly and fortnightly reports, and generally sermonize the Executive wing of the State.

The Court is incessantly reminded of its constitutional obligation of checks and balances, and not to be a passive spectator. I am afraid these worthies have not understood either the principles of separation of powers, or of judicial review; what is justiciable and what is non-justiciable; and the practice of judicial restraint in complex issues of governance.

It is with these prefatory comments that I wish to pen down my thoughts about suo motu actions taken by different High Courts in our country.

Growth of Suo Motu Cognizance in India

Until the advent of the PILs in India, the moniker was largely used in reference to the contempt references and statutory review jurisdiction of the courts. It has its origin in the concept of ‘Epistolary Jurisdiction’, and draws sustenance from Article/s 32 and 226 of the Constitution of India. For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of a fundamental right should personally approach the court, which can itself take cognizance of the matter and proceed suo motu.

The concept gathered steam only in the late 1990s with the Supreme Court taking cognisance of the air pollution in Delhi, and the High Courts joining the fray on a number of issues such as strike by hospital employees, smuggling of stone idols (AIR 1999 Ori 53), and the like.

The Karnataka High Court voiced its concern about the lack of a procedure governing the entertaining of PIL cases suo motu by the judges. A full bench of that Court held that,

“No Judge of the High Court can claim to himself any inherent power to take cognizance of a particular cause either on being moved or suo motu unless it is assigned by the Chief Justice to the Judge concerned”.

Suo motu actions are not peculiar to India, and are particularly rampant in the neighbouring theocratic countries, where there is near total absence of rule of law, democracy, and the press functions under severe constraints.

However, elsewhere in other common law countries, one comes across either too little traces of it or none at all. In Canada, the courts are forbidden from taking such notice unless expressly permitted by a statute. The concept is largely unknown in Australia and South Africa. In the United States and Brazil, the courts have indirectly exercised such powers by broadening and expanding the scope of petitions-enquiries before them.

Recent instances of Suo Motu intervention by different High Courts

COVID-19 has seen quite a few donning the hat of a ‘vigilante’, and guiding the government and the courts on how to battle the pandemic. As a result, there has been manifold increase in the number of PILs being filed in the Supreme Court and High Courts. Concomitantly, the courts have also stepped up, taking suo motu cognizance of the pandemic.

• The High Court of Judicature at Madras, vide order dated May 15 in AP Suryaprakasam v. Superintendent of Police & Ors, has suo motu impleaded the Union and the Government of Tamil Nadu as party respondents, and sought an action taken report on parameters such as the number, nativity, status and conditions of migrant workers stranded in each state/union territory in India and planned measures for their transportation, financial assistance and job opportunities. Taking note of the media reports, the Court observed that, “it is a pity to see the migrant labourers walking for days together to reach their native places …”.

• In yet another case titled Suo Motu v. State of Gujarat & Ors, the High Court of Gujarat at Ahmedabad, vide order dated May 11, makes specific reference to the news items published in the two leading newspapers of the state, which the Court found to be “very disturbing, painful and heartbreaking”. The Division Bench was also pleased to observe, “We would not like to interfere with the day­ to­ day functioning of the State Government in this regard, but, at the same time, we should ensure that that the situation does not go from very bad to worst.”.

• Further, the High Court of Karnataka at Bengaluru, vide order dated May 12 in Mohammed Arif Jameel v. Union of India, sought response from the state and Central government on the issue of transportation of migrant workers.

• Close on the heels came the order of the High Court of Andhra Pradesh at Amravathi dated May 15 in K Ramakrishna v. Union of India & Ors, wherein certain supplemental measures were issued to the state government, numbering seven in all, to be taken on priority and with immediate effect. Incidentally, the Supreme Court had dismissed an application seeking urgent directions for identification and rehabilitation of walking labourers.

• Another case of suo motu cognizance that comes to my mind is the one dealt with by the High Court of Judicature at Allahabad regarding banners placed on the roadside in the city of Lucknow. The High Court noted that the matter has been “undertaken by the court at its own”, and that based on several news items in the newspapers reporting the installation of banners, the Registry of the High Court was directed by the Chief Justice to register a petition and advance notice was directed to be issued to the Commissioner of Police and District Magistrate, Lucknow. The Court noted in its order “where there is gross negligence on part of public authorities and government, where the law is disobeyed and the public is put to suffering and where the precious values of the constitution are subjected to injuries, a constitutional court can very well take notice of that at its own.”.

• The recent gas leak at Vizag, which resulted in the unfortunate death of some persons and injury to several others, was taken cognizance of by three different judicial fora: firstly, by the High Court of Andhra Pradesh; secondly, by the National Green Tribunal, New Delhi; and thirdly, by the National Human Rights Commission, New Delhi. Independently, these fora have issued interim directions, and formed committees to enquire into the matter and file compliance-fact finding report.

Concluding remarks and the way forward

Without doubt, the courts have acted with the best of intentions and with a view to alleviate suffering and plight of the unfortunate victims. However, one could discern in some of the cases a predilection towards greater judicial intervention. It is also plain that when the courts take notice of a certain state of affairs based on newspaper reports, it suggests they feel very strongly about such matters and issues.

From a purely legal angle, one can say that suo motu jurisdiction is akin to a situation wherein the complainant/petitioner itself becomes the judge and the jury. To some extent, it also undermines the confidence of the people in the elected government, be it Central or state. The courts should not be seen to be too keen to dabble in the Executive domain.

The Division Bench of the High Court of Jammu & Kashmir, speaking through Chief Justice Gita Mittal, demonstrated remarkable restraint in the Darbar Move Matter, and whilst only ‘ringing the bell’, deferred the task to Executive wisdom.

Incidentally, there are several judgments of the Supreme Court where the Court did not appreciate the filing of PIL petitions on the basis of newspaper reports. It was noticed by the Apex Court in Kushum Lata v. Union of India that,

“A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained.”.

It is also debatable as to what extent public interest is subserved if the officials who are enjoined to ensure and look after law and order, and health of the citizenry, are made to rush to the offices of lawyers to file affidavits and status reports, particularly in these difficult times. Suo motu cognizance can definitely be taken when the matter concerns the dignity of the court, contempt of court, and/or violation of any order or judgment of the Court.

But whether such jurisdiction should be exercised in matters of day to day governance - the extent and subject-matter of such jurisdiction, and rules and regulations governing the same – these are some of the issues which are yet to be settled.

The author is an Advocate based out of New Delhi appearing in various courts, including the Supreme Court of India. He can be reached at abhishek_1509@hotmail.com.