PS Narasimha (top left), Arvind Datar (top right) and Mahesh Menon (centre down)
PS Narasimha (top left), Arvind Datar (top right) and Mahesh Menon (centre down)

Govt claims must be tested on a stronger basis, scrutiny must be high in PILs: Arvind Datar, PS Narasimha speak on Public Law Lawyering

Referring to the recent 4G Judgment, Datar said, "If the Government says that 2G is sufficient to do all the applications, then you must test it. Find out - can you file a simple GST return on 2G? The answer is no.”

Meera Emmanuel

Senior Advocates Arvind Datar and PS Narasimha recently made pertinent observations on the need to introduce more rigorous standards when it comes to PIL jurisdiction - from looking into the credibility of the petitioner to relying on the submissions made before the Court.

The senior lawyers were speaking during an online discussion hosted by Daksha Fellowship on Wednesday on the theme Public Law Lawyering, which was moderated by Mahesh Menon, faculty at Daksha Fellowship.

Government claims must be tested on a much stronger basis, Datar

While opining that the factual claims made by both the writ petitioners and the Government must be tested on a rigorous basis, Senior Advocate Datar remarked that there is a concern that "what is said by the government should not be easily accepted."

Referring to the Belmarsh case by an English Court and other cases from the UK and the US, Datar pointed out that a principle of strict scrutiny of whatever the State says is followed.

While the question of security versus liberty is a universal and age-old problem, "there should be a greater rigour" in accepting submissions made before the Court, Datar said.

To explain, he took the example of the recent judgment by the Supreme Court of India on the plea to lift restrictions on internet speed in Jammu and Kashmir (the 4G judgment).

"If the Government says that 2G is sufficient to do all the applications, then you must test it. Find out whether - can you file a simple GST return on 2G? The answer is no.”
Datar said.
He added, "Maybe on an extreme level say that let Delhi be at a 2G for three days and then see what happens. If it’s not working, then 2G doesn’t work. So similarly, I think Government claims also must be tested on a much stronger basis. The level of scrutiny must be high, particularly when a large number of people are going to be affected by a statutory rule.

This kind of scrutiny should also be applied before allowing petitioners to approach the top Court invoking Article 32 of the Constitution, Datar said.

"... the petitioner must establish fundamental rights. People just file Article 32 (petitions) for the asking. Very often the courts don’t stop and say, ‘look, who are you? What are your fundamental rights?’"

Civil Courts must be granted power of judicial review, Narasimha

Senior Advocate Narasimha pointed out that the bulk of challenges made in High Courts and the Supreme Court under Articles 226 and 32 of the Constitution concern executive actions such as the failure to give notice or where natural justice principles are not followed.

When questions of fact and law get mixed up in such cases, it was noted that submissions on certain points may prompt a constitutional court to direct that the case be preferred before a civil court instead.

To address this confusion, he queried, “Why can’t all such matters be dealt in Civil Courts? They have the power, they have excellent jurisdiction under the Specific Relief Act, declaratory reliefs as well as injunction reliefs. The statute even prescribes very clearly the locus standi i.e. who can invoke.”

Recalling that civil courts were earlier given such powers during the colonial era, he noted that it is only after Part III of the Constitution (dealing with fundamental rights) came in that the High Court began to be viewed as "one stop shop."

Remarking that this is a wrong approach, Narasimha opined,

“Time has come when we grant our civil courts the power of judicial review. Though they may not be able to interpret the constitution, they may not be able to set aside a statutory provision - nevertheless, civil courts are entitled to restrain an executive action in exercise of judicial review. The powers are ample."
Senior Advocate PS Narasimha

He also pointed out that Article 32 (3) of the Constitution "specifically empowers the parliament to make law to enable any other court to exercise judicial review for enforcement of fundamental rights."

He noted, “This means that the Constitutional visionaries had thought that the time should come when civil courts can review judiciary in administrative action. That will, to a large extent, solve a lot of our problems, where we have cases where fact and law are mixed together.”

On the Court's tendency to make grand declarations of law with no immediate practical effect

Responding to a query on this aspect, Datar observed,

"Obviously, and rightly so, every judge wants to leave behind some great pronouncements. But sometimes what happens is, that you have laid down a great pronouncement but there is no justice to the litigant at all. Maneka Gandhi is a classic case... the High Court could have disposed it of in two sentences."

Similarly, Datar pointed out that in the EP Royappa case, "Ultimately his writ petition was dismissed saying he is challenging Rule 9. They could have disposed of Royappa in 5 minutes. But they gave an elaborate (judgment) of arbitrariness and Article 14."

The same pattern was noticed in the Ramana Shetty case, which was disposed of on the ground of laches. In recent times, such a judgment came in the Anuradha Bhasin case concerning internet restrictions in Jammu and Kashmir.

"... you have laid down elaborate principles that ‘internet is a must’… but at the ground level, what is the benefit? Basically it is a grand theory like Einstein’s unified theory of law or something like that, but of no immediate practical use to anybody", Datar said.
"Only thing is, like Maneka Gandhi, in the future it will help some body."
Datar on the utility of the Anuradha Bhasin judgment

In a lighter vein, Senior Advocate Narasimha added, "lawyers also must take some blame for that. The Judge also indicates sometimes that, sir there is nothing in this case. But then we (lawyers) go on and on, cite 101 judgments, tell them what America has said, what England has said …

Senior Advocates PS Narasimha (L) and Arvind Datar (R)
Senior Advocates PS Narasimha (L) and Arvind Datar (R)

Narasimha also emphasised that just because the Court does not give immediate relief, it should not be that as a matter of principle the Court should not entertain a case.

In this regard, he pointed out that the Court also has a role in interpreting the law and demarcating its application to a particualr set of facts, apart from deciding on the appropriate relief in a particular case.

On discouraging frivolous PILs

Senior Advocate Narasimha noted that a major factor that continues to enable a frivolous litigant to continue approaching the Court is the limited possibility of adverse consequences.

He walks into the court, petition gets dismissed, he goes back and prepares another petition”, Narasimha pointed out.

People rushing to the Supreme Court should be an exception", Datar said, "They must first go to the respective High Courts. Only If it is something pan India they should come to the Supreme Court."

He also added that, in order to discourage PILs that are not genuine, there must be a clear system of costs, with standardised costs.

"It cannot be that they impose costs of Rs 5 lakhs on one and 10 lakhs on another", he noted.

Thirdly, he emphasised that there must be a scrutiny of locus standi to weed out motivated PIL petitioners. "A certain level of judicial scrutiny must be there before opening the doors", he said.

On the Court's "Houdini Trick" of adjourning matters

Datar recalled the saying by former Prime Minister PV Narasimha Rao that "Not taking a decision is also a decision", when the topic of Court adjournments was raised for discussion.

"One senior lawyer called in the Houdini trick - you don’t take a decision and just pass it on", Datar went on to remark. He added, "Sometimes it may be necessary because tempers are very high and the atmosphere is very vitiated. A cooling off period may be there, it may be worthwhile to postpone it at a particular time in a particular situation. But my personal view is on habeas corpus pleas, it is absolutely imperative that it is taken up at the very, very earliest."

A dangerous tendency in India, Datar observed, was "that the criminal justice system is ‘jail him first and try him later’. That is a very unfortunate part. If it's a sensitive or sensational matter, the odds of your getting bail are almost nil. We have to do some serious thinking on this particular point, not only in courts but also as a matter of policy."

He noted further that sometimes, "A completely misleading report is leaked to the press and they make allegations later not found true. But you are pronounced guilty, as far as society is concerned, you are condemned. Who cares what happens after two years?”

On advice to young lawyers interested in Public Lawyering

“Have one area of specialisation. And then do public lawyering as a kind of pro bono thing where you hone your constitutional skills. I think it is very difficult to sustain a living only on public law", Datar said, adding that this is what he did as well.

"I had a good tax practice and I used to do all these PILs - I started appearing before the Green Bench in those days, in environmental matters, I did tribunal cases for the Madras Bar Association - that was a huge boost to myself personally also, because I learnt a lot in the process. All that was completely pro bono .. Two years ago, almost the entire year was a pro bono year - you had Aadhaar, you had the privacy case, you had the Section 377 (IPC) case, the armed forces - all those were pro bono", Datar said.
"So I’d tell a young lawyer, have an area of practice that is your bread and butter and keep public law as the jam - food for the soul.”
Arvind Datar

Apart from agreeing with Datar on this aspect, Narasimha also added that, "A public lawyer must read our freedom movement. A public lawyer must know the history of our country."

He explained,

"When you go to the court and contest in the context of your rights or the powers of the State, what happens is that you go to fundamentals - where we stand, what we are, what our identities are. When you raise questions like that, your history and identity become very important. And you can’t read them overnight when you are arguing a case. "

Watch the full session:

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