Hands off approach to PILs, COVID-19, and more: The Delhi High Court in 2020

In 2020, the Delhi High Court was often seen exercising a “hands-off” approach in matters of policy and law-making.
Hands off approach to PILs, COVID-19, and more: The Delhi High Court in 2020
Delhi High court, 2020PILs

As the legal fraternity debated the incessant filing of petitions by "public spirited persons" and law students before the Supreme Court this year, the neighbouring constitutional court, the Delhi High Court, witnessed another year of caution and restraint in the sphere of public interest litigation.

Even during a pandemic-hit year, the High Court reiterated, time and again, that its jurisdiction under Article 226, especially in matters of PILs, was extraordinary and could not be invoked in a casual fashion.

Reinforcing the constitutionally mandated division of powers among the Judiciary, the Executive and the Legislature, the Delhi High Court was often seen exercising a “hands-off” approach in matters of policy and law-making.

Courts cannot create law

"If there is a law, the Court can certainly enforce it; but Court cannot create a law or policy and seek to enforce it”, the High Court emphasized as it dismissed a PIL for payment of risk and hardship allowance to health workers amid COVID-19.

If there is a law, the Court can certainly enforce it; but Court cannot create a law or policy and seek to enforce it.
Delhi High Court

The Court acknowledged that although health workers were doing a commendable job during the pandemic, the Constitution of India did not permit it to direct or advise the Executive in matters of policy or sermonize qua any matters within the sphere of Legislature.

Delhi High court, 2020
COVID-19: Delhi HC dismisses plea for payment of risk and hardship allowance, additional salary to health workers

For similar reasons, a PIL seeking directions for an immediate lockdown in the national capital was turned down by the High Court.

A plea challenging "unreasonable, arbitrary" compensation announced for riots victims was also dismissed for being a matter of policy of the government.

As a matter of practice, the High Court encouraged PIL petitioners to vent their grievances to the authorities in the form of representations, instead of knocking on the Court’s door at the first instance.

A PIL seeking criminal action against Twitter for allegedly promoting the Khalistan Movement was turned down by the High Court after it found that the petitioner had not first made a representation to the Central government.

Sieving bogus PILs

Throughout the year, the High Court attempted to maintain the strictest standards when it came to judging the "public-spiritedness" of PIL petitioners before it.

Finding that the petitioner in a challenge to Section 4 of the Dissolution of Muslim Marriages Act, 1939 was the same person who had appeared before it in another PIL concerning army personnel, the Court called for an affidavit disclosing who the petitioner was.

In another matter, it directed a practising lawyer-cum-social worker to be "more careful in future" while filing petitions as PILs and asked that the present order be enclosed with all future PILs undertaken by her.

Justices Hima Kohli and Subramonium Prasad
Justices Hima Kohli and Subramonium Prasad

Calling out persons for filing "blackmailing type of PILs", the High Court did not shy away from imposing heavy costs on PIL petitioners.

“Everyone is a champion of bogus PILs, petitioners must come with homework. Why don't you come with a PIL on persons not paying taxes?”, the High Court often echoed.

“Everyone is a champion of bogus PILs, petitioners must come with homework.”
Delhi High Court

Rs 25,000 costs were imposed on a PIL petitioner for pleading illegality of a construction, without any cogent evidence or minimal diligence. Another PIL which was based on a newspaper report was dismissed with costs of Rs 20,000.

Similarly, Rs 50,000 costs were imposed on a petitioner seeking financial assistance of Rs 70,000 crore from the Central government for the implementation of his project on maintaining a clean and healthy environment.

No charity in law

During the course of 2020, the High Court also reinforced certain legally accepted principles while dealing with PILs. It refused to entertain a PIL seeking financial aid and food for sex workers and the LGBT community for lack of groundwork.

A PIL for waiving off the rent of tenants during the pandemic was turned down by the High Court, which opined that charity beyond law was an injustice to others.

A plea for the inclusion of advocates under the Micro, Small & Medium Enterprises (MSME) Act was dismissed after the High Court observed that PIL was for the downtrodden and not for lawyers who were well-equipped to espouse their own causes.

A law student's PIL seeking fee concession was rejected on the ground that concession was not a matter of right. It was also held that PILs could not be filed merely on account of non-acceptance of suggestions by superior officers.

Delhi Riots cases

The High Court, however, did not refrain from taking the authorities to task and passing significant orders in causes that needed immediate intervention.

Significant orders and directions were passed by the High Court in a PIL preferred in the aftermath of the riots in the North-East area of the national capital in the month of February 2020.

"Every victim must be visited by the highest State functionary. Those families which has lost members must be assured", the High Court ordered as it cautioned the authorities to remain alert so that the carnage caused during the 1984 anti-Sikh riots was not repeated.

Delhi High court, 2020
Delhi Riots: We should never allow another 1984, Justice Muralidhar; Delhi HC passes directions in plea for safe passage for injured
Delhi Riots
Delhi Riots

Not only were directions passed for the safe passage of the injured, night Magistrates were also designated for granting urgent relief. The Delhi government was also asked to ensure setting up of shelters for those displaced.

Very shortly after passing orders to this effect, Justice S Muralidhar would find himself grabbing headlines for different reasons.

PILs for a cause

As the pandemic crippled the city, the High Court passed directions to push the Executive to work towards the protection of domestic violence victims, accommodation and well-being of outstation AIIMS patients, distribution of food grains to poor during the lockdown, cremation of those who died on account of COVID-19, ensuring beds in hospitals, and releasing salaries to doctors in MCD hospitals, among others. These orders were passed in PILs as well as suo motu matters.

A PIL seeking extension of financial help to advocates during the COVID-19 pandemic was also monitored by the High Court. The High Court was informed by the Bar Council of Delhi that it disbursed more than Rs 8 crore to approximately 16,000 advocates.

Holding that the digital divide violated Right to Education Act and Articles 14, 20, 21, the High Court, while disposing of a PIL, directed private unaided schools in the national capital, as well as Kendriya Vidyalayas, to provide gadgets to students from economically weaker sections of society for online classes.

By way of a PIL, the High Court also kept a close watch on the “COVID-19 dragon” and passed regular orders in relation to the status and extent of testing in the national capital.

Hospital COVID-19 (Representative Image)
Hospital COVID-19 (Representative Image)

The High Court did not shy away from pulling up the Delhi government for "throwing all caution to the winds" or failing to keep with the minimum testing requirements.

Directions were also been issued to the Delhi government to formulate a Standard Operating Procedure for addressing post-COVID health complications.

The High Court also allowed residents to get themselves tested through RT-PCR for COVID-19, at their own expense, without producing a doctor's prescription.

PIL by students, for students

Another significant PIL filed this year was in relation to Delhi University’s online open book examination (OBE) for its final year students.

While the PIL initially concerned itself with facilities for students with disabilities, the scope of the Court’s enquiry was soon expanded to the varsity’s capability to hold the online examination after the dates were deferred several times.

“Have some empathy for students”, the High Court told the University.

Delhi High court, 2020
Have some empathy for students: Delhi HC directs Delhi University to file affidavit on how and when final year examination will be conducted

A close watch was maintained on the varsity's preparedness to conduct the online examination, timelines given in relation to the declaration of results, and issuance of comfort letters to foreign universities. Directions were even issued to the Indian Railways to ensure confirmed seats for students suffering from disabilities who were travelling to the city for the second phase of OBE.

COVID-19 and law

The High Court also passed several important judgements and orders to tackle the unprecedented COVID-19 pandemic.

It held that Reserve Bank of India (RBI) circulars issued to mitigate the resultant financial disruption were not applicable to defaults that occurred before pandemic.

It also held that every breach or non-performance could not be justified or excused merely on the invocation of COVID-19 as a force majeure condition. The High Court also refused to allow suspension of rent on account of force majeure during the COVID-19 lockdown.

The life of all existing interim orders, civil and criminal, was extended by the High Court from time to time. It also ruled that no separate petition under Section 29A of the Arbitration & Conciliation Act, 1996, was required to be filed in cases where the time limit for passing of an arbitral award expired during the COVID-19 lockdown.

In another significant development of the year, the High Court took up the issue of upgradation of infrastructure and internet facilities in the district courts.

Following orders pulling up the Delhi government for its indifferent approach and for making the lower judiciary run from pillar to post, the AAP government sanctioned over Rs 18 crore for several proposals in relation to procurement of routers, NAS devices, staff recruitment, WebEx links etc.

Transfers, retirements, and new additions

In the past year, the High Court welcomed Justice Subramonium Prasad from the Madras High Court and bid adieu to Justices Chander Shekhar, GS Sistani, IS Mehta, AK Chawla and Brijesh Sethi, who demitted office on superannuation. Justice Sangita Dhingra Sehgal resigned from her post as a Delhi High Court judge.

Routine transfers would also become the subject of controversy, with Justice Muralidhar's transfer to the Punjab & Haryana High Court being notified just days after he pulled up the authorities in the Delhi Riots case.

Justice Muralidhar
Justice Muralidhar
Delhi High court, 2020
"When justice has to triumph, it will triumph", Justice S Muralidhar at Farewell ceremony in Delhi High Court

As the city slowly began to recover from the effects of the pandemic, graded physical hearing was resumed at the High Court premises from September 1 onwards. To make up for the loss of court working hours due to COVID-19 lockdown, the High Court also cancelled this year's summer break.

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