The petition, which has been instituted under Article 226 of the Constitution, seeks to challenge the constitutional validity of a part of sub-rule (3-A) of Rule 1 of Chapter XXII of the Rules of the Court, which has been framed by this Court, after the judgment of the Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal & Ors.1 for governing the filing of petitions in public interest. Sub-rule (3-A) was introduced with effect from 1 May 2010 and reads as follows:
"(3-A). In addition to satisfying the requirements of the other rules in this Chapter, the petitioner seeking to file a Public Interest Litigation, should precisely and specifically state, in the affidavit to be sworn by him giving his credentials, the public cause he is seeking to espouse; that he has no personal or private interest in the matter; that there is no authoritative pronouncement by the Supreme Court or High Court on the question raised; and that the result of the Litigation will not lead to any undue gain to himself or anyone associated with him, or any undue loss to any person, body of persons or the State."
2. The petitioner has challenged a portion of this rule. The relief which has been sought, is thus:
"Issue a writ, order or direction in the nature of certiorari striking down "or any undue loss to any person, body of persons or the State" from sub-rule (3-A) of Rule 1 of Chapter XXII of the Allahabad High Court Rules and declaring it as ultra vires."
3. The petitioner is aggrieved by that part of sub-rule (3-A) which requires that a petitioner seeking to file a public interest litigation, must state on affidavit that the result of the litigation will not lead to any undue loss to any person, body of persons or the State.
4. The submissions, which have been urged before the Court, are that (i) the decision of the Supreme Court in Balwant Singh Chaufal (supra) does not contain any guideline or rule of the nature that is questioned in these proceedings; (ii) save and except for the Kerala High Court, such a requirement has not been introduced in the rules of other High Courts; (iii) the expression 'undue loss' has not been defined and is, hence, vague; (iv) every petition under Article 226 of the Constitution is bound to result in a loss to one of the litigating parties and a gain to the other, and in a petition which is filed against the State or its instrumentalities, a loss would be sustained by the State, if its action is struck down; (v) there was no need for the High Court to frame the rule in question since, if a petition is frivolous, it is open to the Court, in the exercise of its discretionary jurisdiction, to dismiss such petition; and (vi) the operation of the rule would result in a deprivation of the right of a public interest litigant to file a writ petition.
5. The genesis of sub-rule (3-A) of Rule 1, is that the process of the Court should not be abused by filing petitions ostensibly in public interest, though actuated by oblique motives or for extraneous purposes. Public interest litigation, in our country, emerged as an instrument of espousing genuine public causes where persons, on whose behalf the litigation is instituted, suffer from a disability, primarily of a social or economic nature which precludes such a person or class of persons from seeking access to justice2. As the evolution of public interest litigation in the country shows, petitions were brought on behalf of bonded labourers3, under-trial prisoners who are deprived of their fundamental rights4, persons who are differently abled5 or where there was a serious complaint of custodial death6 or torture in police custody7. Such petitions were basically intended to protect the rights of disadvantaged sections of society who, either through years of social oppression or economic deprivation, were unable to gain access to justice. In some cases, the deprivation of liberty may have resulted from a lawful order of a Court convicting an accused of a crime but the inhuman conditions of detention led the Court to invoke the jurisdiction in public interest. In other cases, for instance, those involving under-trial prisoners, where a presumption of innocence applies and an order of conviction is yet to be passed by the Court of competent jurisdiction, recourse was taken to the jurisdiction in public interest on behalf of those who are unable to complain of the inhuman and barbaric conditions in which they have been held, pending trial. The underlying feature in all such cases was that a genuine public cause was being espoused on behalf of an individual or a group of individuals who were unable to pursue their own cases either due to poverty, illiteracy, ignorance of rights or a disability under which they laboured. As public interest litigation became a powerful tool or instrument for the protection of social and economic rights, the reach of Article 21 of the Constitution was also expanded. Article 21, which protects every person against deprivation of life and personal liberty except according to the procedure established by law, was widened by judicial interpretation to comprehend procedure that was just, fair and reasonable8, as well as a new range of substantive rights, such as the right to a clean environment9, right to information10, right to public health11 and right to free elementary education12. In cases, for instance, involving environmental harm, the intervention of the Court in public interest was warranted because the environment, which sustains life, would find no protection, if the regulatory authorities, which were vested with the duty to protect the environment, failed to discharge their obligations and were held not to be accountable to statutory and constitutional norms. In the context of protecting the environment, the Supreme Court evolved principles, such as the precautionary principle13, the polluter pays principle14 and the public trust doctrine15.
6. In more recent cases, the jurisdiction in public interest has been exercised to bring transparency and accountability in public governance16. When issues of corruption or the criminalisation of the public realm have been brought before the Court, the issues have to be addressed in terms of the violation of constitutional and statutory norms17. The Court does not create norms or the law but demands enforcement of constitutional and statutory normative principles. This, in a significant sense, is an enforcement of structural due process in the sphere of governance. Structural due process is founded on enacted law and on the interface between the constitution and law. The lines between law and society may blur on the margins but drawing the balance is the ultimate function of judicial craftsmanship.
7. The underlying purpose has always been to ensure that genuine public issues are duly protected by the liberal invocation of the jurisdiction of the writ court. Public interest litigation essentially relaxed the rules of standing or locus standi18. In conventional litigation, only a person who has a personal interest in a proceeding or in the relief which is sought, can approach the Court. Public interest litigation relaxed this rule of standing because, when a person brings a petition in public interest to the Court, such an individual has no personal benefit to gain, save and except that he or she belongs to the wider community on whose behalf the relief is sought. Though, the rules of standing have been relaxed, public interest litigation has to necessarily conform with the basic requirements of a petition under Article 226 of the Constitution, when it is presented before the Court.
8. The experience which was, however, gained over several decades of the working of public interest litigation, was that just as this became a powerful instrument of securing social and economic justice; it was capable of being misused and abused for securing oblique private aims guided by extraneous reasons. Public interest litigation, as contemporary experience would show, has been misused by publicity seekers and by business competitors who seek to challenge important public projects in the garb of presenting petitions in the public interest. The object of such petitions is not to protect genuine public interest but to promote the private interest of various commercial interests. In a large number of cases, this results in delays and cost overruns. In other words, while public interest litigation has to be regarded as an instrument of protecting just public causes, it has to be protected equally against an abuse. The abuse of public interest litigation also results in a situation where the High Courts, which are faced with a flood of genuine litigation apart from public interest litigation, are deprived of the time and resources for dealing with ordinary civil and criminal cases. When a case, ostensibly in the public interest, is filed with an oblique motive and finally comes up for hearing, the Court may ultimately find the process of justice being derailed. In the meantime, incalculable harm may have been caused in terms of the time and resources which the justice delivery system has had to devote to such cases; by the delayed justice in genuine cases which should have been attended to but were not; and to public projects which are held up on account of such petitions. Holding up of important public projects is likely to have serious consequences for the rule of law as well as for sustained growth and development of a society, such as ours. The credibility of the justicing system may be imperiled when litigants at the receiving end of the spectrum are visited with the consequence of delay and abuse of the process of the Court.
9. In M/s. Holicow Pictures Pvt. Ltd. Vs. Prem Chandra Mishra & Ors.19, the Supreme Court, while referring to the abuse of the process of the Court in petitions filed for extraneous reasons and not to protect genuine public interest, observed as follows:
"17. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, the time which otherwise could have been spent for disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy, whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system."
The Supreme Court also emphasised that public interest litigation has to be used with great care and circumspection and the Court has to ensure that behind veil of public interest, an ugly private malice of vested interest does not lurk.
10. This background is necessary to understand the genesis of sub-rule (3-A), which was introduced in Rule 1 of Chapter XXII. The explanatory note to the rule, specifically acknowledges that in Balwant Singh Chaufal (supra), the Supreme Court had observed that the process of the Court is frequently abused in the name of public interest litigation. The Supreme Court had directed all the High Courts to frame rules to prevent such abuses.
11. In Balwant Singh Chaufal (supra), the Supreme Court, during the course of the judgment, devoted an entire section to the abuse of public interest litigation and observed as follows:
"Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non- monetary directions by the courts."
The following operative directions were issued by the Supreme Court:
"(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 by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts 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 Courts 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." (emphasis supplied).
12. The Supreme Court considered it appropriate that instead of every individual Judge devising the procedure of each court for dealing with public interest litigation, it was necessary for every High Court to formulate its own rules and policy. Every one of the operative directions issued by the Supreme Court emphasizes that the basic object is to devote judicial space to genuine and bona fide petitions filed in public interest and to discourage recourse to this jurisdiction when it is for extraneous considerations or oblique motives. That is why the Supreme Court directed that the credentials of every petitioner should be verified, the Court should be fully satisfied that substantial public interest is involved; the petition must involve larger public interest in which the gravity and urgency of the situation requires the grant of priority, and that the petition must be aimed at redressal of genuine public harm and public injury. The Supreme Court again emphasized that there should be no personal gain or oblique motive behind the filing of a public interest litigation. Besides directing that petitions filed for extraneous and ulterior motives be discouraged by imposing exemplary costs, the Supreme Court permitted the adoption of other novel methods to curb frivolous petitions. In this background, the High Courts were directed to frame their own individual rules.
13. The Supreme Court did not consider it necessary that there should be a uniform set of rules for all High Courts. When the Supreme Court left it open to each High Court to frame its own rules, there was a meaning and purpose behind this direction. The purpose was to ensure that the rules which are framed by the High Courts would be formulated keeping in mind the ground reality of litigation before every High Court, the socio-economic circumstances of each state and the nature of litigation which may necessarily vary from State to State. Certain states in the country have different geographical conditions. Levels of development as determined by the human development index vary from state to state, such as enrolments in primary schools, infant mortality, fertility ratio and life expectancy. There is a disparity even within states in levels of education. The tribals have unequal access to education and health. The pattern of litigation may require different considerations to be borne in mind while entertaining PILs. The ultimate aim is to allow space for genuine petitions filed in public interest and to discourage petitions which are filed for extraneous considerations.
14. Sub-rule (3-A), which has been framed by this Court, requires a person espousing a public cause, to file an affidavit stating precisely, his credentials and the public cause which is sought to be espoused. This is intended to disclose to the Court, the full track record and bona fides of the petitioner. The petitioner has to similarly disclose that he or she has no personal or private interest in the matter and that there is no authoritative pronouncement by the Supreme Court or High Courts on the question raised. The last part of sub-rule (3-A) requires a disclosure that the result of the litigation will not lead to any undue gain to the petitioner or anyone associated with him, or any undue loss to any person, body of persons or the State. The words which have been used in sub-rule (3-A) are "undue gain" and "undue loss". The expression 'undue' is an expression which has a well settled legal connotation. 'Undue' is distinct from the expression 'due'. The expression 'due' means, inter alia, "just, proper, regular, and reasonable."20 The expression 'undue' is defined as something which is "excessive or unwarranted."21
15. Significantly, sub-rule (3-A) requires the petitioner to state that the result of the litigation will not result in any undue loss to any person, body of persons or the State. What is meant by undue, is that the litigation will not result in a loss which would be unwarranted in the sense of its being contrary to the rule of law. Undoubtedly, a litigation against the State, where a person moving the Court is held to be entitled to relief, may result in the Court granting relief against the State and in favour of the petitioner. The consequence of the relief which is granted, may impose a financial exaction or burden on the state. But, this is not what is intended to be covered by sub-rule 3-A of Rule 1, as amended. What sub-rule 3-A does is that it seeks to discourage the filing of cases causing undue loss to any person, body of persons or the state. The state in a democracy represents the collective will of the people. An undue loss is a loss which is sustained though the action was lawful, justified and in accordance with the rule of law. For instance, when a public project which complies with all legal norms is held up because of a frivolous petition, or a petition filed at the behest of a competitor, the loss to the public interest is undue because it was unwarranted. The expression 'undue' is not vague but has a meaning attributed to it. An undue loss is a loss which has been caused to a person, body of persons or state as a result of the pursuit of a litigation with an oblique motive or for extraneous considerations as distinct from a cause which is lawful. If a petition, which is filed ostensibly in public interest, is found not to be a genuine public interest litigation, the loss that may be caused to a person or to a body of persons or the state is undue because, as is well known, even the pendency of a litigation may be utilised to cause serious damage to the execution of a public project, a detriment to reputation or an irremediable injury. It was this abuse of the process that was sought to be obviated by requiring a disclosure on affidavit. That is why the expression that has been used is not 'loss' but 'undue loss'.
16. We find no merit in the contention of the petitioner that the imposition of such a requirement is a denial of access to justice. All that the rule imposes is a requirement of disclosure on affidavit. If the cause which a person seeks to espouse is genuine and bona fide, there would be no difficulty in stating on affidavit, that the litigation would not result in any undue loss, the expression having the meaning which we have explained earlier. The fact that the Court, even without the rule, would have been entitled to dismiss a petition, is no ground to attack the rule or the authority of the rule. Even prior to the enforcement of the rules, the Court did have the element of discretion in the exercise of its jurisdiction under Article 226 of the Constitution. That is not affected. The rule makes explicit, what is inherent in the power of the Court and seeks to place litigants on notice of the fact that public interest litigations involving only genuine and bona fide causes should be agitated as distinct from those which espouse extraneous and oblique concerns. The rule is guided by the underlying principle which was set out in the judgment of the Supreme Court in Balwant Singh Chaufal (supra). The Supreme Court left it to every High Court to frame its own rules, consistent with the ground reality and the experience gained in the domain of public interest litigation. That is what has been done by the Allahabad High Court. The rule has been framed in the exercise of the rule making power of the High Court which is of a quasi legislative nature. It is well settled that, unless a rule is held to suffer from manifest arbitrariness, there would be no ground to strike down such a rule as being violative of Article 14.22
17. In the present case, we find no reason to hold that the rule is arbitrary, vague or violative of Article 14 or Article 21 of the Constitution.
18. For the aforesaid reasons, we find no merit in the petition. The petition is, accordingly, dismissed. The interim order shall, accordingly, stand vacated.
23.04.2014 AHA (D.K. Upadhyaya, J.) (Dr. D.Y. Chandrachud, C.J.)