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CASE NO.:

Writ Petition (crl.) 199 of 2003

PETITIONER:

Ashok Kumar Pandey

RESPONDENT:

The State of West Bengal

DATE OF JUDGMENT: 18/11/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J

This petition under Article 32 of the Constitution of India,

1950 (in short 'the Constitution') has been filed purportedly in

public interest. The prayer in the writ petition is to the effect

that the death sentence imposed on one Dhananjay Chatterjee @

Dhana (hereinafter referred to as 'the accused') by the Sessions

Court, Alipur, West Bengal, affirmed by the Calcutta High Court

and this Court, needs to be converted to a life sentence because

there has been no execution of the death sentence for a long time.

Reliance was placed on a Constitution Bench decision of this Court

in Smt. Triveniben vs. State of Gujarat, (1989 (1) SCC 678).

According to the petitioner, he saw a news item in a TV

channel wherein it was shown that the authorities were unaware

about the non-execution of the death sentence and, therefore,

condemned prisoner, the accused has suffered a great degree of

mental torture and that itself is a ground for conversion of his

death sentence to a life sentence on the basis of ratio in

Triveniben's case (supra). It needs to be noted here that prayer

for conversion of death sentence to life sentence has already been

turned down by the Governor of West Bengal and the President of

India in February 1994 and June 1994 respectively as stated in the

petition. When the matter was placed for admission, we asked the

petitioner who appeared in-person as to what was his locus standi

and how a petition under Article 32 is maintainable on such nature

of information by which he claims to have come to know of it. His

answer was that as a public spirited citizen of the country, he

has a locus to present the petition and when the matter involved

life and liberty of a citizen, this Court should not stand on

technicalities and should give effect to the ratio in Triveniben's

case (supra). There has been violation of Article 21 of the

Constitution and the prolonged delay in execution of sentence is

violative of Article 21, so far as the accused is concerned.

Reliance was also placed on few decisions, for example,

Sunil Batra (II) vs. Delhi Administration, (1980 (3) SCC 488);

S.P. Gupta vs. Union of India, (1981 (Supp.) SCC 87); Daya Singh

vs. Union of India, (1991 (3) SCC 61) and Janata Dal vs. H.S.

Choudhary, (1992 (4) SCC 305) to substantiate the plea that the

petitioner had locus standi to present the petition in public

interest and this was a genuine public interest litigation.

When there is material to show that a petition styled as a

public interest litigation is nothing but a camouflage to foster

personal disputes, said petition is to be thrown out. Before we

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grapple with the issue involved in the present case, we feel it

necessary to consider the issue regarding public interest aspect.

Public Interest Litigation which has now come to occupy an

important field in the administration of law should not be

"publicity interest litigation" or "private interest

litigation" or "politics interest litigation" or the latest

trend "paise income litigation". If not properly regulated and

abuse averted it becomes also a tool in unscrupulous hands to

release vendetta and wreck vengeance, as well. There must be real

and genuine public interest involved in the litigation and not

merely an adventure of knight errant or poke ones into for a

probe. It cannot also be invoked by a person or a body of persons

to further his or their personal causes or satisfy his or their

personal grudge and enmity. Courts of justice should not be

allowed to be polluted by unscrupulous litigants by resorting to

the extraordinary jurisdiction. A person acting bona fide and

having sufficient interest in the proceeding of public interest

litigation will alone have a locus standi and can approach the

Court to wipe out violation of fundamental rights and genuine

infraction of statutory provisions, but not for personal gain or

private profit or political motive or any oblique consideration.

These aspects were highlighted by this Court in The Janta Dal case

(supra) and Kazi Lhendup Dorji vs. Central Bureau of

Investigation, (1994 Supp (2) SCC 116). A writ petitioner who

comes to the Court for relief in public interest must come not

only with clean hands like any other writ petitioner but also with

a clean heart, clean mind and clean objective. See Ramjas

Foundation vs. Union of India, (AIR 1993 SC 852) and K.R. Srinivas

vs. R.M. Premchand, (1994 (6) SCC 620).

It is necessary to take note of the meaning of expression

'public interest litigation'. In Strouds Judicial Dictionary,

Volume 4 (IV Edition), 'Public Interest' is defined thus:

"Public Interest (1) a matter of public or general

interest does not mean that which is interesting as

gratifying curiosity or a love of information or

amusement but that in which a class of the

community have a pecuniary interest, or some

interest by which their legal rights or liabilities

are affected."

In Black's Law Dictionary (Sixth Edition), "public

interest" is defined as follows :

"Public Interest something in which the public, or

some interest by which their legal rights or

liabilities are affected. It does not mean

anything the particular localities, which may be

affected by the matters in question. Interest

shared by national government...."

In Janata Dal case (supra) this Court considered the scope

of public interest litigation. In para 52 of the said judgment,

after considering what is public interest, has laid down as

follows :

"The expression 'litigation' means a legal action

including all proceedings therein initiated in a

Court of law for the enforcement of right or

seeking a remedy. Therefore, lexically the

expression "PIL" means the legal action initiated

in a Court of law for the enforcement of public

interest or general interest in which the public or

a class of the community have pecuniary interest or

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some interest by which their legal rights or

liabilities are affected."

In paras 60, 61 and 62 of the said judgment, it was pointed

out as follows:

"Be that as it may, it is needless to emphasis that

the requirement of locus standi of a party to a

litigation is mandatory, because the legal capacity

of the party to any litigation whether in private

or public action in relation to any specific remedy

sought for has to be primarily ascertained at the

threshold."

In para 96 of the said judgment, it has further been pointed

out as follows:

"While this Court has laid down a chain of notable

decisions with all emphasis at their command about

the importance and significance of this newly

developed doctrine of PIL, it has also hastened to

sound a red alert and a note of severe warning that

Courts should not allow its process to be abused by

a mere busy body or a meddlesome interloper or

wayfarer or officious intervener without any

interest or concern except for personal gain or

private profit or other oblique consideration."

In subsequent paras of the said judgment, it was observed as

follows:

"It is thus clear that only a person acting bona

fide and having sufficient interest in the

proceeding of PIL will alone have as locus standi

and can approach the Court to wipe out the tears of

the poor and needy, suffering from violation of

their fundamental rights, but not a person for

personal gain or private profit or political motive

or any oblique consideration. Similarly a

vexatious petition under the colour of PIL, brought

before the Court for vindicating any personal

grievance, deserves rejection at the threshold".

It is depressing to note that on account of such trumpery

proceedings initiated before the Courts, innumerable days are

wasted, which time otherwise could have been spent for the

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 grievance 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 busy bodies, meddlesome

interlopers, wayfarers or officious interveners having absolutely

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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 court 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.

Public interest litigation is a weapon which has to be used

with great care and circumspection and the judiciary has to be

extremely careful to see that behind the beautiful veil of public

interest an ugly private malice, vested interest and/or publicity

seeking is not lurking. It is to be used as an effective weapon in

the armory of law for delivering social justice to the citizens.

The attractive brand name of public interest litigation should not

be used for suspicious products of mischief. It should be aimed

at redressal of genuine public wrong or public injury and not

publicity oriented or founded on personal vendetta. As indicated

above, Court must be careful to see that a body of persons or

member of public, who approaches the court is acting bona fide and

not for personal gain or private motive or political motivation or

other oblique consideration. The Court must not allow its process

to be abused for oblique considerations. Some persons with vested

interest indulge in the pastime of meddling with judicial process

either by force of habit or from improper motives. Often they are

actuated by a desire to win notoriety or cheap popularity. The

petitions of such busy bodies deserve to be thrown out by

rejection at the threshold, and in appropriate cases with

exemplary costs.

The Council for Public Interest Law set up by the Ford

Foundation in USA defined the "public interest litigation" in its

report of Public Interest Law, USA, 1976 as follows:

"Public Interest Law is the name that has recently

been given to efforts provide legal representation

to previously unrepresented groups and interests.

Such efforts have been undertaken in the

recognition that ordinary market place for legal

services fails to provide such services to

significant segments of the population and to

significant interests. Such groups and interests

include the proper environmentalists, consumers,

racial and ethnic minorities and others."

The Court has to be satisfied about (a) the credentials of

the applicant; (b) the prima facie correctness or nature of

information given by him; (c) the information being not vague and

indefinite. The information should show gravity and seriousness

involved. Court has to strike balance between two conflicting

interests; (i) nobody should be allowed to indulge in wild and

reckless allegations besmirching the character of others; and (ii)

avoidance of public mischief and to avoid mischievous petitions

seeking to assail, for oblique motives, justifiable executive

actions. In such case, however, the Court cannot afford to be

liberal. It has to be extremely careful to see that under the

guise of redressing a public grievance, it does not encroach upon

the sphere reserved by the Constitution to the Executive and the

Legislature. The Court has to act ruthlessly while dealing with

imposters and busy bodies or meddlesome interlopers impersonating

as public-spirited holy men. They masquerade as crusaders of

justice. They pretend to act in the name of Pro Bono Publico,

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though they have no interest of the public or even of their own to

protect.

Courts must do justice by promotion of good faith, and

prevent law from crafty invasions. Courts must maintain the

social balance by interfering where necessary for the sake of

justice and refuse to interfere where it is against the social

interest and public good. (See State of Maharashtra vs. Prabhu,

(1994 (2) SCC 481), and Andhra Pradesh State Financial Corporation

vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151). No

litigant has a right to unlimited drought on the Court time and

public money in order to get his affairs settled in the manner as

he wishes. Easy access to justice should not be misused as a

licence to file misconceived and frivolous petitions. (See Dr.

B.K. Subbarao vs. Mr. K. Parasaran, (1996) 7 JT 265). Today people

rush to Courts to file cases in profusion under this attractive

name of public interest. They must inspire confidence in Courts

and among the public.

As noted supra, a time has come to weed out the petitions,

which though titled as public interest litigations are in essence

something else. It is shocking to note that Courts are flooded

with large number of so called public interest litigations where

even a minuscule percentage can legitimately be called as public

interest litigations. Though the parameters of public interest

litigation have been indicated by this Court in large number of

cases, yet unmindful of the real intentions and objectives, Courts

are entertaining such petitions and wasting valuable judicial time

which, as noted above, could be otherwise utilized for disposal of

genuine cases. Though in Dr. Duryodhan Sahu and Ors. v. Jitendra

Kumar Mishra and Ors. (AIR 1999 SC 114), this Court held that in

service matters PILs should not be entertained, the inflow of so-

called PILs involving service matters continues unabated in the

Courts and strangely are entertained. The least the High Courts

could do is to throw them out on the basis of the said decision.

The other interesting aspect is that in the PILs, official

documents are being annexed without even indicating as to how the

petitioner came to possess them. In one case, it was noticed that

an interesting answer was given as to its possession. It was

stated that a packet was lying on the road and when out of

curiosity the petitioner opened it, he found copies of the

official documents. Whenever such frivolous pleas are taken to

explain possession, the Court should do well not only to dismiss

the petitions but also to impose exemplary costs. It would be

desirable for the Courts to filter out the frivolous petitions and

dismiss them with costs as afore-stated so that the message goes

in the right direction that petitions filed with oblique motive do

not have the approval of the Courts.

Coming to the facts of the case, it has not been shown as to

how and in what manner the accused, condemned prisoner is

handicapped in not seeking relief if any as available in law. The

matter pertains to something to happen or not at Kolkatta and what

was the truth about the news or cause for the delay, even if it be

is not known or ascertained or even attempted to be ascertained by

the petitioner before approaching this Court. To a pointed query,

the petitioner submitted that the petitioner "may not be aware"

of his rights, that except the news he heard he could not say any

further and "the respondent-State may come and clarify the

position. This petition cannot be entertained on such speculative

foundations and premises and to make a roving enquiry. May be at

times even on certain unconfirmed news but depending upon the

gravity or heinous nature of the crime alleged to be perpetrated

which would prove to be obnoxious to the avowed public policy,

morals and greater societal interests involved, Courts have

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ventured to intervene but we are not satisfied that this could be

one such case, on the facts disclosed. It is reliably learnt that

a petition with almost identical prayers was filed before the

Calcutta High Court by relatives of the accused and the same has

been recently dismissed by the High Court.

In Gupta's case (supra) it was emphatically pointed out that

the relaxation of the rule of locus standi in the field of PIL

does not give any right to a busybody or meddlesome interloper to

approach the Court under the guise of a public interest litigant.

He has also left the following note of caution: (SCC p.219, para

24)

"But we must be careful to see that the member of

the public, who approaches the court in cases of

this kind, is acting bona fide and not for personal

gain or private profit or political motivation or

other oblique consideration. The court must not

allow its process to be abused by politicians and

others to delay legitimate administrative action or

to gain a political objective."

In State of H.P. vs. A Parent of a Student of Medical

College, Simla and Ors. (1985 (3) SCC 169), it has been said that

public interest litigation is a weapon which has to be used with

great care and circumspection.

Khalid, J. in his separate supplementing judgment in

Sachidanand Pandey vs. State of W.B., (1987 (2) SCC 295, 331)

said:

"Today public spirited litigants rush to courts to

file cases in profusion under this attractive name.

They must inspire confidence in courts and among

the public. They must be above suspicion. (SCC p.

331, para 46)

* * *

Public interest litigation has now come to

stay. But one is led to think that it poses a

threat to courts and public alike. Such cases are

now filed without any rhyme or reason. It is,

therefore, necessary to lay down clear guidelines

and to outline the correct parameters for

entertainment of such petitions. If courts do not

restrict the free flow of such cases in the name of

public interest litigations, the traditional

litigation will suffer and the courts of law,

instead of dispensing justice, will have to take

upon themselves administrative and executive

functions. (SCC p.334, para 59)

* * *

I will be second to none in extending help when

such help is required. But this does not mean that

the doors of this Court are always open for anyone

to walk in. It is necessary to have some self-

imposed restraint on public interest litigants."

(SCC p.335, para 61)

Sabyasachi Mukharji, J. (as he then was) speaking for the

Bench in Ramsharan Autyanuprasi vs. Union of India, (1989 Supp (1)

SCC 251), was in full agreement with the view expressed by Khalid,

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J. in Sachidanand Pandey's case (supra) and added that 'public

interest litigation' is an instrument of the administration of

justice to be used properly in proper cases.

See also separate judgment by Pathak, J. (as he then was) in

Bandhua Mukti Morcha vs. Union of India, (1984 (3) SCC 161).

Sarkaria, J. in Jasbhai Motibhai Desai vs. Roshan Kumar,

Haji Bashir Ahmed & Ors. (1976 (1) SCC 671) expressed his view

that the application of the busybody should be rejected at the

threshold in the following terms: (SCC p. 683, para 37)

"It will be seen that in the context of locus

standi to apply for a writ of certiorari, an

applicant may ordinarily fall in any of these

categories : (i) 'person aggrieved'; (ii)

'stranger'; (iii) busybody or meddlesome

interloper. Persons in the last category are

easily distinguishable from those coming under the

first two categories. Such persons interfere in

things which do not concern them. They masquerade

as crusaders for justice. They pretend to act in

the name of pro bono publico, though they have no

interest of the public or even of their own to

protect. They indulge in the pastime of meddling

with the judicial process either by force of habit

or from improper motives. Often, they are actuated

by a desire to win notoriety or cheap popularity;

while the ulterior intent of some applicants in

this category, may be no more than spoking the

wheels of administration. The High Court should do

well to reject the applications of such busybodies

at the threshold."

Krishna Iyer, J. in Fertilizer Corporation Kamgar Union

(Regd.) Sundri and Ors. v. Union of India, (1981 (1) SCC 568) in

stronger terms stated: (SCC p.589, para 48)

"If a citizen is no more than a wayfarer or

officious intervener without any interest or

concern beyond what belongs to any one of the 660

million people of this country, the door of the

court will not be ajar for him."

In Chhetriya Pardushan Mukti Sangharsh Samiti v. State of

U.P., (1990 (4) SCC 449), Sabyasachi Mukharji, C.J. observed: (SCC

p.452, para 8)

"While it is the duty of this Court to enforce

fundamental rights, it is also the duty of this

Court to ensure that this weapon under Article 32

should not be misused or permitted to be misused

creating a bottleneck in the superior court

preventing other genuine violation of fundamental

rights being considered by the court."

In Union Carbide Corporation v. Union of India, (1991 (4)

SCC 584, 610), Ranganath Mishra, C.J. in his separate judgment

while concurring with the conclusions of the majority judgment has

said thus: (SCC p.610, para 21)

"I am prepared to assume, nay, concede, that public

activists should also be permitted to espouse the

cause of the poor citizens but there must be a

limit set to such activity and nothing perhaps

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should be done which would affect the dignity of

the Court and bring down the serviceability of the

institution to the people at large. Those who are

acquainted with jurisprudence and enjoy social

privilege as men educated in law owe an obligation

to the community of educating it properly and

allowing the judicial process to continue

unsoiled."

In Subhash Kumar v. State of Bihar, (1991 (1) SCC 598) it

was observed as follows:

"Public interest litigation cannot be invoked by a

person or body of persons to satisfy his or its

personal grudge and enmity. If such petitions

under Article 32, are entertained it would amount

to abuse of process of the court, preventing speedy

remedy to other genuine petitioners from this

Court. Personal interest cannot be enforced

through the process of this Court under Article 32

of the Constitution in the garb of a public

interest litigation. Public interest litigation

contemplates legal proceeding for vindication or

enforcement of fundamental rights of a group of

persons or community which are not able to enforce

their fundamental rights on account of their

incapacity, poverty or ignorance of law. A person

invoking the jurisdiction of this Court under

Article 32 must approach this Court for the

vindication of the fundamental rights of affected

persons and not for the purpose of vindication of

his personal grudge or enmity. It is the duty of

this Court to discourage such petitions and to

ensure that the course of justice is not obstructed

or polluted by unscrupulous litigants by invoking

the extraordinary jurisdiction of this Court for

personal matters under the garb of the public

interest litigation".

In the words of Bhagwati, J. (as he then was) "the courts

must be careful in entertaining public interest litigations" or

in the words of Sarkaria, J. "the applications of the busybodies

should be rejected at the threshold itself" and as Krishna Iyer,

J. has pointed out, "the doors of the courts should not be ajar

for such vexatious litigants".

It will be appropriate at this stage to take note of what

this Court felt when dealing with petitions under Article 32 with

somewhat similar issues. The petitioner in one case filed writ

petition under Article 32 of the Constitution challenging the

order of this Court whereby it had affirmed the conviction of two

accused and confirmed the death sentence for reasons stated in its

judgment in State of Maharashtra v. Sukhdeo Singh (AIR 1992 SC

2100).

The writ petition was dismissed holding that third party has

no locus standi to challenge the conviction by filing the writ

petition under Article 32 of the Constitution. (See Simranjit

Singh Mann v. Union of India (AIR 1993 SC 280)

The petitioner there claimed to be a friend of the convicts,

and it was held that he has no locus standi to move the Court

under Article 32 of the Constitution. Unless the aggrieved party

is a minor or an insane or one who is suffering from any other

disability which the law recognizes as sufficient to permit

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another person e.g., next friend, to move the Court on his behalf;

for example, see Sections 320(4-a), 330(2) read with Sections

335(1)(b) and 339 of the Code of Criminal Procedure, 1973 (in

short the 'Code'). Ordinarily the aggrieved party has the right to

seek redress. Admittedly, it was not the case of the petitioner

that the two convicts are minors or insane persons but had argued

that since they were suffering from an acute obsession such

obsession amounts to a legal disability which permits the next

friend to initiate proceedings under Article 32 of the

Constitution.

A mere obsession based on religious belief or any other

personal philosophy cannot be regarded as a legal disability of

the type recognized by the Code or any other law which would

permit initiation of proceedings by a third party, be he a friend.

It must be remembered that the repercussions of permitting such a

third party to challenge the findings of the Court can be serious,

e.g., in the instant case, itself the co-accused who have been

acquitted by the Designated Court and whose acquittal has been

confirmed by this Court would run the risk of a fresh trial and a

possible conviction.

Similar view was expressed in Karamjeet Singh v. Union of

India (AIR 1993 SC 284).

It was noted that Article 32 which finds a place in Part III

of the Constitution entitled "fundamental rights" provides that

right to move this Court for the enforcement of the rights

conferred in that part is guaranteed. It empowers this Court to

issue directions or orders or writs for the enforcement of any of

the fundamental rights. The petitioner did not seek to enforce any

of his fundamental rights nor did he complain that any of his

fundamental right was violated. He sought to enforce the

fundamental rights of others, namely, the two condemned convicts

who themselves did not complain of their violation. Ordinarily,

the aggrieved party which is affected by any order has the right

to seek redress by questioning the legality, validity or

correctness of the order, unless such party is a minor, an insane

person or is suffering from any other disability which the law

recognizes as sufficient to permit another person, e.g. next

friend, to move the court on his behalf.

Unless an aggrieved party is under some disability

recognized by law, it would be unsafe and hazardous to allow any

third party be a member of the Bar to question the decision

against third parties.

Neither under the provisions of the Code nor under any other

statute is a third party stranger permitted to question the

correctness of the conviction and sentence.

Based on the above backgrounds, we do not think this a fit

case which can be entertained and that too, under Article 32 of

the Constitution and is accordingly dismissed, but without costs.