Prof. P.K. Chandla vs Union Of India (Uoi) And Anr.
2005 Latest Caselaw 658 Del

JUDGMENT

B.C. Patel, C.J.

1. The writ petition styled as a public interest litigation seeks directions in respect of what is alleged to be the clandestine entry of foreign media houses in India. The petitioner had earlier filed Civil Writ No. 1207 of 2004 which was disposed of on 28.1.2004, in terms whereof directions were issued to the respondent to treat that petition as a representation and reply to the petitioner within two weeks. Liberty was granted to the petitioner to again approach this Court in case of need. The occasion to file the petition is stated to be the failure of the respondent to reply in terms of the said order.

2. An additional affidavit has been filed after filing of the writ petition. Since the reply dated 23.4.2004 was received by the petitioner, the writ petition was filed on 19.4.2004 and thus this reply appears to be received soon thereafter. The reply records that the order of this Court dated 28.1.2004 was received only on 12.3.2004 and the five matters raised by the petitioner as illustration of non enforcement of laid down norms on foreign investment restrictions have been dealt with in this reply.

3. In respect of one of the matters pertaining to M/s. MBPL, it is stated that the information called for from the company was not found to be fully satisfactory by the Government but the company filed a writ petition in the High Court of Bombay and obtained an order restraining the Government from revoking the license of M/s. MBPL. The reply of the Government is stated to have been filed in the petition but a final decision of the Court was awaited. Thus the issue is sub judice before the said Court.

4. In respect of other matters on inquiry it was found that there were no violations of the laid down norms of the Government and the reasons for the same have been stated in the reply itself.

5. Learned Senior Counsel for the petitioner still contends that since in the reply it has not been stated as to what is the basis for the Government to have arrived at a conclusion, as mentioned in para 4 of the letter notice be issued in this matter.

It is further stated that no details of the proceedings before the Bombay High Court or the contents of the petition have been disclosed.

6. We are unable to accept the aforesaid contention. Detailed reasons have in fact been set out in the letter. In so far as the matter being sub judice before the Bombay High Court is concerned, the petition number may not have been mentioned but a summar of as to what has happened has been set out in the letter.

7. We are also of the considered view that the matter relates to a policy decision of the Government which does not call for any interference specially in view of the observations of the Supreme Court in the case of Balco Employees' Union (Regd.) v. Union of India reported as (2002) 2 S.C.C.333 which is required to be considered while considering public interest litigation. The Court observed as under:-

"78.While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarised the extent of the jurisdiction which has now been exercised in the following words:

"PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:

Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).

Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganized labour etc.).

Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).

Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).

Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water."

79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.

80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same.

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82.. The limitation within which the Court must act, and the caution against the abuse of the same is referred to by Bhagwati, J. at p.219-20 as follows: (SCC para 24)

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. Andre Rabie has warned that political pressure groups who could not achieve their aims through the administrative process and we might add, through the political process, may try to use the courts to further their aims . These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the executive and the legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born.

87. Lastly, we need only to refer to the following observations in the majority decision in Narmada Bachao Andolan case19 at p. 763: (SCC paras 232-34)

"232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has ought to impinge upon the court's jurisdiction.

233. At the same time, in exercise of its enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law.

234. In respect of public projects and policies which are initiated by the Government the courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation the court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the court to go into the matter afresh and, in a way, sit in appeal over such a policy decision."

88. It will be seen that whenever the Court has interfered and given directions while entertaining PIL it has mainly been where there has been an element of violation of Article 21 or of human rights or where the litigation has been initiated for the benfit of the poor and the underprivileged who are unable to come to court due to some disadvantage. In those cases also it is the legal rights which are secured by the courts. We may, however, add that public interest litigation was not meant to be a weapon to challenge the financial or economic decisions which are taken by the Government in exercise of their administrative power. No doubt a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same in a court of law but, a public interest litigation at the behest of a stranger ought not to be entertained. Such a litigation cannot per se be on behalf of the poor and the downtrodden, unless the court is satisfied that there has been violation of Article 21 and the persons adversely affected are unable to approach the court.

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92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court.

93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. Here the policy was tested and the motion defeated in the Lok Sabha on 1-3-2001.

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97. Judicial interference by way of PIL is available if there is injury to public because of dereliction of constitutional or statutory obligations on the part of the Government. Here it is not so and in the sphere of economic policy or reform the courts not the appropriate forum. Every matter of public interest or curiosity cannot be the subject-matter of PIL. Courts are not intended to and nor should they conduct the administration of the country. Courts will interfere only if there is a clear violation of constitutional or statutory provisions or non-compliance by the State with its constitutional or statutory duties. None of these contingencies arise in this present case.

98. In the case of a policy decision on economic matters, the courts should be very circumspect in conducting any enquiry or investigation and must be most reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself."

8. Be that as it may, the grievances of the petitioner have in fact been considered and a proper response has been submitted.

9. In view of the aforesaid, we see no reason to proceed with this petition and the same is dismissed.

CM No. 4946/2004

Application for interim relief is dismissed.