Suo Motu Petitions of HC and SC’s observation to decide to call for such cases from HCs to SC- A law student’s curiosity
As a student of law, we know that our Constitution has very well defined distinct jurisdictions and vested powers of Constitutional Courts i.e. High Courts and Supreme Court of India, respectively.
The Supreme Court being the Apex Court of India has extraordinary jurisdictional powers again derived from the Constitution of India.
We should be thankful to the Indian Judiciary which identified the importance of Public Interest in early years of Independence itself towards various fundamental rights of the citizens of India.
The credit for genesis of Public Interest Litigation in India goes to Justice Krishna Iyer, who in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai 1976 AIR 1455 held that,
“Public interest is promoted by a spacious construction of locus standi in our socio economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.
It is also known that Justice Bhagwati took the concept of Public Interest Litigation to a populist legal tool to safeguard the rights and while sitting and authoring the decision in SP Gupta v. Union of India AIR 1982 SC 149 in a 7 member SC bench, he held that:
“The court has to innovate new methods and strategies to provide access to justice to large masses of people who are denied basic human rights, to whom freedom and liberty have no meaning.”
“..where a legal wrong or a legal injury is caused to determinate class of persons or a legal right and such person or determinate class of person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons…”
Though the concept of PIL and its journey in India is very exhaustive, but the moot question which arises is whether a suo motu PIL related to Covid-19, of different HCs, can be transferred to the Supreme Court?
This question has raised many eyebrows in the legal fraternity and even saw a unanimous ire in public domain in the wage of SC’s remark in a suo motu case pertaining to the supply of essential drugs, oxygen, vaccination issues and question of lockdown. “The Court said that it has to also decide if it will transfer cases from all High Courts.”
It is a well-known jurisprudence that where PILs are filed in different HCs against a law, then the issue being common and to expedite the process, the PILs are often collectively called to the SC as was last done in February, 2021 against the IT Rules, 2021.
But where the High Courts, discharging their duty in the capacity of a Constitutional Court, take cognizance i.e. a suo motu PIL and carry out day to day hearings especially in the wage of Pandemic in different jurisdictions with respect to different challenges and infrastructure scarcity in different states, can it still fit in the parameter of transfer of PIL to SC or otherwise?
It is reported that even after such a remark and in absence of any stay by SC, three HCs have still proceeded with their on-going suo motu PIL matters. Meanwhile, today i.e. 23rd April, 2021, which also happens to be the last working day for CJI Bobde, it has also been expressed by the Bench that they have neither said so nor stopped HCs from carrying on with the matters.
Further, Mr. Harish Salve, Sr. Advocate has also sought recusal from being amicus curiae in this matter and accordingly Court allowed his request.
In the said backdrop, can such an initial remark of SC really pass the test of independence of HC as a Constitutional Court while dealing with their respective suo motu PIL and exercise of Article 226 in such matters?
Also, presuming that it happens in the future, then whether such clubbing can really result into expediting the issues when the facts and facets of different States, including preparedness and infrastructure, during the Pandemic are not only different but are also not alien to the citizens including students of law?
We student of law are always aware that Constitutional Courts are real custodians and pillars of the Constitution of India so that the fundamental rights are always ensured through implementation of law and order with time to time judicial scrutiny.
Disclaimer– This write up is merely on an interpretative thought and not meant to question the forum or their legal standing and/or the dignity of the Courts. We all should have highest faith in our judiciary at almost every level and for every decision or order given on any issue. This is neither an attempt to disrespect any observations in any of the Courts as well.
But, as a student of law, submissions, analysis, thought process and understanding can always be put forward and expected for a healthy discussion and ofcourse in a dignified manner at the first place.