Madras High Court
[email protected] vs The Secretary Of External Affairs on 28 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.03.2016 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE C.T.SELVAM Writ Petition (MD)No.5964 of 2016 [email protected] ... Petitioner Vs. The Secretary of External Affairs, Ministry of India (United Nations Political Division) Jawaharlal Nehru Bhavan, 23 D Janpath, New Delhi?110 011. ... Respondent Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Mandamus, directing to the respondent to forward the petitioner's opinion letter with recommendation to the General Secretary of United Nations regarding abolition of military of each nation and for the conversion of United Nation Organisation as United National Government and Army and also to the president of SARRC Countries. !For petitioner : Mr.K.S.@ GANESAN/Party in person For Respondent : :ORDER
(Order of the Court was made by Hon'ble Mr.Justice S.MANIKUMAR) Mr.K.S.@ S.Ganesan, a practising Advocate, and claiming himself to be a pro bono litigant, has sought for a Writ of Mandamus, directing the respondent/The Secretary of External Affairs, Ministry of India (United Nations Political Division), New Delhi, to forward his opinion letter, dated 25.11.2015, with recommendation, to the General Secretary of United Nations, regarding abolition of the military of each nation, and for the conversion of ''United Nation Organisation'' as ''United National Government and Army'', and also to the ''President of SARRC'' Countries.
2.Some of the averments made in the supporting affidavit, are extracted hereunder:-
''The opinion of the petitioners is detailed as below. Every Nation has many states within their country but these states has not hold any separate army to safe guard their state. The security of the all states are safe and controlled by the common National army of their country. The Nation does not allow the each state to hold their own army separately. All states of the country depends upon the respective country's army. Suppose if each states of the nations hold separate army in the hands of all states, surely the states should fight between themselves within their country on varies motive issues and it will leads to the collapse of their country. Hence only the availability of army is the reason for the War Between the States. So it is the proved fact that is the cause of war between the countries is only the availability of the army in the hands of the countries. Now, many times most of the country of the defence acted as attack force not acted as defence force. The attacks leads to heavy destructions of life of the soldiers, public and also natural calamities. Sometimes some Nation likes to show their military power forces to other nations with intention of threatening mood and in the result of that unnecessary fight raised between the countries for each and every ordinary issues. The heavy war competition is arising due to the production of atom bombs and arms. Some Countries think it is pride to their country in the successful production of dangerous arms. Ever this produced arms by human will not protected by that arms. ln other hands it will be cause of destruction of human and their generation.
As all the states or provinces of an every nation have a common and single national armed forces to solve their issues with peacefully. So all the nations of the world should have a common and single world armed forces for the all nation's safety. Based on this ideology the United Nations Organisation should be converted as in the name of "United World Government"
or "United National Government" or "United National kingdom" with mono power to safe the every nation of the world. The all armed forces of the indiidual nations should be dissolved and forces should be surrendered to the United National Government. After surrender of the armed forces the security of the nations are safe guarded by the United National Government army. After the surrender of the particular number army to United National Government Army of every nations balance army should be dissolved. Now since there is no army in the hands of the nation there is no war between the nations. So the formation of United National Government and Army is now necessary to maintain the peace of the world. The formation and operation of the United National Government should be formed as detailed below.
(i)The United National Government should be constituted by the members of the every nation.
(ii)The each country should be sponsored a member on behalf of the country to the United National Government.
(iii)Every member of the each nation has a voting right to elect the president, vice president, ministers and other important official of the united nation government.
(iv)The voting points of the each nations should be calculated as per the total population and area of the nation.
(v)As per the calculated voting points of the nation, the members elected the president and others.
(vi)The period of the United National Government may be fixed as 5 or 6 years as likes.
(vii)After expiry of the ruling period the elected president and others should be resigned the post and re-election should be conducted and elected.
(viii)The members of the country may be recalled at any time and appoint new member at the place of recalled member by the country as like.
(ix)The United National Government should comprise three committees likewise 1.Peace committee which committee has power to ensure the safety and the peace of the total world. 2. Administrative committee which committee has power to collect the taxes from the countries, recruit the soldiers and other officials and maintain the day to day operation of the United National Government. 3. Justice committee which committee has power to enquire the issues which arises between the countries or any activities which is against to united nation government rule and has power to give punishment according to the world constitution acts which framed by the United National Government.
(x)The world president and other ministers ruled and acted as per the advise. of the majority decision taken by the committee. The president has power to rule over the world on behalf of the United National Government regarding peace of the world.
(xi)Based on the voting points of the concern nation should give the number of armies and other arms and financial contribution as tax to the united national government.
(xii)After surrender of army to the united national government the balance army of the every nation should be dissolved and the country does not involve any production of arms.
(xiii)Issues between the countries in connection with the border settlement, business conflicts, languages problems, religions conflicts should be discussed and solved only by the United National Government. The decision taken by the United National Government should be respected and followed by the concerned countries.
(xiv)The all country should be followed army act which passed by the united national government.
(xv)At the same time the United National Government should not involved in to the internal affairs of the nations.
(xvi)But If there is any country involved any activities which are against to the peace of the world directly and indirectly even though that activities are treated as internal affairs of the nation the United National Government has power to intervene the internal affairs matters and take necessary actions to control the unfair activities and necessary disciplinary actions may be taken against the nations as per the UNG act.
(xvii)Even though the UNG would not involved in the internal affairs of the country, if that country involved in the activities of genocide a particular group of people who are belonging to particular region or creed and the impact of the genocide If the peace of the neighbour country or world affected, the United National Government has power to the intervene and control the internal activities of genocide based on the recommendation of the security committee of UNG.
(xviii)The boundaries between the countries will be the final one during the formation of UNG. If there is any dispute arises between the countries the compromise settlement decision taken by the UNG is final and it should be accepted by the both country.
(xix)The UNG should not involved in the matter of culture, art, religion, language and custom and personality of the people of the each country.
(xx)Finally the UNG has vital power over the world to control the peace of the world and provide the security of the every nation and also has power to take actions against, nations are any group of the nations to disturbs world peace based on the recommendation of the peace committee.
(xxi)The UNG has right to collect the taxes from the country as per the voting points to maintained the government and also for the army.
(xxii)The UNG has power to land the army in the land of the each nation as per the advise of the nation for the security purpose. The number of the army and the nature of the army should be decided on the voting points and emergency need of the nations.
(xxiii)The UNG should be recruit the soldier for the army from the each country at the quota basis of the voting points.
(xxiv)If there is aggrieved nation by any order of the UNG may go to appeal to the world court which formed by the UNG. The world court Judges are appointed by the president on the majority recommendation of judiciary committee and the order passed by the World Court is final.
Finally all the country should obey the order of the UNG and the World court order for the welfare and the peace of the world.
5. I submit to add that the above detailed opinion letter has been sent to the petitioner on 25.11.2015 with request to forward the same to the General Secreatary of the United Nations. But no actions has taken. The petitioner sent a petition on 11.1.2016 to the respondent to send the reply about actions taken on the petitioner's opinion letter as per RTI Act. The respondent sent a reply letter on 12.2.2016 as simply stated as "No Action"
has been taken in this regard. This simple reply shows the negligence of the government. The reason for the No Action has not been explained in that letter.
6.The petitioner have send this proposal opinion letter not for the personal interest, it is for the world peace purpose. The petitioner has requested the respondent to forward the opinion letter with recommendation only to the United Nation Organisation. This respondent is not affected in any way for the act of the forwarding of the petitioner opinion letter with recommendation. If there is any wrong opinion found in the opinion letter it should be noted and returned by respondent with reason for return to the petitioner. But the respondent is not doing any thing than pending in the disposal.?
3.Supporting the prayer sought for, the petitioner has made the following grounds:-
''1.The lot of military people and as well as public are being killed by army in the name of war which was legally allowed by the Government. Main reason for the war is the availability of military in the hands of each nation. It should be abolished.
2.The lot of revenues are being spend for the military as unproductive unfair expenses. It creates the tax overburden to the public. It should be averted.
3.The family of the military people as well as military man is living separately without full enjoyment of joy life which is gifted by the God.
4.The world is running with fear of Third World War. This War fear should be averted.
5.The unfair competition is increasing in the production of arms and atom bombs which is the fastest weapon to abolish the human beings. It should be averted.
6.For the aversion of the above unfair war this petitioner send this opinion letter regarding abolition of the individual army of the nation and create the world common army to protect the world.''
4.Public Interest Litigations are for redressing the grievances of the people. But, unfortunately, it has been abused. On more than one occasion, Courts have held that Administration of justice should not be for any publicity interest litigation or private interest litigation or political litigation. Reference can be made to the following decisions:-
(a) In AIR 1993 SC 892 - Janata Dal vs. H.S.Chowdhary, the Supreme Court held as follows:-
"96.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 busybody 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."
(b) While observing that Public Interest Litigation is a weapon to be used with great care and circumspection, in 2008 (1) MLJ 1075 SC - Holicow Pictures Pvt.Ltd. v. P.C.Mishra, the Supreme Court has held as under:-
"20.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. .... 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. ....."
(c) In State of Uttaranchal v. Balwant Singh Chaufal, reported in (2010) 3 SCC 402, it has been held as follows:-
''178. We must abundantly make it clear that we are not discouraging the public interest litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the courts for improving ecology and environment, and the directions helped in preservation of forests, wildlife, marine life, etc. etc. It is the bounden duty and obligation of the courts to encourage genuine bona fide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the laws.
179. The public interest litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger public interest in consonance with the inherent spirits of the Constitution. The conditions of marginalised and vulnerable section of society have significantly improved on account of Courts? directions in PIL.
180. In our considered view, now it has become imperative to streamline the PIL.
181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(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 Courts 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.''
(d) In Union of India v. J.D. Suryavanshi, reported in (2011) 13 SCC 167, it has been held as follows:-
''7. In BALCO Employees? Union (Regd.) v. Union of India, 2002 (2) SCC 333 this Court held: (SCC p. 382, para 97) ?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 court is 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.?
(emphasis supplied)
(e) In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, reported in (2014) 1 SCC 161, it has been held as follows:-
''24. Ordinarily, after so stating we would have proceeded to scan the anatomy of the Act, the Rules, the concept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the Judge-made law within the constitutional parameters and serves as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the marginalised sections of the society and to check the abuse of power at the hands of the executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained; the people in impecuniosity do not die of hunger; the national economy is not jeopardised; the rule of law is not imperilled; human rights are not endangered; and probity, transparency and integrity in governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertaining to recovery of the sum from the holder of the post. We shall dwell upon the same at a later stage.
25. As advised at present, we may refer to certain authorities in the field in this regard. In Bandhua Mukti Morcha v. Union of India reported in 1984 (3) SCC 161 Bhagwati, J. (as His Lordship then was) had observed thus: (SCC p. 183, para 9) ?9. ? When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives.?
26. In D.C. Wadhwa v. State of Bihar reported in 1987 (1) SCC 378 the Constitution Bench, while entertaining a petition under Article 32 of the Constitution on behalf of the petitioner therein, observed that it is the right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions. It has also been stated therein that the rule of law constitutes the core of our Constitution and it is the essence of rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the constitutional limitation and if any practice is adopted by the executive which is in flagrant violation of the constitutional limitations, a member of the public would have sufficient interest to challenge such practice and it would be the constitutional duty of the Court to entertain the writ petition.
27. In Neetu v. State of Punjab reported in 2007 (10) SCC 614 the Court has opined that 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 litigation. Commenting on entertaining public interest litigations without being careful of the parameters by the High Courts the learned Judges observed as follows: (SCC p.
617, para 5) ?5. ?16. ? 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, [High Courts] are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilised for disposal of genuine cases.? (Ashok Kumar Pandey case 2004 (3) SCC 349, SCC p. 358, para 16)?
Thereafter, giving a note of caution, the Court stated:
?6. ?12. 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 armoury of law for delivering social justice to the citizens.? (B. Singh case reported in 2010 (3) SCC 402, SCC p. 372, para 12)?
28. In State of Uttaranchal v. Balwant Singh Chaufal, 2010 (3) SCC 402 this Court adverted to the growth of public interest litigations in this country, and the view expressed in various PILs and the criticism advanced and eventually conceptualised the development which is extracted below: (SCC p.
427, para 43) ?43. ? We deem it appropriate to broadly divide the public interest litigation in three phases:
? Phase I.?It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalised groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts.
? Phase II.?It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. etc. ? Phase III.?It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.?
31. Thus, from the aforesaid authorities it is quite vivid that the public interest litigation was initially evolved as a tool to take care of the fundamental rights under Article 21 of the Constitution of the marginalised sections of the society who because of their poverty and illiteracy could not approach the court. In quintessence it was initially evolved to benefit the have-nots and the handicapped for protection of their basic human rights and to see that the authorities carry out their constitutional obligations towards the marginalised sections of people who cannot stand up on their own and come to court to put forth their grievances. Thereafter, there have been various phases as has been stated in Balwant Singh Chaufal, 2010 (3) SCC 402.
It is also perceptible that the Court has taken note of the fact how the public interest litigations have been misutilised to vindicate vested interests for the propagated public interest. In fact, as has been seen, even the people who are in service for their seniority and promotion have preferred public interest litigations. It has also come to the notice of this Court that some persons, who describe themselves as pro bono publico, have approached the Court challenging grant of promotion, fixation of seniority, etc. in respect of third parties.
(f) In Jaipur Shahar Hindu Vikas Samiti v. State of Rajasthan, (2014) 5 SCC 530, it has been held as follows:-
''49. The concept of public interest litigation is a phenomenon which is evolved to bring justice to the reach of people who are handicapped by ignorance, indigence, illiteracy and other downtrodden people. Through the public interest litigation, the cause of several people who are not able to approach the court is espoused. In the guise of public interest litigation, we are coming across several cases where it is exploited for the benefit of certain individuals. The courts have to be very cautious and careful while entertaining public interest litigation. The judiciary should deal with the misuse of public interest litigation with iron hand. If the public interest litigation is permitted to be misused the very purpose for which it is conceived, namely, to come to the rescue of the poor and downtrodden will be defeated. The courts should discourage the unjustified litigants at the initial stage itself and the person who misuses the forum should be made accountable for it. In the realm of public interest litigation, the courts while protecting the larger public interest involved, should at the same time have to look at the effective way in which the relief can be granted to the people whose rights are adversely affected or are at stake. When their interest can be protected and the controversy or the dispute can be adjudicated by a mechanism created under a particular statute, the parties should be relegated to the appropriate forum instead of entertaining the writ petition filed as public interest litigation.''
5.Writ of mandamus cannot be issued merely because a person is praying for. One must first establish a right and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said legal position is well settled in a series of decisions.
(a) In Comptroller and Auditor General of India vs. K.S.Jegannathan, reported in AIR 1987 SC 537 = 1986 (2) SCC 679, a Three-Judge Bench of the Honourable Apex Court referred to Halsbury's Laws of England 4th Edition, Vol.I. Paragraph 89, about the efficacy of mandamus:
?89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.?
(b) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:
10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(c) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Hon'ble Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(d) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus, ?11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well- settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)
15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.
Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities....?
6.In matters relating to Public Interest writ petitions, the Hon'ble Supreme Court has held that frivolous and vexatious public interest writ petitions, wasting the precious time of the Court, should not be entertained. The Hon'ble Supreme Court has also cautioned about the filing of such writ petitions, which have no public interest and awarded costs. In this context, we wish to add few more judgments.
(a) In (1993) 2 SCC 597 ? Jai Shankar Prasad, Advocate v. State of Bihar and Others, a member of the Bar filed a Public Interest Litigation under Article.226 of the Constitution of India, praying for Writ of Quo Warranto. It was dismissed. He moved the Hon'ble Supreme Court. While dismissing the Appeal, cost of Rs.5,000/- was awarded to him.
(b) In (2005) 5 SCC 330 ? Sanjeev Bhatnagar v. Union of India and others, a Public Interest Litigation was filed under Article.32 of the Constitution of India seeking for a direction to the Union of India to delete the word 'Sindh' from National Anthem. Observing that the Writ petition, is wholly devoid of merits and in Private Interest, and to discourage filing of such like petition, which result only, in wasting the time, Hon'ble Supreme Court, awarded a cost of Rs.10,000/-.
(c) In (2004) 3 SCC 349 ? Ashok Kumar Pandey v. State of West Bengal, the Hon'ble Supreme Court held as follows:-
?4. 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 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].
(c-1).Though during the course of hearing of the writ petition, we indicated to the party in person that the writ petition deserves to be dismissed with costs, he replied that the writ petition has been filed in public interest, and therefore, we are constrained to consider what 'Public Interest' means and as explained by the Hon'ble Supreme Court in Ashok Kumar Pandey's case. Paragraphs 5 to 7 of Ashok Kumar Pandey's case read thus,
5. 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."
6. 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...."
7. In AIR 1993 SC 892 - Janata Dal vs. H.S.Chowdhary, this Court considered the scope of public interest litigation. In para 53 of the said judgment, after considering what is public interest, has laid down as follows:
"53. 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 some interest by which their legal rights or liabilities are affected."
11. 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 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.
12. 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.
(d) In Buddi Kota Subbarao (Dr) v. K.Parasaran, reported in (1996) 5 SCC 530, the Hon'ble Supreme Court held that easy access to Justice should not be used as License to file misconceived and frivilous petition. So saying the Hon'ble Supreme Court in Ashok Kumar Pandey's case at para.15 said thus.
?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.?
While considering frivilous pleas, at para.16 the Hon'ble Supreme Court said:
?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.?
(e) In State of Uttaranchal v. Balwant Singh Chaufal and Others, reported in (2010) 3 SCC 402, the Hon'ble Supreme Court held that a practising Lawyer filed a Public Interesst Litigation challenging the appointment of the Advocate General on the ground that he had crossed 62 years of age, not entitled to become a Judge of the High Court and therefore not entitled to be appointed as Advocate General. Tracing the history of Public Interest Litigation, genesis and source, at paras, 159 to 164, on the aspect of awarding costs, considered, the decisions as hereunder:-
159. The malice of frivolous and vexatious petitions did not originate in India. The jurisprudence developed by the Indian judiciary regarding the imposition of exemplary costs upon frivolous and vexatious PIL petitions is consistent with jurisprudence developed in other countries. U.S. Federal Courts and Canadian Courts have also imposed monetary penalties upon public interest claims regarded as frivolous. The courts also imposed non-monetary penalties upon Advocates for filing frivolous claims. In Everywoman's Health Centre Society v. Bridges 54 B.C.L.R. (2nd Edn.) 294, the British Columbia Court of Appeal granted special costs against the Appellants for bringing a meritless appeal.
160. U.S. Federal Courts too have imposed monetary penalties against plaintiffs for bringing frivolous public interest claims. Rule 11 of the Federal Rules of Civil Procedure ("FRCP") permits Courts to apply an "appropriate sanction" on any party for filing frivolous claims. Federal Courts have relied on this rule to impose monetary penalties upon frivolous public interest claims.
161. For example, in Harris v. Marsh 679 F.Supp. 1204 (E.D.N.C. 1987), the District Court for the Eastern District of North Carolina imposed a monetary sanction upon two civil rights plaintiffs for bringing a frivolous, vexatious, and meritless employment discrimination claim. The Court explained that "the increasingly crowded dockets of the federal courts cannot accept or tolerate the heavy burden posed by factually baseless and claims that drain judicial resources." As a deterrent against such wasteful claims, the Court levied a cost of $83,913.62 upon two individual civil rights plaintiffs and their legal counsel for abusing the judicial process.
162. Case law in Canadian Courts and U.S. Federal Courts exhibits that the imposition of monetary penalties upon frivolous public interest claims is not unique to Indian jurisprudence.
163. Additionally, U.S. Federal Courts have imposed non- monetary penalties upon Attorneys for bringing frivolous claims. Federal rules and case law leave the door open for such non-monetary penalties to be applied equally in private claims and public interest claims. Rule 11 of the FRCP additionally permits Courts to apply an "appropriate sanction" on Attorneys for filing frivolous claims on behalf of their clients. U.S. Federal Courts have imposed non-monetary sanctions upon Attorneys for bringing frivolous claims under Rule 11.
164. In Frye v. Pena 199 F.3d 1332 (Table), 1999 WL 974170, for example, the United States Court of Appeals for the Ninth Circuit affirmed the District Court's order to disbar an Attorney for having "brought and pressed frivolous claims, made personal attacks on various government officials in bad faith and for the purpose of harassment, and demonstrated a lack of candor to, and contempt for, the court."
This judicial stance endorses the ethical obligation embodied in Rule 3.1 of the Model Rules of Professional Conduct ("MRPC"):
"3.1. a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous."
Together, the FRCP, U.S. federal case law, and the MRPC endorse the imposition of non-monetary penalties upon attorneys for bringing frivolous private claims or public interest claims.
Ultimately at paragraph 176 in the State of Uttaranchal's case, the Hon'ble Supreme Court directed the Writ petitioners before the High Court to pay cost of Rs.1,00,000/- in the name of the Registrar General of the High Court of Uttarakhand.
At para.178 further added that ?It is the bounden duty and obligation of the courts to encourage PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the Laws.?
(f) In Dattaraj Nathuji Thaware v. Sate of Maharastra and Others, reported in (2005) 1 SCC 590 an Advocate filed a public Interest Litigation. Adverting to the facts of the case and holding that the Public Interest Litigation was a frivilous petition, the Hon'ble Supreme Court sustained cost of Rs.25,000/- already imposed by High Court.
7.The Preamble of the Constitution reads as follows :-
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
8.Guiding principles of the Hon'ble Supreme Court are that it is the bounden duty and obligation of the Courts to encourage genuine bona fide public interest litigants, and to pass directions and orders in public interest, in consonance with the Constitution of India and the laws. Judicial interference is required if there is any injury to the public, because of the dereliction of Constitutional obligations on the part of the Government and the Court will interfere only if there is a clear violation of the Constitutional or statutory provisions or non compliance by the State with the Constitutional or statutory provisions. While exercising the extraordinary jurisdiction under Article 226 or Article 32 of the Constitution of India, Courts should be concerned only with realisation of the constitutional objectives. As observed by the Hon'ble Supreme Court in Neetu vs. State of Punjab, reported in 2007 (10) SCC 614, the averments in the affidavit do not satisfy even a miniscule percentage of a public interest litigation.
9.The request of the petitioner to forward his personal opinion to the General Secretary of United Nations, to change its name as ''United National Government and Army'' does not fall within the framework of the Constitution of India. Relief under Articles 226 or 32 of the Constitution of India is only to protect, safeguard and for the purpose of enforcement of the rights, guaranteed under the Constitution of India, statutory or customary, recognised by law.
10.'Frivolous', as per Black's Law Dictionary, 10th Edition, means, lacking a legal basis or legal merit; not serious; not reasonably purposeful. The present writ petition filed by [email protected] is frivolous.
11.The petitioner, a practising advocate, has sought for a frivolous prayer, to issue a Writ of Mandamus, against the Secretary of External Affairs, Ministry of India, (United Nations Political Division), New Delhi, to forward his opinion, with recommendations, to the General Secretary of United Nations.
12.In the light of the guiding principles and finding that the writ petition is frivolous, the writ petition is dismissed with costs of Rs.10,000/- to be paid by the petitioner, to the District Legal Services Authority, Madurai, within a period of one month from today, failing which, the said authority is permitted to take action against the petitioner for recovery of the said amount.
To The Secretary of External Affairs, Ministry of India (United Nations Political Division) Jawaharlal Nehru Bhavan, 23 D Janpath, New Delhi ? 110 011