Full Judgment Text
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PETITIONER:
STATE OF HIMACHAL PRADESH
Vs.
RESPONDENT:
A PARENT OF A STUDENT OF MEDICAL COLLEGE. SIMLA & ORS
DATE OF JUDGMENT11/04/1985
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
MISRA RANGNATH
CITATION:
1985 AIR 910 1985 SCR (3) 676
1985 SCC (3) 169 1985 SCALE (1)758
CITATOR INFO :
R 1986 SC 847 (34)
RF 1989 SC1899 (23)
R 1990 SC1251 (11)
R 1990 SC1692 (30)
RF 1991 SC1792 (6)
ACT:
Constitution of India 1950 , Articles 32 and 226 Public
Interest Litigation
Practice & Procedure
Courts-Public Interest litigation-Entertainment of-When
arises
Letter treated as Writ Petition-Disclosure of identity
of petitioner- Necessity of.
Legislation-Initiation of-Giving of directions by
Court-Validity of.
HEADNOTE:
The Chief Justice of the High Court received a letter
from the guardian of a student of the Medical College in
Simla complaining about the ragging of freshers by senior
students within as also outside the college campus and the
hostel. The guardian of the student had annexed along with
the said letter to the Chief Justice , a letter received by
him from his son. The Division Bench of the High Court
presided over by the Chief Justice treated these two letters
as constituting the Memo of Writ Petition , but directed
that these two letters should not be placed on the record of
the proceeding in view of the request made by the guardian
that the identity of the writer should not be disclosed in
the proceedings.
The Division Bench registered the two letters as a Writ
Petition , and issued notice to the State Government, and
the Principal of the Medical College. After bearing the
respondents the Division Bench came to the conclusion that
the practice of ragging was prevalent in the Medical College
on a noticeable scale and that ragging took the form of
subjecting freshers including female students to inhuman and
humiliating treatment degenerating even into physical
violence
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and that the college authorities had not been able to
effectively control such ragging. It gave various directions
which included a direction to the State Government to
constitute a Committee-Anti-Ragging Committee-to go into the
question and make recommendations in regard to the curative
, preventive and punitive measures to be adopted by the
college authorities to control and curb the evil of ragging.
Anti-Ragging Committee recommended that the State
Government could initiate legislation which makes ragging a
cognizable offence an l prescribe punishment commensurate
with the crimes committed.
When the matter was taken up again for hearing the
Division Bench directed the State Government to file an
affidavit indicating the action taken on the Report. An
affidavit to the effect that the State Government had ’taken
notice of the recommendations to initiate legislation this
behalf if found necessary and so advised," was filed on
behalf of the State Government. The Division Bench further
directed the State Government to initiate legislation
against ragging and for this purpose granted the State
Government 6 weeks’ time.
In the appeal by the State , to this Court it was
contended that the Court could not give directions to the
State Government to initiate legislation on ragging-
Allowing the Appeal.
^
HELD. t. The Division Bench was clearly in error in
issuing a direction to the Chief Secretary to file an
affidavit within 6 weeks setting out the action taken by the
State Government with a view to implementing the Committee’s
recommendation. [684]
2. The direction given by the Division Bench was really
nothing short of an indirect attempt to compel the State
Government to initiate legislation with a view to curbing
the evil of ragging. [683C]
3. It is entirely a matter for the executive branch of
the Government to decide whether or not to introduce any
particular legislation. But the Court certainly cannot
mandate the executive or any member of the legislature to
initiate legislation , howsoever necessary or desirable the
Court may consider it to be. That is not a matter which is
within the sphere of the functions and duties allocated to
the judiciary under the Constitution. [683E-F]
4. If the executive is not carrying out any duty laid
upon it by the Constitution or the law , the Court can
certainly require the executive to carry out such duty and
this is precisely that the Court does when it entertains
public interest litigation. [683F]
678
s. When the Court passes any orders in public interest
litigation , the Court does so not with a view to mocking
at legislative or exhaustive authority or in a spirit of
confrontation but with a view to enforcing the Constitution
and the law , because it is vital for the maintenance of
the rule of law that the obligations which are laid upon the
executive by the Constitution and the law should be carried
out faithfully and no one should go away with a feeling that
the Constitution and the law are meant only for the benefit
of a fortunate few and have no meaning for the large number
of half-clad half-hungry people of this country. [684B-C]
6. It is now settled law that this Court under Article
32 , and the High Courts under Article 226 , can treat a
letter as a Writ Petition and take action upon it. It is not
every letter which may be treated as a Writ Petition by the
Supreme Court or the High Court. It is on , y where a letter
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is addressed by an aggrieved person or by a public spirited
individual or a social action group for enforcement of the
constitutional or legal rights of a persons who by reason of
poverty , disability or socially or economically
disadvantaged position find it difficult to approach the
court for redress that the Supreme Court or the High Court
would be justified , nay bound , to treat the letter as a
Writ Petition. There may also be cases where even a letter
addressed for redressal of a wrong done to an individual may
be treated as a Writ Petition where the Supreme Court or the
High Court considers it expedient to do so in interests of
justice. This is an innovative strategy which has been
evolved by the Supreme Court. It is a highly effective
weapon in the armoury of the law for reaching social justice
to the common man. [684G-H; 685A-C]
7. The Division Bench was , certainly right in
entertaining the two letters as a Writ Petition , but it
was wholly in error in directing that these two letters on
which the Division Bench acted should not be placed on the
record of the proceedings and the identity of the guardian
and the student should not be , disclosed. It would be
contrary to all canons of fair play and violative of all
principles of judicial propriety and administration to
entertain a Writ Petition without disclosing the identity of
the petitioner, though the court , knows who the
petitioner is. [685D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1499 of
1985.
From the Judgment and order dated 18.9.84 of the High
Court of Himachal Pradesh in C.W.P. No. 155/84.
K. Parasaran , Attorney General. A. K. Ganguli and A.K
Chakravorty , for the Appellant.
The Judgment of the Court was delivered by
BHAGWATI , J. This appeal by special leave is directed
against
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two orders made by a division Bench of the High Court of
Himachal Pradesh , one dated 24th July , 1984 and the
other dated 18 September 1984 , in so far as they direct
the Chief Secretary to the Government of Himachal Pradesh to
file an affidavit setting out what action has been taken by
the State Government towards implementation of the
recommendation contained in paragraph 16 of the Report of
the Anti-Ragging Committee. The impugned orders are in our
opinion wholly unsustainable and ordinarily we would not
have taken time to deliver a reasoned judgment and merely
set aside the impugned orders with a brief observation,
but we think it necessary to state in some detail our
opinion in regard to the directions given in the impugned
orders , because we find that this is one of those few
cases which demonstrates what we have often said before that
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 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. D
It appears that the Chief Justice of the High Court
received a letter dated 4th April , 1984 , from the
guardian of a student of the Medical College in Shimla
complaining about the ragging of freshers by senior students
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within as also outside the college campus and the hostel.
The guardian of the student had annexed along with his
letter to the Chief Justice a letter dated 25th March,
1984 received by him from his son. The Division Bench of the
High Court presided over by the Chief Justice treated these
two letters as constituting the Memo of Writ Petition but
directed that these two letters should not be placed on the
record of the proceedings in view of the request made in
paragraph 6 of the letter of the guardian that the identity
of the writer should not be disclosed on account of fear of
reprisal and for the self-same reason the Division Bench
ordered that the identity of the student and the guardian
should not be disclosed in the proceedings. The Division
Bench treating the two letters as a writ petition registered
them as Civil Writ Petition No. 155 of 1984 and issued
notice to the State Government , the Principal of the
Medical College Simla , the Himachal Pradesh University and
the Director of Health Services , Government of Himachal
Pradesh who were arrayed as respondents Nos. 1 to 4. On
receipt of the notice of the Writ Petition , the Government
of Himachal Pradesh filed an affidavit setting out the steps
which the H
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State Government and the college authorities had taken to
check the ragging of freshers by senior students. The
Director of Medical Education-cum-Principal of the Medical
College , Simla also filed an affidavit opposing the
admission of the Writ Petition on the ground that the
college authorities had taken various steps for the purpose
of curbing the evil of ragging and in fact had taken action
On at least two occasions awarding punishment to the
students who indulged in ragging by suspending them for a
period of 4 to 6 months , The Division Bench , on a
consideration of this material placed before it , came to
the conclusion that the practice of ragging was prevailing
in the Medical College , Simla on a noticeable scale and
that ragging took the form of subjecting freshers including
female students to inhuman and humiliating treatment
degenerating even - into physical violence and that the
college authorities had not been able to effectively control
ragging with the result that the college administration had
lost confidence of a sizeable section of student , parents
and well-wishers as regards its capacity to deal with the
problem of ragging. The Division Bench accordingly gave
various directions which included a direction to the State
Government to constitute a committee consisting of the Vice-
Chancellor of the Himachal Pradesh University and the
Secretary to the Government , Health Department ,
interalia , to make "recommendations in regard to the
curative, preventive and punitive measures to be adopted by
the college authorities to control and curb the evil of
ragging and the machinery to be set up to enforce these
measures." This Committee which we shall for the sake of
convenience refer to as the Anti-Ragging Committee , was to
complete its work and submit its report within a period of
six months from the date of its constitution.
The Anti-Ragging Committee submitted its Report to the
High Court on 26th June , 1984. The Report contained
various recommendations intended to control and curb the
ragging of freshers by senior students in the Medical
College and its hostel. We are concerned here with only one
recommendation namely that contained in paragraph 16 of the
Report which was in the following terms:
"In quite a number of States in the country there
are Acts on ragging which make ragging a cognizable offence
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681
and prescribe the types of punishment commensurate with
the crimes committed. The Himachal Pradesh Government
could be suggested to initiate such a legislation as
early as possible. Pending such a legislation by the
State Government, the University authorities could
think of incorporating some provisions relating to
ragging in the relevant ordinance of Discipline in the
Ordinance of the University.
The Division Bench by its order dated 24th July, 1984
gave directions for implementation of the various
recommendations made in the Report and so far as
recommendation contained in paragraph 16 of the Report was
concerned, the Division Bench said: "The Chief Secretary to
the State Government will file an affidavit within a period
of 3 months from the date of receipt of the writ setting out
the action proposed to be taken on the recommendation
contained in paragraph 16 (First Part) of the relevant
portion of the Report." Though this direction ostensibly did
no more than call upon the Chief Secretary to inform the
Court as to what action the State Government proposed to
take on the recommendations to initiate legislation for
curbing ragging, it was, in fact and substance, intended to
require the State Government to Initiate legislation on the
subject. If this direction were merely an innocuous one
intended to inform the court whether the State Government
intended to take any action on the recommendation to
initiate legislation against ragging, no objection could
possibly be taken against it, because it would leave the
Government free to decide whether or not to initiate
legislation in regard to ragging without mandatorily
requiring the State Government to do so- But as the
subsequent event would show, what the Division Bench
intended to achieve by giving this direction was not just to
obtain information as to what the State Government proposed
to do in the matter but to actually require the State
Government to initiate legislation against ragging. That is
why, when the Chief Secretary in deference to this direction
filed an affidavit stating, inter-alia, that the State
Government had "taken notice of the recommendation to
initiate legislation in this behalf, if found necessary and
so advised", the Division Bench was not satisfied with this
statement of the Chief Secretary and declined to close the
proceeding so far as this particular aspect was concerned
and proceeded, inter-alia, to reiterate in its order dated 1
8th September 1984:
682
"The Chief Secretary to the State Government will
file an affidavit within a period of 6 weeks from the
date of receipt of the Writ setting out the further
action taken in the direction of the implementation of
the recommendation contained in paragraph 16 (First
Part) of the relevant portion of the Report of the
Anti-Ragging Committee."
When this direction was given by the Division Bench, it
clearly implied that what the Division Bench wanted the
State Government to do was to initiate legislation against
ragging and for this purpose, time of 6 weeks was granted to
the State Government The State Government thereupon
preferred the present appeal with special leave obtained
from this Court.
We may point out, even at the cost of repetition, that
the direction given by the Division Bench in its order dated
24th July 1984 and reiterated in its order dated 18th
September 1984 was not an innocuous direction issued merely
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for the purpose, of informing the Court as to what the State
Governing proposed to do in regard to the recommendation in
paragraph 16 of the Report to initiate legislation against
ragging. The Division Bench would have been certainly
justified in enquiring from the Chief Secretary as to what
action the State Government proposed to take in regard to
the recommendation of the- Anti-Ragging Committee to
initiate legislation on the subject of ragging. Such enquiry
could have been legitimately made by the Division Bench for
the purpose of obtaining information on a matter which the
Division Bench regarded, and in our opinion rightly, as
necessary for eradicating the evil practice of ragging which
is not only subversive of human dignity but also
prejudicially affects the interests of the students and the
discipline in the Campus and no exception could have been
taken to it because it would have left the State Government
free to decide whether or not to initiate any legislation on
the subject and not mandatorily required the State
Government to initiate any such legislation. If such only
were the purpose of the direction issued by the Division
Bench and the Division Bench did not intend anything more,
the Division Bench would have closed the proceedings when
the Chief Secretary intimated in his affidavit that the
State Government would initiate legislation in this behalf
"if found necessary and so advised". But despite this
statement made by
683
the Chief Secretary on behalf of the State Government, the
Division Bench persisted in reiterating its direction that
the Chief Secretary should file an affidavit within a
further period of 6 weeks setting out the further action
taken by the State Government in the direction of
implementation of the recommendation contained in paragraph
16 of the Report. This persistence in reiterating the
direction to file an affidavit setting out the action taken
by the State Government towards implementation of the
recommendation to initiate legislation against ragging,
clearly shows that what the Division Bench intended was not
merely to obtain information as to what action the State
Government proposed to take but to obligate the State
Government to take action by way of initiation of
legislation against ragging. The direction given by the
Division Bench was really nothing short of an indirect
attempt to compel the State Government to initiate
legislation with a view to curbing the evil of ragging, for
otherwise it is difficult to see why, after the clear and
categorical statement by the Chief Secretary on behalf of
the State Government that the Government will introduce
legislation if found necessary and so advised, the Division
Bench should have proceeded to again give the same
direction. This the Division Bench was clearly not entitled
to do. It is entirely a matter for the executive branch of
the Government to decide whether or not to introduce any
particular legislation. Of course, any member of the
legislature can also introduce legislation but the court
certainly cannot mandate the executive or any member of the
legislature to initiate legislation, howsoever necessary or
desirable the Court may consider it to be. That is not a
matter which is within the sphere of the functions and
duties allocated to the judiciary under the Constitution. If
the executive is not carrying out any duty laid upon it by
the Constitution or the law, the Court can certainly require
the executive to carry out such duty and this is precisely
what the Court does when it entertains public interest
litigation. Where the Court finds, on being moved by an
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aggrieved party or by any public spirited individual or
social action group, that the executive is remiss in
discharging its obligations under the Constitution or the
law, so that the poor and the under privileged continue to
be subjected to exploitation and injustice or are deprived
of their social and economic entitlements or that social
legislation enacted for their benefit is not being
implemented thus depriving them of the rights and benefits
conferred upon them, the Court certainly can and must
684
intervene and compel the Executive to carry out its
constitutional and legal obligations and ensure that the
deprived and vulnerable sections of the community are no
longer subjected to exploitation or injustice and they are
able to realise their social and economic rights. When the
Court passes any orders in public interest litigation, the
Court does so not with a view to mocking at legislative or
executive authority or in a spirit of confrontation but with
a view to enforcing the Constitution and the law, because it
is vital for the maintenance of the rule of law that the
obligations which are laid upon the executive by the
Constitution and the law should be carried out faithfully
and no one should go away with a feeling that the
constitution and the law are meant only for the benefit of a
fortunate few and have no meaning for the large numbers of
half-clad, half-hungry people of this country. That is a
feeling which should never be allowed to grow. But at the
same time the Court cannot group the function assigned to
the executive and the legislature under the Constitution and
it cannot even indirectly require the executive to introduce
a particular legislation or the legislature to pass it or
assume to itself a supervisory role over the law making
activities of the executive and the legislature- We are,
therefore of the vie-that the Division Bench was clearly in
error in issuing a direction to the Chief Secretary to file
an affidavit within 6 weeks setting out the action taken by
the State Government with a view to implementing the
recommendation contained in paragraph 16 of the Report.
There is also one other error into which the Division
Bench of the High Court seems to have fallen. The Division
Bench of the High Court treated the letter of the guardian
of the student along with the letter addressed to the
guardian by the student as constituting a memo of Writ
Petition. This was certainly within the jurisdiction of the
High Court to do, since it is now settled law that this
Court under Article 32 of the Constitution and the High
Courts under Article 226 of the Constitution can treat a
letter as a Writ Petition and take action upon it. We may of
course make it clear that it is not every letter which may
be treated as a Writ Petition by the Supreme Court or the
High Court. It is only there a letter is addressed by an
aggrieved person or by a public spirited individual or a
social action group for enforcement of the constitutional or
legal rights of a person in custody or of a class or group
of persons who by reason of poverty, disability or
sociallity
685
or economically disadvantaged position find it difficult to
approach the court for redress that the Supreme Court or the
High Court would be justified, nay bound, to treat the
letter as a Writ Petition. There may also be cases where
even letter addressed for redressal of a wrong done to an
individual may be treated as a Writ Petition where the
Supreme Court or the High Court considers it expedient to do
so in the interests of justice. This is an innovative
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strategy which has been evolved by the Supreme Court for
the purpose of providing easy access to justice to the
weaker sections of Indian humanity and it is a powerful tool
in the hands of public spirited individuals and social
action groups for combating exploitation and injustice and
securing for the under-privileged segments of society their
social and economic entitlements. It is a highly effective
weapon in the Armour of the law for reaching social
justice.: to the common man. The Division Bench was,
therefore, certainly right in entertaining the two letters
as a Writ Petition and no exception can be taken to it, but
it was wholly in error in directing that these two letters
on which the Division Bench acted should not be placed on
the record of the proceedings and the identity of the
guardian and the student should not be disclosed It is
difficult to see how any proceedings can be entertained by
the Court keeping the petitioner before it anonymous or his
identity secret. If the identity of the petitioner is not
disclosed, how would the respondent against whom relief is
sought ever he able to verify the authenticity of the
petitioner and the credibility of the case brought by him.
It would be contrary to all canons of fair play and
violative of all principles of judicial propriety and
administration to entertain a Writ Petition without
disclosing the identity of the petitioner, though the court
knows who the petitioner is. We are, therefore, of the
opinion that the procedure adopted by the Division Bench was
wrong and the Division Bench was not justified in directing
that the two letters on which action was initiated by the
Division Bench should not be kept in the record of the
proceedings and that the identity of the guardian and the
student should not be disclosed.
We accordingly allow the appeal and set aside the
orders dated 24th July, 1984 and 18th September, 1984 in so
far as they direct the Chief Secretary to file an affidavit
setting out the action taken by the State Government in
implementing the recommendation contained in paragraph 16 of
the Report of the Anti-ragging Committee. There will be no
order as to costs of the appeal.
N.V.K. Appeal allowed.
686