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TMI Blog1988 (8) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement of fundamental rights of a disabled segment of the citizenry disputed. The question agitated relates, on the contrary, to the aspect whether a public-minded person who brings such an action is entitled, as of right, to withdraw the proceedings from the court. Applicant asserts that this Court cannot refuse leave for withdrawal. The proceedings, it is contended, are the result of a voluntary action of a citizen and that, as a corollary, the proceedings cannot be continued except with applicant's participation. The applicant relies on what she calls a citizen's right to be a petitioner-in-person in a public interest litigation . As stemming from this premise, applicant contends that not only that leave for withdrawal cannot be refused but also that the main petition cannot be continued by any other citizen or organisation. 2. No elaborate arguments are, indeed, necessary to decide a question such as this; but out of deference to the applicant's submission that the propositions she propounds in this behalf be considered by the court, we proceed to do so. 3. Applicant, on certain perceptions and assessment of her own, both as to the effectiveness and utilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that she as representing other conscientious citizens, social workers and activists is duty bound to sustain the citizen's right to be petitioners-in-person and that, therefore, the petition cannot be continued against the wishes and without the participation of the applicant. 5. The applicant's stand on these points are put across, according to the learned Counsel for respondents, in over assertive tone of great severity but of questionable propriety. But we should not allow ourselves to be influenced by this. The applicant's references to the manner of conduct of the proceedings are certainly unflattering to the Court. But the concern of this Court for and its achievements in the field of public interest litigation are open to the public-assessment; and the assessments even of those immersed in an individual experience and where objectivity might, episodically, be clouded should also serve some purpose-of introspection. Though the language employed in relation to the Court is not conspicuous for its moderation, we may yet examine objectively the justifiability, if any, for such strong expressions of remonstrance. 6. In regard to the first area, applicant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economic disadvantages cannot themselves assert-and quite often not even aware of-those rights. The technique of public interest litigation serves to provide an effective remedy to enforce these group-rights and interests. In order that these public-causes are brought before the Courts, the procedural techniques judicially innovated specially for the of public interest action recognises the concomitant need to lower the Locus-standi-thresholds so as to enable public-minded citizens or social-action-groups to act as conduits between these classes of persons of inherence and the forum for the assertion and enforcement of their rights. The dispute is not comparable to one between private-parties with the result there is no recognition of the status of a Dominus-Litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The rights of those who bring the action on behalf of the others must necessarily by subordinate to the interests of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court from time to time in the proceedings. In order to appreciate the position, perhaps, it would be relevant to refer to the prayers made in the main petition and the orders passed from time to time even prior to a month of November, 1986. The prayer in the main petition was that this Court should pass order directing the Respondent-States: (a) to release all children detained in the jails in the respondent States; (b) to furnish complete information respecting all children detained in the States and the circumstances and the legal facts of such detention and the number of available juvenile courts and children homes; (c) to appoint district judges of the districts to visit jails, sub-jails and lock-ups to identify and release children in such illegal detention; (d) to requisition immediately necessary buildings and provide infrastructure and make immediate interim arrangements for places of housing of children facing trial before juvenile courts. The petition also seeks directions to the respective States, Legal Aid Boards, District Legal Aid Committees through the appointment of 'duty-counsel' to ensure protection of the rights of the children etc. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or destitute and who have no one of take care of them. They are lodged in various jails in different states.... ...The State Governments must take care of these mentally or physically handicapped children and remove them to a Home where they can be properly looked after and so far as the mentally handicapped children are concerned, they can be given proper medical treatment and physically handicapped children may be given not only medical treatment but also vocational training to enable them to earn their livelihood. Those children who are abandoned or lost and are presently kept in jails must also be removed by the State Governments to appropriate places where they can be looked after and rehabilitated.... ...We would also ask the Director General, All India Radio and the Director General, Doordarshan to give publicity requesting non-governmental social service organisations to offer their services for the purpose of accepting these children with a view to taking care of them and providing for their rehabilitation in accordance with a hand-out to be sent by the Registrar of this Court. There are two girls in the Julpaiguri District Jail who have been kept in that j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hierarchy of the judicial system. Failure to submit the reports within the time set by the Court has required adjournment of the hearing of the writ petition on more than one occasion. We are equally surprised that the High Courts have remained aloof and indifferent and have never endeavoured to ensure submission of the reports by the District Judges within the time indicated in the order of this Court. We direct that every defaulting District Judge who has not yet submitted his report shall unfailingly comply with the direction and furnish the report by August 31, 1986, through his High Court and the Registrar of every High Court shall ensure that compliance with the present direction is made. ... ... ...We are of the view that the petitioner should have access to information and should be permitted to visit jails, children's homes, remand homes, observation homes, borstal schools and all institutions connected with housing of delinquent or destitute children. We would like to point out that this is not an adversary litigation and the petitioner need not be looked upon as an adversary. She has in fact volunteered to do what the State should have done. We expect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial. On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail. ... ... ...It is absolutely essential, and this is something which we wish to impress upon the State Governments with all the earnestness at our command, that they must set up Juvenile Courts, one in each district, and there must be a special cadre of Magistrates who must be suitably trained for dealing with cases against children. They may also do other criminal work, if the work of the Juvenile Court is not sufficient to engage them fully, but they must have proper and adequate training for dealing with cases against juveniles, because these cases require a different type of procedure and qualitatively a different kind of approach. We would also direct that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d where this Court cannot be content with the expectation of compliance with its orders in these proceedings but would have to go further and exact it. The States have to be more honest about their obligations to the delinquent-children. Children misbehave because, perhaps, the society and the elders have,-may be-behaved worse. Society is becoming increasingly inhospitable to its weak. By ignoring the non-custodial alternatives prescribed by law and exposing the delinquent-child to the trauma of custodial-cruelty, the state and the society run the serious risk of losing the child to the criminal clan. This is no more a matter of concession to the child; but its constitutional and statutory right. Even so. unduly harsh and coercive measures against the states and the authorities might themselves become counter-productive. In the matter of affirmative-action the willing cooperation of the authorities must, as far as possible, be explored. If the proceedings are allowed to be diverted at every stage into punitive proceedings for non compliance, the main concern and purpose of the proceedings might tend to be over-shadowed by its incidental ramifications. The coercive action would, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in the proceedings. Applicant says: ...Therefore, it is important to establish principles of accountability of the GOI, the States and the Judiciary. In the last analysis both the dignity of the Court, the honour of the institution of judiciary and the effectiveness of judicial process are at stake. We are afraid, the references to judicial-accountability, having regard to the specific-context in which they are made in the context, really mean no more than that the proceedings are to be conducted in conformity with the standards of promptitude and dispatch of which the applicant chooses to constitute herself the judge, to sit in judgment over the alleged short-comings in that behalf. The concept of public accountability of the judicial system is, indeed, a matter of vital public-concern for debate and evaluation at a different plane. All social and political institutions are under massive challenges and pressures of reassessment of their relevance and utility. Judicial institutions are no exception. The justification for all public institutions are related to and limited by their social relevance, professional competence and ability to promote the common-weal. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticise the systemic inadequacies, in the larger public interest. It is the privileged right of the Indian citizen to believe what he considers to be true and to speak-out his mind, though not, perhaps, always with the best of tastes; and speak perhaps, with greater courage than care for exactitude. Judiciary is not exempt from such criticism. Judicial institutions are, and should be made, of stronger stuff intended to endure and thrive even in such hardy climate. But we find no justification to the resort to this freedom and privilege to criticise the proceedings during their pendency by persons who are parties and participants therein. 12. The first ground, therefore, does not justify the withdrawal of this public interest litigation. If we acknowledge any such status of a Dominus-Litis to a person who brings a public interest litigation, we will render the proceedings in public interest litigations vulnerable to and susceptible of a new dimension which might, in conceivable cases, be used by person for personal-ends resulting in prejudice to the public-weal. 13. The second ground for withdrawal is no better. The ground is that the applicant, in view of what transpired in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate but one of the manner of its exercise. But the applicant does not seem to appreciate this. Indeed she did exercise her right and made a strong criticism of Sri Bhasme's submissions. 14. The court also had occasion to point out to the applicant the impropriety of addressing communications to Judges by postal letters in regard to the pending cases or on matters bearing on them. The re-action of the applicant which has been set out in strong assertions is, again, that she is entitled to address such communications and in para 7(b) of her written submissions relies on the position, inter alia, that letters to the Courts have been the basis of many public interest litigations; that applicant was not a private litigant and got no benefit from the letters she wrote, that Judges were themselves inviting the citizens to write to the Court etc. What this argument over-looks is that the initiation of a public interest litigation or proceedings for issue of a writ of Habeas Corpus on the basis of letters reflects and symbolizes the Court's anxiety to relax the rigour of formal pleadings. However, in proceedings which are already initiated and are pending it would be inappropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time. Frankly, we are unable to unravel the purpose of this predisposition to and determination on her part to misunderstand. We shall leave it at that. 15. Applicant has her own notions of the relationship between the Court and the parties. She asserts: ...While the litigants have entitlements the Court has decision making powers. However, the Court's special powers do not make it more equal, nor do they make the Court the fountain-head of justice. The citizen-petitioner coming to court on behalf of fellow citizens whose rights are violated by the State is certainly an equal participant and not a subsidiary of the institution. ...Institutions are made by the conduct and the quality of work and output of the persons who man it. My application No. 3128/88 records the conduct of persons who man it. This record is not a slur on the institution of the judiciary but a critique perhaps, of a dysfunctional institution. It is true that the parties who seek justice at the hands of the Court are neither its subordinates or subsidiaries. But the notion of an equal participation, in its practical applications, presents difficulties and cannot be stretched to the point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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