Rohit Kapoor
Critical of inefficiency and lack of will by the executive to act is when citizens knock on the door of Court in hope of justice by way of Public Interest Litigation. Those in administration and governance, who are duty-bound to act to correct wrongs and improve the state of affairs, must be made to act.
In the State of Jammu and Kashmir, media reports are correct on both the counts i.e. (i) that majority of the Government departments of Government of Jammu and Kashmir have not developed the habit of responding timely to the directives of the High Court in the Public Interest Litigations and (ii). In this way, they are creating impediments in achieving the intent of the litigations rather than facilitating the same.
They forget that they must remember, as one of the former Chief Justices of India has said, the judiciary was not “too ambitious” nor did it want to take over governance but it would be expected to act in public interest if “there is complete deficit in governance… when the darkness is all around”. And yes, many of the orders of the SC during the last decades saved the nation and the citizen from over enthusiastic vote bank parties/politicians and showed their place not the selfish gains but nation’s interests are paramount.
It has also generated awareness of the need of probity in public life and provided mode of enforcement of accountability in public life. Even though the matter was brought to the court (Vineet Narayan vs. U.O.I.) by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners’ counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. It was noticed by the Apex Court, merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. Concept of continuing mandamus came into existence. It does appear that it has helped in future decision making and functioning of the public authorities.
Two points should, however, have been noted (about Indian Supreme Court’s record on Public Interest Law). First, the Court has adapted its procedure to enable it to adjudicate polycentric issues more appropriately. Wide standing rules require the court to conduct some of its own fact-finding, sometimes through establishing its own commissions. It has also fashioned its own remedial orders to provide ongoing legal management. For example, in the “Right to Food” case, it has issued a continuing mandamus to require states to fully implement specific schemes including mid-day meals at school. Secondly, affirmation of wide duties is often used to counter maladministration rather than to initiate new projects.
Be that as it may, success is not final, failure is not fatal: it is the courage to continue that counts: Churchill Winston.
And let, therefore, those perusing the cause move with vigor un abated.
(The author is former Addl Advocate General (J&K State)
feedbackexcelsior@gmail.com
Follow our WhatsApp channel