Continuing Mandamus
Continuing Mandamus
Continuing Mandamus
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'CONTINUING MANDAMUS' - A
JUDICIAL INNOVATION TO BRIDGE THE
RIGHT-REMEDY GAP
Mihika Poddar& Bhavya Nahar*
The sanctity and credibility of the democratic legal system is intrinsically
linked to the enforceability of rights, a task typically adjudged to the judi-
ciary. However, the constitutional court's image as the defender of rights
has come into scrutiny due to its incapability of ensuring government
compliance, especially in cases requiring enforcement of positive state
duties. Socio-economic rights, for instance, propose a major challenge to
the judicial and legal system where coercing state action is at times an
insurmountable task. The Indian Supreme Court, tip-toeing around the
constitutionalseparationofpowers, has devised the novel writ remedy of
'continuing mandamus' to prevent the failure of constitutionalpromises.
Instead ofpassing a finaljudgment that would end the litigation, it keeps
the case pending, entering into a dialogue with the political and adminis-
trative wing, prodding to alter government action, or inaction. This paper
discusses the Supreme Court'sproceduralinnovation in the backdrop ofthe
enforcement conundrum. Locating the needfor the remedy in constitutional
and rights theory, the paper tracesjudicial trends, and extensively reviews
the use of the remedy by the Indian Supreme Court over the years. The
authors assess the effectiveness of how the remedy is being administered,
identifying reasonsfor the success of some interventions, vis-c-vis others,
trying to locate the shortcomings and roadblocks to the court's approach.
I. INTRODUCTION
The transformation of the Supreme Court of India into a Supreme
Court for Indians,' has been marked with remarkable strides towards bridg-
ing the right-remedy gap, a major cause of concern for constitutional schol-
ars. In the context of Social Action Litigation, Upendra Baxi remarked that the
'fundamental issue of how the Court should make the state and its agencies
fully liable for deprivations or denials of fundamental rights still remains to be
and 3rd year students at the WB National University of Juridical Sciences (NUJS), Kolkata.
4th
We would like to thank Aishwarya Gupta for her invaluable inputs. All errors, however, solely
remain ours.
See Upendra Baxi, Taking Suffering Seriously: SocialAction Litigation in the Supreme Court
ofIndia 107, 4 Third World Legal Studies (1985) (This refers to the people and right-centric
approach taken by the Supreme Court through its engagement in social action litigation).
556 NUJS LAW REVIEW 10 NUJS L. REV. 555 (2017)
The first part of this paper delves into the inevitable right-remedy
gap in constitutional law, contextualising the jurisprudential premise of the
writ remedy, whereby we make a case for constitutional change, and justify
expansion of the law of remedies. The second part traces the trajectory of ad-
judicatory trends that led to the innovation of 'continuing mandamus', from
prolonged determination with elaborate interim orders to mandatory orders
and directions, and then the reporting back of the status of implementation.
The third part assesses the nature of the remedy in the context of different
areas where it has been widely used, how it has succeeded or failed to fashion
change, especially in as much as it has been able to address administrative
2 Id., 42.
3 The court's intervention in social litigation has increased manifold after the Emergency, with
PILs gaining momentum, and the Supreme Court's decisions becoming bolder and seemingly
more obtrusive. See Upendra Baxi, Taking suffering seriously: Social action litigation in the
Supreme Court ofIndia, Third World Legal Studies 107 (1985).
4 S. Muralidhar, The Expectations and Challenges ofJudicialEnforcement of Social Rights
available at http://www.delhidistrictcourts.nic.in/ejournals/Social RightsJurisprudence.pdf
(Last visited on August 21, 2017).
Id.
6 A term coined by Upendra Baxi as he describes the "taking over the direction of administra-
tion in a particular arena from the executive." See 29 I.C.J. REV. 37 1982.
WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, Vol. 3, 21 (2nd ed., 1832).
Walter E. Dellinger, OfRights andRemedies: The Constitution as a Sword, 85 Harvard Law
Review 8 (1972); See Marbury v. Madison, 2 L Ed 60 : 5 US (1 Cr) 137, 163 (1803) (The gov-
ernment of the United States has been emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for
the violation of a vested legal right); Akhil R. Amar, OfSovereignty and Federalism, 96 Yale
L. J. 1425, 1427 (1987) (Governments acting unconstitutionally must in some way undo the
violation by ensuring that victims are made whole).
9 Id.
o See WOUTER VANDENHOLE, THE LIMITS OF HUMAN RIGHTS LAW IN HUMAN DEVELOPMENT IN FACING
THE LIMITS OF THE LAW 359 (2009).
See Clark D. Cunningham, PublicInterest Litigation in the Indian Supreme Court: A Study
in Light of the American Experience, 29 J. INDIAN L. INST. (1987), 505, available at http://
There are then multiple instances where the courts had declared
the rights but no remedy was given, constituting the second categorization
of 'rights without remedies'. The court here, despite recognising the rights,
refrained from further issuing directions, which could have had a substantial
1 Hussainara Khatoon (3) v. State of Bihar, (1980) 1 SCC 93 : AIR 1979 SC 1360; Hussainara
Khatoon (4) v. State of Bihar, (1980) 1 SCC 98 : AIR 1979 SC 1369; Hussainara Khatoon (5)
v. State of Bihar, (1980) 1 SCC 108 : AIR 1979 SC 1377; Hussainara Khatoon (6) v. State of
Bihar, (1980) 1 SCC 115 : AIR 1979 SC 1819; Hussainara Khatoon (7) v. State of Bihar, (1995)
5 SCC 326.
16 See Hussainara Khatoon (7) v. State of Bihar, (1995) 5 SCC 326.
1 Cunningham, supra note 11, 512.
* See e.g. P. Nalla Thampy Thera v. Union of India, (1983) 4 SCC 598 : AIR 1984 SC 74.
19 Id., at 24.
2 State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68, ¶¶33-37.
21 State of H.P. v. Parent of a Student of Medical College, (1985) 3 SCC 169.
22 Id., 5 (The reasoning centred on the recommendation in the report of the Anti-ragging com-
mittee that required the Government to initiate legislation against ragging. It could thus be
argued that the court was wary of interfering in legislation-making and not per-se inquiring as
to steps taken for implementation).
23 See SAMPAT JAIN, PUBLIC INTEREST LITIGATION 342 (2002).
24 S.K. AGARWALA, PUBLIC INTEREST LITIGATION IN INDIA: A CRITIQUE 36 (1985) (credibility of the
court "depends wholly on the conviction that the relief granted by the Court is enforceable"
and that if it issues directions which are not enforceable, it does not act "within its judicial
role).
2 See The International Covenant on Civil and Political Rights, 1966 ('ICCPR'), Art. 2(3);
See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 1984 ('CAT'), Art. 14; The Convention on the Elimination of All Forms of
Discrimination against Women, 1979 ('CEDAW'), Art. 2; The Convention on the Elimination
of All Forms of Racial Discrimination, 1965 ('CERD'), Art. 6; The European Convention on
Human Rights, 1950 (ECHR), Art. 13 ('everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy before a national authority not-
withstanding that the violation has been committed by persons acting in an official capacity');
The EU Charter of Fundamental Rights, 2000, Art. 47 (Everyone whose rights and freedoms
guaranteed by the law of the Union are violated has the right to an effective remedy before a
tribunal in compliance with the conditions laid down in this Article).
noticing that similar tools have been adopted by constitutional courts in both,
South Africa and Canada, in combating executive inaction, limitations of sepa-
ration of powers, and the insufficiency of existing remedies, to effectuate con-
stitutional justice.34
Nilabati Behera v. State of Orissa, (1993)2 SCC 746 :AIR 1993 SC 1960, at 19; Lavoie v.
Nova Scotia, (1988) 84 NSR (2d) 393 (NS SC) at 400, 403 (Pursuant to §24 of the Charter, the
court has a duty, where it is just under the circumstances, to grant a remedy if Charter rights
have been infringed or denied. The Charter of Rights to be meaningful must be capable of
enforcement).
34 The 'structural interdict' in SA and the Charter remedy in Canada, See Kent Roach & Geoff
Bundlender, Mandatory Relief and Supervisory Jurisdiction: When Is It Appropriate, Just
andEquitable, 122 S. AFRICAN L.J. 325 (2005), pp. 325-351.
3 S. Muralidhar, Implementation ofCourt Orders in the Area ofEconomic, Social and Cultural
Rights:An overview oftheExperienceofthe Indian Judiciary,2 INTERNATIONAL ENVIRONMENTAL
LAW RESEARCH CENTRE (2002), available at http://www.ielrc.org/content/w0202.pdf (Last vis-
ited on April 28, 2017).
36 Shivani Verma, The International Council on Human Rights Policy, Review Meeting Rights
and Responsibilities of Human Rights Organisations Geneva, 15 March 2005.
37 LAWRENCE BAXTER, ADMINISTRATIVE LAW 696-8 (1984).
For instance, Premier v. Assn. of State-Aided Schools, (1999) 2 SA 91 (CC) (mandatory or-
ders requiring a provincial government to resume payments of subsidies to certain schools);
August v. Electoral Commission, (1999) 3 SA 1 (CC) (directing the Electoral Commission
to make the necessary arrangements to enable prisoners to vote); and Dawood v. Minister
of Home Affairs (2000) 3 SA 936 (CC); Shalabi v. Minister of Home Affairs, 2000 ZACC 8;
with such orders that the dilemma of failure by successful litigants to benefit
from constitutional litigation emerged, portraying rights as hollow and illuso-
ry.39 This brought in the need for the 'structural interdict', which required "the
violator to rectify the breach of fundamental rights under court supervision", 40
enabling litigants to follow up on declaratory or mandatory orders.' It has been
segregated into five elements,42 starting with a declaration of infringement by
the government then mandating compliance with constitutional responsibilities
requiring the submission of a comprehensive report to the court, with the action
plan for remedying the violation.4 3 This is followed by judicial evaluation of the
report to ensure the effectiveness of the proposed remedial plan, which even-
tually culminates into a final order after integrating the government plan and
any court mandated amendments. 4 The failure of the government to adhere to
this plan would then amount to contempt of court. 5 Through such structured
exercise of supervisory jurisdiction, a dynamic dialogue between the court and
other branches of the government on the intricacies of implementation may be
initiated.4 6 This mechanism thus permits the courts to refrain from political
action, while at the same time, provides for ample administrative flexibility.
Thomas v. Minister of Home Affairs, (2000) 3 SA 936 (CC) (ordering immigration officials to
exercise their discretion in a manner that takes account of the constitutional rights involved).
39 DENNIS DAVIS, Soclo-EcoNoMIc RIGHTS IN SOUTH AFRICA: THE RECORD AFTER TEN YEARS, Vol. 2
(Issue 1, 2004).
40 lain Currie & Johan de Waal, Remedies in THE BILL OF RIGHTS HANDBOOK 217 (5th ed.,
2005); See also Richard Moultrie, A Structural Interdict as the AppropriateRemedy for the
ConstitutionalInfringement, 7-8 (December, 2006) (unpublished manuscript developed for
Legal Resources Centre's Constitutional Litigation Unit, on file with the New York University
Law Review) (describing basic characteristics of structural interdicts).
41 MitraEbadolahi, UsingStructurallnterdictsand The SouthAfrican Human Rights Commission
to Achieve JudicialEnforcement of Economic and SocialRights in South Africa, 83 NYU LAW
REVIEW 1565, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-83-5-
Ebadolahi.pdf (Last visited on April 28, 2017).
42 Currie & de Waal, supra note 40, at 217-18.
43 Id.
44 Id.
45 Id., 218.
46 Marius Pieterse, Coming to Terms with JudicialEnforcement of Socio-economic Rights, 20
SAJHR 383, 414 (2004) (Often, even interested third parties may submit comments on the
proposed plan, requiring the government to reply to those comments); Moultrie, supra note
40, 8.
4 Minister of Health v. Treatment Action Campaign (No. 2), (2002) 5 SA 721 (CC) at 757; See
also City Council ofPretoria v. Walker, (1998) 2 SA 363 (CC) at 401.
48 Ebadolahi, supra note 41 (High Courts have used structural interdicts in cases involving both
socio-economic rights and even other cases involving 'public interest' in a broader sense. For
the kinds of cases that have involved such supervision).
Court.4 ' The courts' reluctance to award structural interdicts has been severely
criticised 5 showing popular support for such remedy.
4 August v. Electoral Commission, (1999) 3 SA 1 (CC) (the Court found the Electoral
Commission had violated South African prisoners' right to vote. Conceding the Court lacked
the institutional competence to rectify the constitutional wrong, Judge Sachs directed the
Electoral Commission to do so itself, requiring the Commission "to furnish an affidavit set-
ting out the manner in which the order will be complied with" within two weeks).
Sibiya v. Director of Public Prosecutions (Sibiya 1), (2005) 5 SA 315 (CC) at 337-38; S v.
Makwanyane, (1995) 3 SA 391 (CC)) (The Constitutional Court had declared the deathpenalty
inconsistent with the interim Constitution and ordered the substitution of lawful punishments
for prisoners on death row. A decade later, finding that "the process of the substitution of sen-
tences has taken far too long," the Court issued a structural interdict to exercise supervisory
jurisdiction over the sentence-conversion process).
5o Dennis Davis, Adjudicating the Socio-economic Rights in the South African Constitution:
Towards 'Deference Lite'?, 22 SAJHR 301, 304-05 (2006) (By failing to issue structural in-
terdicts, "the Court has, in effect, surrendered its power of sanction of government inertia and,
as a direct result, litigants have not obtained the shelter or drugs that even a cursory reading
of the Constitutional Court decisions in Grootboom and TAC (No. 2)] promised in so clear a
fashion).
See Proceedings Against the Crown Act, RSO, 1990, Chapter P.27, §14.
52 VanMulliganv. Saskatchewan Housing Corpn., (1982) 23 SaskR 66 (QB); Levesquev. Canada
(Attorney General), (1985) 25 DLR (4th) 184 (FCTD); See also PETER HOGG, CONSTITUTIONAL
LAW OF CANADA 37.269, (3rd ed., 1992); PETER HOGG & PATRICK MONAHAN, LIABILITY OF THE
CROWN 36, (3rd ed., 2001); R.J. SHARPE, INJUNCTIONS AND SPECIFIC PERFORMANCE, (3rd ed., 2000),
at 3.1030; KENT ROACH, CONSTITUTIONAL REMEDIES IN CANADA (1994), at 13.90.
5 Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 : (2003) 3 SCR 3; See
also Marchand v. Simcoe Country Board of Education, (1986) 29 DLR (4th) 596 (Ont HC and
Marchand v. Simcoe County Board of Education (No. 2), (1987) 44 DLR (4th) 171 (Ont HC)
(Injunctive relief granted against local school board demonstrates willingness to use manda-
tory relief against local authorities).
See Mahe v. Alberta, (1990) 68 DLR (4th) 69 (SCC), at 106; Eldridge v. British Columbia,
(1997) 151 DLR (4th) 577 (SCC), ¶96; K. Roach, Remedial Consensus and Dialogue under
the Charter: General Declarations and Delayed Declarations of Invalidity 211, 269, 39
UNIVERSITY OF BRITISH COLUMBIA LAW REVIEW (2002).
" Justice lacobucci's Dissent in Little Sisters v. Canada, (2000) 2 SCR 1120.
56 See Schachter v. Canada, (1992) 2 SCR 679.
'
As with declaratory orders, even mandatory orders were not
wholly successful in combating the reluctance to enforce socio-economic
rights. Despite the hue and cry created over the 'path breaking' Olga Tellis
judgment, the resettlement never took place, and the government has repeat-
edly flouted the court's dictum, carrying out evictions without resettlement.72
A detailed analysis of mandatory orders and their failure in terms of effective
compliance and enforcement in social litigation, however, is beyond the scope
of this paper, and thus we proceed on the informed premise that enforcement of
socio-economic rights, despite there being court directives, remains an issue in
the Indian administrative set-up.
67 See also Assam Rifles Multi-Purpose Coop. Society Ltd. v. Union of India, (1987) 2 SCC
638 (SC refused to adjudicate on sensitive issues dominated by political concerns); Vincent
Panikurlangara v. Union of India, (1987) 2 SCC 165 (SC recognised that matters may arise
which involve a multiplicity of complex interests which cannotbe appropriately disposed of in
court proceedings).
68 Alva, supra note 63.
69 Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.
1 Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42.
71 Id., 31.
71 See Olga Tellis, Thirty Years after a landmarkSupreme Court verdict, slum dwellers rights'
are still ignored, THE SCROLL, December 21, 2015, available at https://scroll.in/authors/3404
(Last visited on April 28, 2017); Markandey Katju, The PeremptoryDemolition of Slums is
a Violation of the Law, THE WIRE (Mumbai) December 14, 2015, available at https://thewire.
in/17279/the-peremptory-demolition-of-slums-is-a-violation-of-the-law/ (Last visited on
April 30, 2017).
73 Alva, supra note 63, 211.
What followed was expansive use of the remedy not limited only
to supervision of investigative agencies, being used mainly for supervision of
implementation of socio-economic rights in the fields of environmental protec-
tion, rights read into Article 21, rehabilitation, labour exploitation, etc. We see a
trajectory of cases where courts issued directions, supervising enforcement and
even requiring periodic progress reports.8 2 It has now culminated into a full-
blown writ remedy that courts have adopted without reservations in cases that
involve systematic impairment of collective rights. What is notable that unlike
other writ remedies, a continuing mandamus is a procedural innovation, not a
substantive one, i.e., it only allows the court an affective basis to ensure that
See generally N.K. SINGH, THE POLITICS OF CRIME AND CORRUPTION: A FORMER CBI OFFICER
SPEAKS 105 (1999).
86 Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 : AIR 2003 SC 2612 (Allegation of
bribery in the contract entered into between the Government of India and M/s AB Bofors for
supply guns, ammunitions, vehicles, etc. The SC overruled the Delhi High Court judgment
(Prakash P. Hinduja v. Union of India, 2002 SCC OnLine Del 679 : (2002) 64 DRJ 34) which
quashed the FIR filed and asked the CBI to advance with investigations).
SantoshKumar Singhv. State, (2010) 9 SCC 747 (SantoshKumar Singh, the alleged murderer
of a 25-year-old law student, was acquitted for what the judge called "deliberate inaction" by
the investigating team. The accused was the son of a high-ranking officer in the Indian Police
Service, the reason for the CBI's involvement. The 1999 judgment noted that "the influence of
the father of the accused has been there").
88 Singh, supra note 85.
89 See Vineet Narainv. Unionof India, (1998) 1 SCC 226: AIR 1998 SC 889, ¶19 (Decision mak-
ing level officer includes- "Joint Secretary or equivalent of above in the Central government
or such officers as are or have been on deputation to a Public Sector Undertaking; officers of
the Reserve Bank of India of the level equivalent to Joint Secretary of above in the Central
Government, Executive Directors and above of the SEBI and Chairman & Managing Director
and Executive Directors and such of the Bank officers who are one level below the Board of
Nationalised Banks").
90 VineetNarainv. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889.
91 In the Beijing Statement, the Objectives of the Judicial Organ have been laid down: (a) to
ensure that all persons are able to live securely under the Rule of Law, (b) to promote,
within the proper limits of the judicial function, the observance and the attainment of hu-
man rights; and (c) to administer the law impartially among persons and between persons and
the State."; See Vishakav. State ofRajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011, ¶11.
92 Subramanian Swamy v. CBI, (2014) 8 SCC 682.
93 Anukul Chandra Pradhanv. Union of India, (1996) 6 SCC 354.
94 Vineet Narainv. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889, ¶12.
The Jain Hawala case was, in ways more than one, a path-break-
ing decision. The Division Bench extrapolated the ambit of the writ of man-
damus by judicial application, and kept the matter sub judice to monitor the
CBI's investigation. 5 This was consequent of the CBI's failure to conduct in-
vestigations against influential government bureaucrats, who were alleged to
be involved in financially supporting terrorist activities, using funds acquired
through 'hawala'9 6 transactions. Perceiving the normative passivity of the CBI,
especially when the alleged offender was a powerful person, the court noted
the necessity "to take measures to ensure permanency in the remedial effect
to prevent reversion to inertia of the agencies in such matters." 7 In accordance
with this, the Court not only directed the appointment of a Central Vigilance
Commissioner" and gave the Central Vigilance Commission statutory status
to supervise the CBI, 9 but also inter alia, issued directions on strengthening
the investigation procedure and most importantly, monitored them.' It had
also over a period of time, supervised the case and passed numerous orders to
ensure effective investigation. 0 ' For instance, the Court asked the authorities
to submit a report with reasons if they close a case against anyone, and also not
make any kind of settlement without the leave of this Court.0 2 This procedure
of keeping the case pending and regularly monitoring it was, for the first time,
termed as 'continuing mandamus.' This, as we will see, saw the birth of the
now often demanded remedy of court monitored investigations, giving end vic-
tims of otherwise incomplete investigations at least a legal entitlement to seek
remedial judicial intervention.
116 Central Bureau of Investigation, Crime Manual (July 5, 2013), available at http://cbi.nic.in/
aboutus/manuals/crimemanual.php (Last visited on April 24, 2017).
1 See VineetNarainv. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889.
11 NarmadaBaiv. State of Gujarat, (2011) 5 SCC 79, State of Karnatakav. ArunKumar Agarwal,
(2000) 1 SCC 210.
119 Sushila Devi v. State of Rajasthan, (2014) 1 SCC 269; O.M. Debarav. Govt. of A.P., 2014 SCC
OnLine AP 163.
12 State of Karnatakav. ArunKumar Agarwal, (2000) 1 SCC 210.
Arun Kumar Agarwal v. State of Karnataka, 1998 SCC OnLine Kar 124: (1999) 1 Kar LJ 603.
12 Compare VineetNarainv. Unionof India, (1998) 1 SCC 226: AIR 1998 SC 889 (evidence was
collected by the CBI on a probe started long back) with State of Karnataka v. Arun Kumar
Agarwal, (2000) 1 SCC 210 (Here, the crime was neither reported nor was there reasonable
suspicion and thus the SC struck down the decision of the HC).
123 See, e.g.,Vineet Narainv. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889.
124 Ashish Khetan, There is strangecohabitationbetween different politicalforcesand CBI cases
are usedfor various collateralpurposes, TEHELKA, January 14, 2012, available at http://www.
tehelka.com/2012/01/there-is-strange-cohabitation-between-different-political-forces-and-
cbi-cases-are-used-for-various-collateral-purposes/2/ (Last visited on December 16, 2016).
125 Aloke Tikku, Given CBI past record, SC monitoring not enough, HINDUSTAN TIMs (Delhi)
December 27, 2010, available at http://www.hindustantimes.com/delhi/given-cbi-past-record-
sc-monitoring-not-enough/story-uQWMo0w2klRR922UPBeOkN.html (Last visited on
December 16, 2016).
126 Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532.
127 Id., ¶43.
121 Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889, ¶8; Narmada Bai v.
State of Gujarat, (2011) 5 SCC 79, ¶38.
129 Arun Jaitley, Minister of Finance, Corporate Affairs and Information & Broadcasting, 28th
I.B. Endowment Lecture (23 December, 2015), available at: http://pibphoto.nic.in/documents/
rlink/2015/dec/p2015122301.pdf (Last visited on December 16, 2016).
130 See supra note 118.
kind of view on the merits of the case considering facilitating fair investigation
as its ultimate goal.'3
'
Furthermore, the Court has always adverted to how it was being
cautious, and made sure that it did not overstep its powers so as not to set up a
precedent which could be misused, keeping in light the principle of 'presump-
tion of the accused's innocence.' 3 2 The purpose is to avert the lower courts
from considering such observations in trial, to avoid any impression of arbi-
trariness, bias and subjectivity against the accused.
131 See JakiaNasim Ahesanv. State of Gujarat, (2011) 12 SCC 302 (The appellant filed a petition
asking the Court to direct investigation by an independent agency for her husband's death.
She alleged the death to be caused by an influential person in the Government, thereby tying
the hands of the CBI to investigate. However, the Court rejected the plea after scrutinizing
this Court's holdings in Vineet Narain, M.C. Mehta and the Narmada Bai case. It was held
that once a charge sheet is filed by the investigating agency, the Court has no further power to
monitor.)
132 Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661, ¶1.
133 Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, ¶38.
134 Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532, ¶29.
135 See Nirmal Singh Kahlonv. State ofPunjab, (2009) 1 SCC 441: AIR 2009 SC 984 (the offence
of fraud was committed in a organized manner in the selection process of the Panchayat
Secretaries, the Supreme Court upheld the direction given by the High Court to the CBI even
after the charge sheet was filed).
136 Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889 (The then Solicitor
General requested 'in-camera' proceedings to state certain material facts. The Court allowed
the same to the extent necessary while noting the importance of its secrecy, in the interest of
justice. Therefore, the Court to be satisfied with the content of the charge sheet may monitor
to the requisite scale.).
considering quod est necessarium est licitum. The Code of Criminal Procedure,
1973, defines investigation 37 including the procedure requisite for collection
of evidence. Thus, while monitoring the investigation, it becomes the duty of
the Court to see to it that influential persons do not botch up the investigation
in any manner. The writ court should thus, exercising its powers, extend its
jurisdiction to look into cases even post filing of charge sheet where neces-
sary, to give effect to the ultimate objective of ensuring unbiased, meaningful
investigations, combating political corruption. Needless to mention, any such
intervention should be cautiously done, without prejudice to the presumption
of innocence.
While the writ may have been effectual at some instances, there
is no guarantee of the CBI being insulated from political interference. For
instance, the orders and directions passed by the SC in the Jain Hawala case
and in PrakashSingh v. Union ofIndial38 remain unimplemented till date. The
Vineet Narain of the Hawala case, who is an anti-corruption activist grieves,
"Despite SC monitoring, the case was never properly probed. I saw how CBI
and government's top law officers played a dubious role to ensure the probe
was botched up." 39 There were no convictions because of lack of conclusive
evidence in the charge sheets. As for the Prakash Singh case,'40 a decade has
passed since the judgment but still the police reforms remain unexecuted in
most states.'4 ' The Court in this case had passed seven binding directions for
all the states to follow and monitored the same till 2008 after which it set up
a monitoring committee.14 2 A decade has passed and still nearly 16 states are
to fully implement the directives.14 3 The judge in the Bofors case called such
trials a 'waste of public money' because of the controversial role of the CBI.'44
Even in the M. C. Mehta case,'1 5 the Supreme Court had, after continuous mon-
itoring, ordered to replace heritage corridor project with forested greenbelt.
However, it only took place after nearly 8 years and that too when the same was
directed by the Minister of Culture.14 6 That it was nonetheless done, despite the
delay is also a huge feat.
The fact that the Court consciously retains jurisdiction of the case
and monitors the investigation agency neither safeguards the agencies from be-
ing affected by high level government servants and politicians, nor ensures an
honest investigation. The CBI generally circumvents a fair investigation, such
as when it dropped charges against Satish Sharma,15 or when the Samajwadi
Party supported the ruling party thereby getting the CBI to submit its report
against Mulayam Singh to the government instead of the court.' 5 Hence, it is
144 G.P. Joshi, The Central Vigilance Commission and the Central Bureau of Investigation: A
brief history of some developments, COMMONWEALTH HUMAN RIGHTS INITIATIvE, September
17, 2010, available at http://humanrightsinitiative.org/old/publications/police/cvc_cbisome_
developments a brief history.pdf (Last visited December 18, 2016); See Union of India v.
Prakash P. Hinduja, 2002 SCC OnLine Del 679 : (2002) 64 DRJ 34.
145 M.C. Mehta v. Union of India, (2001) 3 SCC 763.
146 Aditya Dev, Forest department hurdle in Ta] Heritage Corridor, THE TIMES OF INDIA (Agra)
July 11, 2016, available at http://timesofindia.indiatimes.com/city/agra/Forest-department-
hurdle-in-Taj-Heritage-Corridor/articleshow/53159073.cms (Last visited on December 11,
2016).
147 Centre for Public interest Litigationv. Union of India, (2011) 1 SCC 560.
148 Sankar Sen, CBIs Credibility Crisis, THE TRIBUNE, July 21, 2016, available at http://www.trib-
uneindia.com/news/comment/cbi-s-credibility-crisis/268703.html (Last visited on December
20, 2016).
149 Press Trust of India, 2G spectrum scam: Formertelecom ministerA. Raja arrested, THE TIMES
OF INDIA, February 2, 2011, available at http://timesofindia.indiatimes.com/india/2G-spec-
trum-scam-Former-telecom-minister-A-Raja-arrested/articleshow/7411212.cms (Last visited
on August 6, 2017).
15o Captain Satish Sharma is a senior Congress leader against whom CBI had instituted cases
pertaining to alleged irregularities in allotment of petrol pumps and gas agencies during his
tenure as Petroleum Minister between 1993 and 1996. The cases were later closed.
151 The Supreme Court had directed the CBI in March 2007 to probe his assets. When Mulayam
Singh's party was not part of the ruling coalition at the Centre, the CBI wanted to submit its
report to the Court and requested the Supreme Court in October 2007 to modify the earlier
order of producing it to the central government. But in a complete turnaround from its earlier
stance, it later sought the Supreme Court's approval to submit the findings of its inquiry to the
government and not to the Court. This happened after the Samajwadi Party lent support to the
government during the Confidence Motion in the Lok Sabha on 22 July, 2008.
clear from the above examples that the CBI, just like the police forces in our
country, is open to be influenced by high level politicians and government serv-
ants, and there is hardly anything that the Court can do in this matter simply by
'monitoring' the case. Moreover, political parties at the Centre are always re-
luctant to strengthen the functioning of the CBI. Even recently, the Prevention
of Corruption ('PC') Bill, 2013, has been proposed by the Modi government
requiring the CBI to take sanction of the government before investigating as
under the DSPE.1 5 2
152 Bosco Dominique, Don't amend Prevention of CorruptionAct: India against Corruption to
Centre, THE TIMs OF INDIA (Puducherry) November 22, 2016, available at http://timesofindia.
indiatimes.com/city/puducherry/Dont-amend-prevention-of-corruption-Act-India-Against-
Corruption-to-Centre/articleshow/55559489.cms (Last Visited on December 11, 2016).
153 See generally Kaushal Shroff, The Curious Case ofCBI, BUSINESS STANDARD (Delhi) October
31, 2015, available at http://www.business-standard.com/article/current-affairs/the-curious-
case-of-cbi-115103001651_i.html (Last visited on April 25, 2017) (Justice T.S. Thakur and
Justice C. Nagappan suggested "CBI probe against CBJ" for not filling up vacancies in the
agency).
154 See Nirmal SinghKahlonv. State ofPunjab, (2009) 1 SCC 441: AIR 2009 SC 984.
1 S.S. Prakash and P.V.N. Sarma, Environment Protection vis-a-vis Judicial Activism 56, 2
SUPREME COURT JOURNAL (1998).
156 Shyami Fernando Puvimanasinghe, An Analysis of the Environmental Dimension of Public
Nuisance, with particularreference to role in India and Sri Lanka, 9 SRI LANKA JOURNAL
OF INTERNATIONAL LAW 143-171(1997); Ayesha Dias, JudicialActivism in Development and
Enforcement of environmentalLaw: Some ComparativeInsightsfrom The Indian Experience,
6 J. ENVIRONMENTAL LAW (1994); See G.L. Perris, Public Interest Litigation in the Indian
Subcontinent: CurrentDimensions, 40 (1) INTERNATIONAL AND COMPARATIVE LAW QUARTERLY
66 (1991); See also MR. Anderson, Individual Rights to EnvironmentalProtection in India,
HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION 1 (1998).
117 Subhash Kumar v. State of Bihar, (1991) 1 SCC 598; Shantistar Builders v. Narayan Khimalal
Totame, (1990) 1 SCC 520 : AIR 1990 SC 630; Organization for Economic Co-operation
and Development [OECD], Environmental Compliance and Enforcement in India: Rapid
Assessment (December 5, 2006), available at https://www.oecd.org/env/outreach/37838061.
pdf (Last visited on April 25, 2017).
1 See Geetanjoy Sahu, Implication of Indian Supreme Courts Innovationfor Environmental
Jurisprudence,4/1 LAW, ENVIRONMENTAL AND DEVELOPMENT JOURNAL (2008), available at http://
www.lead-journal.org/content/08001.pdf (Last visited on April 25, 2017).
159 Id.
160 Id.; Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public
InterestLitigation, ENV L REV 14 (2012) 200-218.
161 See Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431 : AIR 1985 SC
652; M.C. Mehtav. Union of India, (1986) 2 SCC 176: AIR 1987 SC 965.
162 Rajesh Rangarajan, A Review of Implementation Gaps in the Enforcement of Environmental
Regulation in India, Institute forFinancial Management and Research, Centre for Development
Finance, Environmental Policy: Citizens, Institutions & Implementation, Working Paper
There have been several instances where the Supreme Court has
sought to initiate court monitored proceedings to ensure compliance in environ-
mental cases. In Vellore Citizens' Welfare Forum v. Union of India,'64 dealing
with a writ petition against tanneries in the Tamil Nadu polluting ground water
with untreated effluents, the Supreme Court directed the Central Government
to create an authority to deal with the above matter and directed the Madras
High Court to set up a Green Bench to deal with the case, and to monitor the
functioning of the committee and the tanneries in Tamil Nadu. Thus, the con-
tinuous monitoring was an acceptable practice in environmental cases, even
before it was called 'continuing mandamus'.
A popular use of the writ was in Indian Council for Enviro -Legal
Action v. Union of India, 6 5 or the Bichhri case, concerning an action to prohibit
pollution caused by several chemical industrial plants operated by respondents
in Bichhri village, Rajasthan, without permits. The court, after almost 6 years
of litigation and lack of compliance of its directions, through its order in 1996,
conclusively laid down the respondents' liability for causing pollution, with
directions for remediation, instructing agencies to enforce the law and report-
ing to the court for further clarifications.1 66 It had ordered the constitution of a
'
on one ground or the other. Both review and curative petitions were filed and
dismissed. Stressing on the need for finality of judgment and to discourage
constant filing of applications to avoid compliance, the court even imposed a
fine on the respondent industries vide its 2011 order.1 72 Compensation was ag-
gressively pursued with attachment of property and even interest payments for
delay.1 73 While ultimately termed successful, the delay in implementation and
the economic strength of corporations who are able to hold-out for longer has
been criticized. 7 4
167 Indian Council for Enviro-Legal Action v. Union of India, (2000) 2 SCC 293.
168 (1996) 3 SCC 212; Indian Council for Enviro-Legal Action v. Union of India, AIR 1999 SC
1502.
169 This involved regular follow-up and consulting the status of applications in the HC's during
dismissal of many interlocutory applications. See e.g. Indian Council for Enviro-Legal Action
v. Union of India, (2007) 15 SCC 633.
170 Indian Council for Enviro-Legal Actionv. Union of India, (2011) 12 SCC 739; Indian Council
for Enviro-Legal Actionv. Union of India, (2011) 12 SCC 764.
171 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
172 Indian Council for Enviro-Legal Actionv. Union of India, (2011) 12 SCC 764, ¶133.
173 See (1996) 3 SCC 212; Indian Council for Enviro-Legal Action v. Union of India, (2011) 12
SCC 768; Indian Council for Enviro-Legal Actionv. Union of India, (2011) 12 SCC 752; Indian
Council for Enviro-Legal Action v. Union of India, (2011) 12 SCC 764; Indian Council for
Enviro-Legal Actionv. Union of India, (2011) 12 SCC 766.
174 See GITANJALI NAIN GILL, ENVIRONMENTAL JUSTICE IN INDIA: THE NATIONAL GREEN TRIBUNAL 213-
216 (2012).
175 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2012) 7 SCC 764.
176 Id.
m Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(1999) 1 SCC 224.
1 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2005) 10 SCC 510, ¶53.
179 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2000) 9 SCC 41, ¶42.
1 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2005) 13 SCC 658.
1 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2005) 10 SCC 510.
1 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2005) 13 SCC 671; Research Foundation for Science, Technology and Natural Resource
Policy v. Union of India, (2005) 13 SCC 186.
183 Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2012)7 SCC 769 ¶45.
184 Almitra H. Patel v. Union of India, (2000) 2 SCC 166.
188 Id.
189 Almitra H. Patel v. Union of India, (2000) 8 SCC 19, ¶5.
In the Delhi Vehicular Pollution Case, 200 M.C. Mehta's public in-
terest litigation filed in 1985 concerning air pollution in Delhi and the surround-
ing region saw no action being taken till 1990, until a series of directions were
passed as continuing mandamus.20 ' The court justified monitoring of the case to
ensure compliance with Article 21, making authorities realise their obligations
under statutory provisions and to prevent frustration of legislative intent. 202
It has ordered periodic vehicle emission checks, with the power of cancella-
tion of registration certificates of faulty vehicles. 203 It directed the Ministry of
Environment to establish an expert Committee to review technological, legal
and administrative solutions to curb pollution, to which around 30 reports were
submitted between 1991 and 1997.204 There were detailed directions on the use
of unleaded fuel in phases, to start in Delhi and encompassing the whole na-
tion by 2001,205 mandating conversion into compressed natural gas of all gov-
ernment vehicles, 206 and even directing establishment of a body to oversee
implementation of the court's orders, 207 among many others. One of the most
significant orders was passed in July 1998, with details of systematic phasing
out of old vehicles, ban on certain types of fuel and replacement with greener
alternatives, 208 all to be carried out within strict deadlines by authorities, who
were also required to bring to public notice the directions issued by the court
from time-to-time. Repeated reports and information had to be submitted be-
fore the court, 2 0 9 and emission norms were laid down with strict standards. 2 1 0
201 Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public
Interest Litigation , Environmental Law Review 14.3 (2012): 200-218, 211, available at http://
journals.sagepub.com/doi/pdf/10.1350/enlr.2012.14.3.158 (Last visited on August 8, 2017).
202 Order dated 23 March 2001, unreported, see http://journals.sagepub.com/doi/pdf/10.1350/
enlr.2012.14.3.158.
203 M.C. Mehtav. Union of India, (1991) 2 SCC 137.
204 Id.
205 Orders dated 12 August 1994, 21 October 1994 and 14 February 1996 [M.C. Mehta v. Union
of India, (1998) 8 SCC 648].
206 Order dated 28 March 1995.
207 Order dated 27 April 1997.
201 It included the phasing out of all commercial vehicles and taxis which were more than 15 years
old as of October 1998; a ban on the supply of 2T oils at petrol stations by December 1998;
the increase of public transport to 10,000 buses by April 2001, the stoppage of leaded petrol
within NCT Delhi by September 1998; replacement of all pre-1990 auto rickshaws and taxis to
new vehicles on clean fuel by 31 March 2000; no eight-year-old buses to ply except on CNG or
other clean fuel by 1 April 2000; entire city bus fleet (DTC and private) be steadily converted
to single fuel mode on CNG by 31 March 2001.
209 For instance, the Court asked for the information about the number of diesel and petrol driven
vehicles registered in NCR Delhi in three years: 1997, 1998 and 1999. The matter was ad-
journed to 29 April 1999.
210 On 29 April 1999, the Supreme Court imposed emission norms for vehicles registered inNCR
Delhi. All private vehicles registered after 1 June 1999 were to conform to Bharat I norms and
those registered after 1 April 2000 to conform to Bharat II norms. Restrictions were imposed
on the monthly registration of diesel driven vehicles. Also, diesel taxis were prohibited in
NCR Delhi unless they conformed to Euro II norms with immediate effect.
21 Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public
InterestLitigation, Environmental Law Review 14.3 (2012): 200-218, 211.
212 Id., 212.
213 Id., 212; A. Agarwal et al., The State ofIndia's Environment: Part1- The Citizen Fifth Report
(1999) Centre for Science and Environment, 192.
214 Special Correspondent, Euro-III emission norms recommended by 2005, THE HINDU
(September 26, 2002) http://hindu.com/2002/09/26/stories/2002092604460900.htm.
211 Centre for Environmental Law (1999) 'WWF - India, Strengthening Environmental
Legislation in India', 216.
216 Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public
Interest Litigation, Environmental Law Review 14.3 (2012): 200-218, 214, available at.http://
journals.sagepub.com/doi/pdf/10.1350/enlr.2012.14.3.158 (Last visited on August 8, 2017).
217 ENERGY AND RESOURCES INSTITUTE REPORT, Looking Back to Change Track: Strengthening
TransitionEconomies 19 (2006).
211 WORLD BANK, For a Breath ofFresh Air - Ten Years ofProgressand Challengesin Urban Air
Quality Management in India, June, 2005, available at http://documents.worldbank.org/cu-
rated/en/951561468051260427/pdf/350470PAPEROINOBreathOof0fresh0air.pdf (Last visited
on August 30, 2017).
219 RITWICK DUTTA & BHUPENDER YADAV, SUPREME COURT ON FOREST CONSERVATION Xi (2005).
221 Writ Petition No. 202 of 1995, T.N. Godavarman Thirumulpad v. Union of India, Supreme
Court of India; Down to Earth, Interview Between T.N. Godavarman Thirumulpad and
decades, the Supreme Court passed numerous orders, taking over supervision
and control of the day-to-day governance of Indian forests.22 ' It has covered
issues ranging from logging,222 deforestation and mining,223 impacts of clear-
ing forest224 to even endangered species. 22 5 The constitutional permissibility of
such vast assumption of powers has been seen with suspicion,226 with the court
going beyond mere interpretation of the law, becoming a policy-maker and an
administrator.227 Executive inaction, the deteriorating state of India's forest
cover and the blatant flouting of legislations seemed to prompt the court to em-
bark on what was to become a massive undertaking, with the Supreme Court
becoming the court of first instance for forest matters for decades to come. All
matters relating to the Act and Indian forests were heard by the court as inter-
locutory applications in the case, and we attempt to give an overview of some
of the significant orders to illustrate their extent and nature. Reference can be
made to authors who have analysed the orders of the court it in some detail. 228
In its first order in 1996, the court defined the previously ambigu-
ous scope of the Forest Conservation Act, 1980 and the meaning of 'forest' by
its dictionary meaning, broader than the restrictive interpretation given by mul-
tiple states. 229 The 1996 order also imposed a nation-wide ban on tree felling,
non-forest activities such as mining and saw mills, except with the approval
of the Central Government. 23 0 States were instructed to put in place multiple
expert committees, submit reports within prescribed deadlines, with differ-
ing guidelines for States of Jammu & Kashmir, Himachal Pradesh and Hilly
Areas of Uttar Pradesh & West Bengal, Tamil Nadu and the North-Eastern
231 T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267; See Astha Pandey,
TN. Godavarman Thirumulpadv. Union of India & Others: A Case Study, Global Journal
of Human-Social Science: B Geography, Geo-Sciences, Environmental Science & Disaster
Management Vol.15 (4) (2015).
232 Operating for more than a decade, since it constitutionby a SC order on 9 May 2002, followed
by notification under the Environment (Protection) Act, 1986; it has gained near-institutional
status, having operated for more than a decade. After expiry of its statutory term of 5 years,
the court through its orders in Samaj Parivartana Samudaya v. State of Karnataka, (2013)
8 SCC 154, continued the CEC. See Shyam Divan, Public Interest Litigation, THE OXFORD
HANDBOOK OF THE INDIAN CONSTITUTION 647 (Sujit Choudhry, Madhav Khosla & Pratap Bhanu
Mehta eds.).
233 Shyam Divan, PublicInterest Litigation, THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION
647 (Sujit Choudhry, Madhav Khosla & Pratap Bhanu Mehta eds.).
234 T.N. Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1: AIR 2005 SC 4256.
235 Id.
236 T.N. Godavarman Thirumulpad v. Union of India (2014) 6 SCC 150, ¶24.
237 T.N. Godavarman Thirumulpad v. Union of India, (2014) 6 SCC 150.
238 T.N. Godavarman Thirumulpad v. Union of India, (2014) 4 SCC 61, ¶5.
239 Id., ¶8.
240 Id., ¶7; See also M. Sakthivel, Case Comment: TN. Godavarman Thirumulpadv. Union of
India, MANU/SC/0028/2014.
241 Silver Cloud Estates v. Conservator of Forests, 1999 SCC OnLine Mad 151; Gram Panchayat,
Navlakh Umbre v. Union of India, 2012 SCC OnLine Bom 851.
The writ petition has not been dismissed. Even though establish-
ment of the National Green Tribunal in 2010 has seen some success contrary
to what was envisaged, 24 2 the continuing mandamus in forests still continues.
However, even though the case is open, it is not under active hearing. 243
The court's orders have been under a lot of attack - the lack of
judicial foresight having wrecked the timber industry; the failure of its work-
ing plans and illegal felling of timber coupled with the proliferation of a black
market; constant interference with the functioning of the MoEF, entrusted with
the responsibility for managing forests and wildlife; constitution of new entities
leading to a confusion in co-ordination and the micro-management leading to
legislative and executive contentment in deferring to the SC's forest manage-
ment rather than building their own capacity as well as leading to disruption
of livelihoods of forest dwellers and dependants. 244 However, at the same time,
critics note the lack of alternatives, given the apathy of the government and the
inaction of the executive despite there being legislation, NGOs and activists
often prefer judicial direction of forest policy management over corrupt and
inefficient bureaucrats. 2 45
242 RITWICK DUTTA, SUPREME COURT ON FOREST CONSERVATION Xiii (3rd ed. 2011).
243 P.K. Manohar & Praveen Bhargav, The architect of an omnibus forest-protection case, THE
also be one of the reasons for the change and the inactivity in the continuing
mandamus.
-
Effective Remedy, Defective Implementation
247 Shubhankar Dam & Vivek Tewary, Polluting Environment, Polluting Constitution: Is a
'Polluted'Constitution Worse than a Polluted Environment?, 17 J. ENVTL. L. 383, 389 (2005).
248 ERIN DALY & JAMES MAY, CONSTITUTIONAL ENVIRONMENTAL RIGHTS AND LIABILITIES 84 (2012).
249 See Urvashi Narain & Ruth Greenspan Bell, Who Changed Delhi's Air? - The Roles of the
Court and the Executive in EnvironmentalPolicymaking, RFF DP 05-48 (December 2005),
available at http://ageconsearch.umn.edu/bitstream/10466/1/dp050048.pdf (Last visited on
August 30, 2017).
250 M.C. Mehta v. Union of India, (2002) 4 SCC 356: AIR 2002 SC 1696.
25 Mohiuddin Farooque v. Govt. of Bangladesh, 2001 SCC OnLine Bang SC (HC) 59.
252 Id., 27.
reports.2 53 Even in Philippines, the globally famous judgment in the Manila bay
case,2 54 borrowing from the Indian Supreme Court's jurisprudence, kept the
case open to ensure compliance with its orders,2 5 5 supervising the restoration
plan, issuing additional orders and requiring government agencies to complete
specific tasks within prescribed deadlines.2 56
253 Id. (Among others, the Director General, Directorate of Environment, was directed to ensure
that the polluting industrial units and factories had to adopt adequate and sufficient measures
to control pollution within one year from the date of receipt of the judgment and report com-
pliance to this court within six weeks thereafter. The secretary, Minister of industries, was
directed to ensure that no new industrial units and factories were set up in Bangladesh without
first arranging adequate and sufficient measures to control pollution.)
254 Metro Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos.
17194748 (S.C. Dec. 18, 2008), available at http://scjudiciary.gov.ph/jurisprudence/2008/de-
cember2008/171947-48.htm (Last visited on August 30, 2017).
255 See Presbitero J. Velasco, Jr., Manila Bay: A Daunting Challenge in Environmental
RehabilitationandProtection, 11 OR. REV. INT'L L. 441 (2009).
256 See DAVID R. BOYD, THE ENVIRONMENTAL RIGHTS REVOLUTION: A GLOBAL STUDY OF CONSTITUTIONS
168-169 (2011).
257 ERIN DALY & JAMES MAY, CONSTITUTIONAL ENVIRONMENTAL RIGHTS AND LIABILITIES 84 (2012).
25 Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the
Impossible?, THE AMERICAN JOURNAL OF COMPARATIVE LAW 37.3, 495-519 (1989).. (But several
exparte orders show that there was no effective participation. M.C. Mehta v. Union of India,
(1987) 4 SCC 463 : AIR 1988 SC 1037; (1997) 2 SCC 411).
259 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
three federal government officers, and two NGO representatives, 260 is one such
hybrid regulatory bodies created by higher court edict seen as examples of the
institutional forms.26
'
Analysis of these cases shows that the courts have, through or-
ders, succeeded in involving municipal corporations, state and national agen-
cies, the government departments and made them work in tandem with private
offenders to alleviate the problem at hand. This is particularly witnessed in the
waste management cases, with cohesive orders, whose compliance was regu-
larly checked upon. Requiring municipal corporations to formulate plans based
on models successful in other cities, like in the Almitra case, is evidence of
such national co-ordination, essential for effective redressal of such system-
atic issues. Furthermore, popular support for actions will increase incidence
of compliance, enticing even political actors to encash fruits of such dialogue.
260 RITWICK DUTTA & BHUPENDER YADAV, SUPREME COURT ON FOREST CONSERVATION 11-12 (2nd edn.,
2007).
261 K. Sivaramakrishnan, Environment, Law, and Democracy in India, 70 THE JOURNAL OF ASIAN
STUDIES, No. 4, 905-928, 911 (November, 2011).
262 The history of environmental litigation, constitutional and otherwise, is littered with exam-
ples of abandoned litigation. Indeed, one commentator contends that the Oposa litigation was
never fulfilled because the original plaintiffs did not pursue the matter after the Philippine
Supreme Court's remand: "The Supreme Court did not order the cancellation of the TLAs, but
ordered the case to be remanded for trial. Because the petitioners did not pursue the case after it
was remanded, no TLA was cancelled. Dante B. Gatmaytan. The Illusion ofIntergenerational
Equity: Oposa v. Factoran as Pyrrhic Victory, GEORGETOWN INTERNATIONAL ENVIRONMENTAL
LAW REVIEW 15.3 (2003): 457, 459.
263 In the Godavarman case for instance, Harish Salve was appointed as the amicus curiae. Even
after the petitioner died in 2016, the case continues. Even before, he was not actively involved.
264 D.K. Basuv. State of W.B., (1997) 1 SCC 416.
Another lot of cases where the Judiciary has popularly used the
continuing mandamus is cases that deal with fundamental freedoms, and par-
ticularly the right to life, and all its concomitant entitlements. As is discussed in
this section, this has yielded varying degrees of success, with, again, the major
road block being Government inaction. However, more so than in other areas,
these involve issues that grab the public eye and we see that active involvement
of the populace and the administration can make judicial intervention yield
non-conventional positive results.
1. Labour Welfare
conditions, with no access to necessities like clean water. 26 7 The court had inter-
vened by issuing wide-ranging remedial orders, encompassing twenty one di-
rectives to the State Government, among other things, to constitute a Vigilance
Committees in order to implement the Bonded Labour System (Abolition) Act,
1976, in accordance with the court's guidelines; to work in coordination with
District Magistrates for identification and release of bonded labourers; to draw
up a scheme for their rehabilitation within the prescribed time period and im-
plement the same; take steps to ensure payment of minimum wages within
six weeks; and various other directions to ensure safety standards and better
working and living conditions. 268 A notable direction made, arguably to incen-
tivise implementation of the laws was that, if the Government failed to ensure
performance of statutory obligations by the employers within the prescribed
time periods, the Government would itself have to carry them out.2 6 9 What
ultimately makes this judgment a beginning point of discussion for ensuring
implementation of court orders and also continuing mandamus is the appoint-
ment of Joint Secretary in the Ministry of Labour as a Commissioner who was
entrusted with detailed duties to ensure compliance with court directives and
report back to the court.270 This was one of the first instances of such court ap-
pointments that would, as discussed below, become a characteristic feature in
cases under court supervision.
One of the objections put forth before the case, questioned the
court's powers to appoint an inquiry commission that was to report to the Court
to exercise jurisdiction under Art. 32 of the Constitution. 2 7 1 While the court
notably affirmed that, given the wide contours of powers vested in it under
Article 32 and in larger interests of administration of justice and further for en-
forcement of fundamental rights, such powers are implicit in its discretionary
powers.272 However, this dealt exclusively with fact-finding and to aid the court
in delivering its judgment. Nevertheless, no similar observation was made as to
post-decisional appointments of commissioners and seeking reports for imple-
mentation. This could arguably be gauged as being also within the contours of
Article 32 for the protection of constitutional safeguards though no discussion
along these lines ensued.
The next two decades saw two interventions by the court. A cou-
ple of years after the delivery of the judgment, contempt petitions were filed
alleging non-implementation of directives, which led the court to appoint mul-
tiple commissioners and even a Committee to conduct inquiries and report to
the court. 273 Their findings revealed ineffective implementation and showed
27 Id., ¶5-6.
268 Id., ¶73.
269 Id.
270 Id., ¶74-75.
27 Id., ¶105.
22 Id., ¶115-116.
273 Bandhua Mukti Morcha v. Union of India, (1991) 4 SCC 174, ¶3.
that even though some steps had been taken by the Government, the majority
of the directives remained unimplemented.274 The Court went on to discuss the
multiple ways in which the Government could have taken steps, for instance,
by locating a police station or outpost nearby, a doctor could be appointed and
if say the workers were fewer in number, a visiting doctor could be hired.27 5
Noting however its inherent institutional and administrative limitations to
monitor and regulate such schemes, the responsibility to take such action was
said to vest upon the Government. Ultimately, the court hoped that "if a direc-
tion is issued to the Chief Secretary of the State to regulate these aspects the
reposing of trust by this Court would not turn out to be misplaced."276 Without
making any specific orders upon the inaction, the Court only called upon the
Government to attend to the needs of the workmen,2 7 and directed the State to
ensure that the labourers identified by reports continued to work with the im-
proved conditions of service, as mentioned, and those wanting to return were
released from bondage and rehabilitated under the Centre's scheme.278 Again,
after eight to nine years, violations of labour welfare statutes as well as the
court's directives in the earlier two judgments were noted, especially in terms
of payment of minimum wages, and the Supreme Court suggested that the State
Government may consider cancelling the leases of the defaulting employers.27 9
'
After having supervised the matter for multiple years, the court thought it best
to vest the responsibility to the NHRC, directing reports to be sent instead to
the NHRC, giving it the powers to issue directions.3 0 2
294 Upendra Baxi (1) v. State of UP., (1983) 2 SCC 308, ¶8-18.
295 Id., ¶20-26.
296 Id., ¶27.
297 Id., ¶28.
298 Upendra Baxi (2) v. State of U.P., (1986) 4 SCC 106.
299 Id., ¶2.
300 Id.
301 Id., ¶8.
302 Upendra Baxiv. State of UP., (1998) 9 SCC 388.
303 (1998) 8 SCC 622.
304 Id., ¶1.
305 Kumar Regmi, Trafficking intoProstitutionin India and the Indian Judiciary, 1 INTERCULTURAL
HUM. RTs. L. REV. 373 (2006).
306 RAJESWARI SUNDER RAJAN, THE SCANDAL OF THE STATE: WOMEN, LAW, AND CITIZENSHIP IN
Supreme Court has seldom remained shy of walking on edges or even entirely
crossing over.
food as a part of Article 21, to oversee its effective realisation.3 21 Standing out
from most similar struggles, the device of continuing mandamus used in the
PUCL case, coupled with cooperation from civil society, led to tangible success
of the drawn-out litigation.3 22 In 2001, the PIL filed by PUCL brought to the fore
the issue of starvation death in various parts of the country while food stocks
reached unprecedented levels. 3 23 The massive litigation has been expanded to
cover a wide range of related issues including implementation of schemes, ur-
ban destitution, the right to work, starvation deaths, maternity entitlements and
even broader issues of transparency and accountability.3 24
321 Lauren Birchfield & Jessica Corsi, Between Starvationand Globalization:Realizing the Right
to Foodin India, 31 Mich. J. Int'l L. 691, 718 (2010).
322 SOCIAL RIGHTS JUDGMENTS AND THE POLITICS OF COMPLIANCE: MAKING IT STICK 297 (Malcolm
Langford, Cesar Rodriguez-Garavito & Julieta Rossi, 2017).
323 Right to Food Campaign, Supreme Court Orders on the Right to Food - A Toolfor Action, 6
(August 2008) available at http://www.sccommissioners.org/CourtOrders/toolfor action.pdf
(Last visited on August 21, 2017).
324 Id., 7.
325 Supreme Court Order dated 20th August, 2001 [People's Unionfor Civil Liberties v. Union of
India, WP (C) No. 196 of 2001, order dated 20-8-2001 (SC)].
326 A repository of the court's orders can be found at Right to Food Campaign, Supreme Court
Orders, available at http://www.righttofoodcampaign.in/legal-action/supreme-court-orders
(Last visited on August 21, 2017).
327 For a detailed description of court orders, see - Right to Food Campaign, Supreme Court
Orders on the Right to Food - A Toolfor Action, 6 (August 2008) available at http://www.sc-
commissioners.org/CourtOrders/tool for action.pdf (Last visited on August 21, 2017).
328 Id. (Also on 29th October 2002 [People's Union for Civil Liberties v. Union of India, (2011)
12 SCC 675], the Supreme Court directed the state governments to appoint "assistants to the
Commissioner's". The mandate of the assistants is simply to "render such assistance to the
Commissioner's as the Commissioner's may require". In addition, each state government is
to appoint a "Nodal Officer" for the purpose of "ensuring the due implementation" of food-
related schemes. The nodal officers are expected to "provide to the Commissioner's full ac-
cess to relevant records and provide relevant information". The Commissioners have also
nominated their own "Advisor" in each state. The order of 8th May 2002 [People's Union for
Civil Liberties v. Union of India, (2011) 12 SCC 673] allows the Commissioners "to take the
assistance of individuals and reliable organisations", adding that all officials are directed to
fully cooperate with such persons/organizations. The Advisors essentially serve as a bridge
between the Commissioner's, the State Government, and various citizens' groups.)
329 On 8th May 2002 [People's Union for Civil Liberties v. Union of India, (2011) 12 SCC 673];
Supreme Court Order dated 29th October, 2002, [People's Union for Civil Liberties v. Union
of India, (2011) 12 SCC 675]; order dated 9th May 2005, [People's Union for Civil Liberties v.
Union of India, (2009) 16 SCC 614].
330 Order dated 29th October 2002 [People's Union for Civil Liberties v. Union of India, (2011)
12 SCC 675]: "Adequate funds shall be made available to the Commissioner's by the Union of
India to enable them to perform [their] functions."
331 Supreme Court Order dated 29th October 2002 [People's Union for Civil Liberties v. Union of
India, (2011) 12 SCC 675].
332 Supreme Court Order dated 8th May 2002 [People's Union for Civil Liberties v. Union of
India, (2011) 12 SCC 673].
Supreme Court Order dated 29th October 2002 [People's Union for Civil Liberties v. Union
of India, (2011) 12 SCC 675]; orders dated 28th November, 2001 [People's Union for Civil
Liberties v. Union of India, (2007) 1 SCC 728] and 8th May, 2002 [People's Union for Civil
Liberties v. Union of India, (2011) 12 SCC 673]; See also Supreme Court Order dated 2nd May,
2003 [People's Union for Civil Liberties (PDS Matters) v. Union of India, (2013) 2 SCC 688].
334 Right to Food Campaign, Supreme Court Orderson the Right to Food - A ToolforAction, 12-
13 (August 2008) available at http://www.sccommissioners.org/CourtOrders/toolfor-action.
pdf (Last visited on August 21, 2017).
People's Union for Civil Liberties v. Union of India, (2013) 2 SCC 682.
336 People's Union for Civil Liberties (PDS Matters) v. Union of India, (2013) 2 SCC 663.
337 SOCIAL RIGHTS JUDGMENTS AND THE POLITICS OF COMPLIANCE: MAKING IT STICK 302 (Malcolm
Langford, Cesar Rodriguez-Garavito & Julieta Rossi 2017).
The case has been called the most spectacular case of a court pro-
tecting the 'right to food.'338 Active litigation saw the right to food struggle take
on the shape of a massive national movement that remains an active initiative.
It is an informal network of organizations and individuals, with its origins in
the 2001 petition, and has played a pivotal role in seeing advocating a right to
food, acting as petitioners and activists, and having filed numerous interlocu-
tory applications with detailed, concrete and quantifiable requests that have
considerably shaped court orders.339 The Campaign has helped in publicising
the initiative, maintaining an online repository of court orders, carrying out
public meetings, etc. to mobilize collective action and empowering people at
grassroots level, while also interacting directly with government officials and
agencies.340 The campaign, the commissioners and the court functioned like a
well-oiled machine, working tirelessly to make the now justiciable right to food
an effective and realisable entitlement.
'
As discussed later, public opinion plays a key role in incentivising government
action, especially in such cases that involve long-term policy decisions.
The authors opine that the use of the sturdy jurisprudence on the court's pow-
ers to punish for its contempt is a practicable solution to add to the sanctity of
court orders by making the threat of sanction on non-compliance by public of-
ficers more credible. We also see how the nature ofjudicial intervention in such
cases are substantially different from the regular brand of adversarial litigation,
visualizing the process as a grand societal dialogue that nudges at ineffective
functioning and lack of coordination to bring about tangible social change.
Article 142 of the Indian Constitution read along with Article 129
confers power on the Supreme Court to not only compel obedience of its or-
ders but also punish for contempt of its authority. Contempt under the Indian
jurisdiction has been categorised into two types, civil and criminal contempt.345
Civil contempt primarily refers to the non-compliance of court orders whereas
criminal contempt refers concerns the obstruction of administration of justice
either by criticising the judges or the court process publicly or scandalizing the
court in any other manner.34 6 The discussion in the parts before makes it appar-
ent that civil contempt of court is significant in the current analysis, especially
in light of the court orders being flouted by the government officials. Thus, in
this part of the paper, we will be first discussing the importance of contempt
as a tool of deterrence to prevent non-compliance of orders, followed by an
analysis of the Court's existing attitude towards using contempt against the
government officials as compared to how it should ideally be.
redevelop police reforms, the Supreme Court expressing its helplessness de-
clined the contempt petition, because of non-obedience of orders from most of
the states. 358 While the Courts have tried to intimidate the officers with penal
actions at several occasions, 359 its inability in determining the liability of the
individual(s) and hold them responsible has abetted in the breakdown of the
constitutional machinery.
358 TarunUpadhyay, Police bill not similarto AFSPA, HINDUSTAN TIMES (New Delhi) February 28,
2013.
359 Abhinav Gargi, Nothing has Changed since 1997 judgment, Vineet Narain says, THE TIMES
OF INDIA (May 10, 2013) available at http://timesofindia.indiatimes.com/india/Nothing-has-
changed-since-1997-judgment-Vineet-Narain-says/articleshow/19978247.cms (Last visited on
June 6, 2017).
360 Indian Oil Corpn. Ltd. v. Sheo Shankar Mishra, 1995 SCC OnLine Pat 358 : (1995) 2 PLJR
875.
361 S.K. Samsudin v. Ravikant, 1996 SCC OnLine Cal 417 : 1997 Cri LJ 1603; K.A. Ansari v.
Indian Airlines Ltd., (2009) 2 SCC 164.
362 Balai Krushna Tej v. Inspector of Schools, 1990 SCC OnLine Ori 165 : (1990) 70 CLT 402.
363 Olmstead v. United States, 1928 SCC OnLine US SC 131 :72 L Ed 944 : 277 US 438 (1928).
364 See Special Reporter, Cauvery row: Supreme Court to Continue Hearing Water Dispute Case
Time and again, the court orders have been become subjects of re-
buke without any successful results. The officials do not fear contempt because
of the reluctance shown by the Courts in using contempt against government
servants and the difficulty in determining the liability because of no specifica-
tion of duties.
INCENTIVISING CHANGE
VI. CONCLUSION
While this has also not always yielded success, and repeated or-
ders have fallen on deaf years, we have seen that at least limited, and in some
cases even drastic change has been facilitated. An analysis aimed at assessing
the reasons for varied success stories led us to conclude that the problem mostly
emanates not from the structure or form of the remedy in itself. Rather, fault in
most cases can be attributed to the nature of judicial orders themselves, which
may be either too vague, or detached from practical considerations and an in-
sight into the mechanics of administrative functioning. On the other hand, we
see that specificity of directions, an understanding of how the state machinery
functions, and an involvement of interested parties and stakeholders in the pro-
cess throws up better results.