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2017 DIGILAW 302 (GAU)

Rosemary Dzuvichu v. State of Nagaland

2017-03-09

L.S.JAMIR, SONGKHUPCHUNG SERTO

body2017
JUDGMENT & ORDER : S. Serto, J. Heard Ms. K. Kikhi, learned counsel who appeared for the petitioners in all the P.I.Ls. Also heard Ms. V. Suokhrie, learned Addl. Sr. Government Advocate for the State respondents in all the P.I.Ls, Mr. N. Mozhui, learned counsel for the respondent No.4 in all the P.I.Ls except in P.I.L No. 9(K) of 2015, and Mr. A. Zhimomi, learned counsel for the State respondents in P.I.L No. 9(K) of 2015. We have also heard Mr. Z.N. Ngullie, learned CGC who appeared on behalf of Union of India in P.I.L No. 7(K) of 2016, P.I.L. No. 12(K) of 2016, and P.I.L. No. 10(K) of 2016, and Mr. Yangerwati, learned CGC who also appeared on behalf of the Union of India where Mr. Z.N. Ngullie has not entered appearance. On 09.03.2017, the above PILs came up before us for admission. 2. The PILs are concerning maintenance of public health standard, addressing of the issues of maternal and infant mortality and implementation of government schemes relating to public health, women and child in particular, improvement of infrastructures like, construction of health centre buildings, providing of equipments, man-power, ambulances and also for providing of medicines etc. Since, the subject matters in all the PILs are more or less the same they have been clubbed together. All these petitions are filed by eight different individuals. 3. At the very outset Mr. Zhimomi, learned counsel who appears on behalf of the respondent No. 1, 2 and 3, in PE. No. 9(K) of 2015, raised a preliminary objection on behalf of the respondents by stating that the petitioner has not complied with the requirement of Rule 10(g) of the Gauhati High Court (Public Interest Litigation) Rules, 2011, and since these rule was framed under the direction of the Hon'ble Supreme Court, it is mandatory in nature. Therefore, the PILs has to be dismissed for non-compliance of the said rule. Similarly, Mr. Mozhui, learned counsel, who appears on behalf of the respondent No. 4, in all the PILs, except in PIL No. 9(K) of 2015, also raised the same preliminary issue and prayed for dismissal of all the PILs on that ground. Ms. V. Soukhrie, learned Addl. Senior Government Advocate, who appears on behalf of all the State respondents in all the PILs also submitted on the same line. Also, heard Ms. Ms. V. Soukhrie, learned Addl. Senior Government Advocate, who appears on behalf of all the State respondents in all the PILs also submitted on the same line. Also, heard Ms. K. Kikhi, the learned counsel who appears on behalf of all the petitioners in the PILs. The learned Counsel submitted that PIL is not adversarial litigation but it is a co-operative or collaborative effort by the petitioner, the State or public authority and judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society. Therefore, there is no need of strictly applying procedural jurisprudence in these PILs. As such, the point of preliminary objection raised by the learned counsel representing the respondents, ought not to be allowed to stand as a stumbling block in admitting the PILs. 4. Before we come to the exact point of objection raised by the learned counsel for the respondents, we would like to lay down here the background as to how the Rule under which the objection has been raised originated. But, before that it may be worthwhile to briefly state how public interest litigation has evolved. Hon'ble Supreme Court of our country' in the case of State of Uttaranchal v. Balwant Singh Chaufal & Ors., reported in (2010) 3 SCC 402 , at para 42 to 44, had briefly recorded how PIL has evolved in the judicial system of our country as follows: "42. The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society the poor and the marginalized sections of the society. This jurisdiction has been created and carved out by the judicial creativity and craftsmanship. In M. C. Mehta & Another v. Union of India & Others AIR 1987 SC 1086 , this Court observed that Article 32 does not merely confer power on this Court to issue direction, order or writ for the enforcement of fundamental rights. Instead, it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. The court asserted that, in realization of this constitutional obligation, "it has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights". Instead, it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. The court asserted that, in realization of this constitutional obligation, "it has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights". The Court realized that because of extreme poverty, a large number of sections of society cannot approach the court. The fundamental rights have no meaning for them and in order to preserve and protect the fundamental rights of the marginalized section of society by judicial innovation, the courts by judicial innovation and creativity started giving necessary directions and passing orders in the public interest. 43. The development of public interest litigation has been extremely significant development in the history of the Indian jurisprudence. The decisions of the Supreme Court in the 1970's loosened the strict locus standi requirements to permit filing of petitions on behalf of marginalized and deprived sections of the society by public spirited individuals, institutions and/or bodies. The higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In suitable cases, the courts have also given guidelines and directions. The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation. If the cases of the decades of 70s and 80s are analysed, most of the public interest litigation cases which were entertained by the courts are pertaining to enforcement of fundamental rights of marginalized and deprived sections of the society. This can be termed as the first phase of the public interest litigation in India. 44. The Indian Supreme Court broadened the traditional rule of standing and the definition of "person aggrieved"." 5. In the course of time, there has been instances, where the Hon'ble Supreme Court had come across attempts to abuse PIL which by now has become a vital and potent weapon for protecting the rights of the common citizen, specially, the downtrodden. 44. The Indian Supreme Court broadened the traditional rule of standing and the definition of "person aggrieved"." 5. In the course of time, there has been instances, where the Hon'ble Supreme Court had come across attempts to abuse PIL which by now has become a vital and potent weapon for protecting the rights of the common citizen, specially, the downtrodden. Therefore, the Hon'ble Supreme Court has had to introduce remedial measures to curb the menace from time to time, but found those remedial measures not sufficient enough to safeguard this very vital and important system, which has been nurtured, developed and protected jealously by itself and the High Courts. Therefore, the Hon'ble Supreme Court in order to encourage and promote genuine and bona fide PILs and at the same time to curb its misuse and abuse had issued directions in the same case i.e. State of Uttaranchal v. Balwant Singh Chaufal & Ors. (supra) and they are as follows:- "198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:- (1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Court's who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter. (3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 199. Copies of this judgment be sent to the Registrar Generals of all the High Court's within one week." 6. Following the directions of the Hon'ble Supreme Court, this High Court in exercise of the power conferred under Article 225 of the Constitution of India, has made the Rule called Gauhati High Court (Public Interest Litigation) Rules, 2011. And under Part III, Rule 10 of the said Rule, instruction for filing Public Interest Litigation has been provided. At Clause (g) of Rule 10 of the said rule it is provided as follows; "(g) In para 6 of the writ petition, details of the representations made to the authorities concerned for remedial actions and replies, if any, received thereto shall be set out precisely." According to this rule it is obligatory for the petitioner of a PIL to give or submit representation or memorandum to the authority concerned before the PIL is filed in order to give the authority the opportunity to perform its duty. It would be seen in the above stated rule that the word ‘shall' is used. In normal interpretation of laws, statutes, mles the word ‘shall' is generally accepted to connote mandatory nature of such rule or law. Therefore, the above stated rule has to be followed as it is written. At this, learned counsel for the petitioners Ms. K. Kikhi, identified 4 petitions i.e. PIL No. 5(K) of 2015, PIL No. 7(K) of 2016, PIL No. 13(K) of 2016 and PIL No. 14(K) of 2016, in which representations were stated to have been submitted to the respondent authorities. At this, learned counsel for the petitioners Ms. K. Kikhi, identified 4 petitions i.e. PIL No. 5(K) of 2015, PIL No. 7(K) of 2016, PIL No. 13(K) of 2016 and PIL No. 14(K) of 2016, in which representations were stated to have been submitted to the respondent authorities. As regard to PIL 5(K) of 2015, a complaint was submitted to the Managing Director, Naga Hospital Authority, Kohima, Nagaland only and left out all other interested State authorities who are respondents in the PIL. As such, this petition cannot be said to have met the statutory requirement as given under Rule 10(g) of the Gauhati High Court (Public Interest Litigation) Rules, 2011. As regard to PILNo. 7(K)of 2016, representation was stated to have been submitted to His Excellency, the Governor of Nagaland with copy endorsed to the following authorities: i. The Chief Secretary, Government of Nagaland. ii. The Commissioner of Nagaland iii. The Principal Director, H&FW, Government of Nagaland. iv. The Chief Medical Officer, Wokha. Though copies of the representation, as stated above, were endorsed to some of the authorities who are made parties in the said PIL, some of the important authorities who are also interested parties in the PIL were not given the same. Therefore, this petition cannot be said to have met the requirement under Rule 10(g) of the Gauhati High Court (Public Interest Litigation) Rules, 2011. As regard to PIL 13(K) of 2016, a representation was submitted to the Minister, Health and Family Welfare, Government of Nagaland but all the other interested state authorities who are made respondents in the PIL were left out. Therefore, this petition also is not in conformity with the provisions of Rule 10(g) of the Gauhati High Court (Public Interest Litigation) Rules, 2011. As regard to PIL No. 14(K) of 2016, as submitted by the learned counsel, representation was submitted to some of the authorities who are made parties but leaving behind some of the important and interested authorities like Union of India represented by the Secretary, Ministry of Health and Family Welfare, the Chief Secretary of Nagaland and the District Project Manager, National Health Mission. Therefore, this petition also cannot be said to have met the requirement of Rule 10(g) of the said rule. 7. Therefore, this petition also cannot be said to have met the requirement of Rule 10(g) of the said rule. 7. We have perused all the PILs laid before as and we have found that in none of the petitions, the petitioners having discharged their statutory obligation as contained in Rule 10 (g) of Gauhati High Court (Public Interest Litigation) Rules, 2011 which is mandatory. Therefore, we are unable to admit the petitions for that reason. 8. However, before we part with this order we would like to record our observations as follows: These batch of PILs in our view possess a beneficent potency beyond the individual or individuals who has filed them. Therefore, we have viewed them with all seriousness and concern. Further, realising that the Courts in our country have admitted PILs by broadening the base of the concept of locus standi considering the fact situation in our country that the masses in many senses are weak and therefore, unable to fight for themselves for justice, we have tried to discharge our constitutional obligation by broadening the base of locus standi. We have also taken note of a sad reality staring at us today i.e., the poor masses are unable to come to the Courts for redressal of their grievances, therefore, they have started losing hope that changes can be brought about through our justice delivery system. With that in our mind, we have tried to discharge our constitutional obligation on the issues raised in the PILs with out-most concern. But as stated above, the Rule has been framed for strict compliance in order to ensure that genuine and bona fide PILs are given the attention and time they deserved, and also to maintain the sanctity of the mechanism, by sifting the chaffs from the grain. Therefore, we are left with no choice but, to ensure strict compliance of the Rule first, before the issues raised in the PILs can be taken up. In view of what has been stated above, we are unable to admit the PILs, hence, they are dismissed. However, we must quickly add here that this dismissal shall not be a bar for the petitioners to submit representations or memorandums to the respondent/authorities concerned, to give them the opportunity to discharge their duties on the subject matters and, come back to this Court, in case they fail to do so. However, we must quickly add here that this dismissal shall not be a bar for the petitioners to submit representations or memorandums to the respondent/authorities concerned, to give them the opportunity to discharge their duties on the subject matters and, come back to this Court, in case they fail to do so. Needless to say, but after proper compliance of Rule 10 of the Gauhati High Court (Public Interest Litigation) Rules, 2011. There is no order as to cost.