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834 RaoThere is no doubt that PIL has helped the Courts, while exercising writ jurisdiction,to deal with such matters as preservation of environment, abuse of Ordinance-makingpower, corruption in public li'fe and a wide variety of matters involvingsocial justice such as welfare of children in jails, sexual exploitation of theblind, gas leak tragedy in Bhopal, blinding of prisoners in Bhagalpur Jail, ill-treatmentof women suspects in police lock-ups, non-payment of minimum wages to.the workers employed in famine relief, freedom for bonded labour, etc.Excess of useHowever, courts do not always remain circumspectin the use of PIL. Petitionsare allowed to be filed based onnewspaper reports which may not be based onverified facts and courts rush to issue notices, seek production of original files bypublic authorities and continue proceedings for prolonged periods. Sometimes,courts act suo motu on unverified or one-sided newspaper reportor private petitionand summon public authorities to explain. judges do very little to discouragefrivolous PIL petitions; no punishment is awarded to petitioners telling falsehoodsto the court.The very recent Vineet Narain case,149 popularly known as the Hawala case,underlines the dangers involved in pursuing an activist approach in PIL litigation.It involved a complaint of inertia by the Central Bureau of Investigation (CBI) inmatters where accusations of corruption were made against high dignitaries and aprayer that the investigative process, which is under the control of the Executive,be activated. Two diaries and two note books were seized from the premises of thealleged bribe giver. These documents contain accounts of payments made to personsidentified only by initials which, it was alleged, corresponded to the initialsof various high-ranking politicians, in power and out of power, and of high rankingbureaucrats. The Supreme Court thought it fit to keep the matter pendingwhile the investigations were being carried on ensuring that this was done bymonitoring them from time to time and issuing orders in this behalf. The Courtstated that the task of monitoring would end the moment a charge-sheet was filedin respect of a particular investigation and that the ordinary processesof the lawwould then take over. It further directed the CBI not toreport the progress of theinvestigations to the Prime Minister so as to maintain, what it called, the credibilityof the investigation. It stated that the procedure adopted by it in this case wasone of "continuing mandamus".After investigation, 34 charge-sheets against 54 persons were filed. However, alarge number of prosecutions launched as a result of monitoring by the SupremeCourt have finally resulted in discharge of the accused150 at the threshold since thetrial court was not satisfied that aprima facie case was made out by the investigation.While reflecting on these discharges, the Supreme Court felt that either the149 Vineet Narain v. Union of India (note 28).150See, for example, Central Bureau of Investigation v. VC, Shukla, 1998 (1) Scale 84.http://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
Use and Abuse of the Indian Constitution 835investigation or the prosecution or both were lacking. The Court held that, by virtueof article 32 read with article 142, where there is inaction by the Executive inthe matter of observance of the Rule of Law or of human rights, the judiciarymuststep in to provide a solution till such time as the Legislature acts to performits role by enacting a proper legislation to cover the field. The Court then proceededto direct that the CBI be given statutory status, that the Central VigilanceCommissioner (CVC) be appointed by the President on the basis of recommendationsof a Committee consisting of, among others, the Prime Minister andLeader of the Opposition, that the CVC should be responsible for the efficientfunctioning of the CBI, that proposals for improvement of infrastructure, methodsof investigation should be decided urgently, etc. The Court gave similar directionsin respect of the Enforcement Directorate, Prosecuting Counsel, appointmentof special counsel, etc. These directions were, no doubt, the product of theCourt's eagerness to deal with corruption, particularly at high places.The Vineet Narain judgment can be faulted on several grounds. It ought to havebeen clear to the Court from the time it looked into the case that its monitoringrole would exert enormouspressure on the CBI to file charge-sheets in the competentcourt. It may not be fair for the Court to accuse either the investigation orthe prosecution for the discharge of the accused. There could be no serious objectionto the Court directing CBI to investigate the allegations, since it felt that thatbody failed in performing its duty; but the Court going beyond that in its activistrole through the medium of what it called "continuing mandamus" caused irreparabledamage to the reputation of scores of high functionaries for no fault oftheirs.The declaration that the Supreme Court could legislate till the Legislature occupiesthe field is a mere affirmation without any support from articles 32 and 142,the articles claimed by the Court as supporting such a declaration; it underminesthe principle of separation of powers. The legislative and executive measures directedby the Supreme Court are accordingly unsupportable; in ordering them,the Court is also getting into a sphere in which it has no Iexperience or special insightat all and on that account may end up making mistakes affecting its credibilityas a judicial organ of the State. Look at what happened in Unnikrishnan v.State ofA.P., wherein the Supreme Court thought it fit to frame a detailed schemefor admission to, and fees chargeable by, private medical engineering and certainother professional colleges.151 The scheme was no doubt intended to check commercialisationand profit-making by private institutions. Many times thereafter ithad to clarify and modify that scheme.152 Instead of interpreting the Constitution,the Court is now engaged in interpreting the meaning and scope of its administra-151-Supra note 93, at 2247 2250.152 See Unnikrishnan v. State of A.P., (1993) 4 SCC 111; TM.A. Pai Foundation (I) v. State of Karnataka,(1993) 4 SCC 276; TM.A. Pai Foundation v. State of Karnataka and Others, (1994) 2 SCC199; Manipal Academy of Higher Education v. State of Karnataka, (1994) 2 SCC 283; TM.A. PaiFoundation v. State of Karnataka, (1994) 2 SCC 734; Paval Ammal Vaiyapuri Educational Trust V.TR. RameshGovernment of TN., (1994) 6 SCC 259; Institute of Human Resources Development v.http://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
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