Social circle influence, anger, and when not to take up a case suo motu: Former judges recount experience in handling suo motu matters

Controversy recently erupted when Solicitor General of India Tushar Mehta informed a Bench of the Supreme Court hearing a suo motu case on the COVID-19 migrant crisis that “prophets of doom” and “armchair intellectuals” were spreading negativity and politicising the issue.

The case essentially deals with the welfare of daily wage-earning migrant workers who were left with no option but to walk hundreds of kilometers during a nationwide lockdown to reach their native places.

A day before the Apex Court decided to take up the matter suo motu, a number of lawyers had written to Chief Justice of India SA Bobde beseeching the Court to do its constitutional duty and intervene in the matter.

Even though the Supreme Court through Justice Ashok Bhushan clarified that it was not bothered by who wrote to them but only their conscience, by then questions had already been raised on the efficacy of the suo motu proceedings in the Apex Court.

Bar & Bench spoke to former judges of the Supreme Court and the High Courts who had formerly taken such suo motu cognizance of matters where it was felt that justice had to be done. The former judges provide some insight into what goes on in their minds when they take up matters themselves and adjudicate upon the same.

Justice BN Srikrishna, former Supreme Court Judge

There was a time in the 1970s and 80’s, when Justice PN Bhagwati had started with territorial jurisdiction and other such things; even post that, petitions would be taken up suo motu and treated as writ petitions placed on record. When judges used to read newspapers, they used to take those matters up, issue notice and call upon government officials. Now this has turned into PIL. The Constitution gives rights to all, but many are not aware of these. Thus, this has helped in addressing those concerns.

However, now PIL has completely lost its sense of purpose. Now, if an industrialist starts a factory and the wife does not like it, a PIL will be filed saying there is environmental damage or income tax violation. PIL has completely lost its sheen. Now it's more persecution interest litigation or profit interest litigation.

When I was in the Bombay High Court in the early 1990s, a lot of letters and postcards were addressed to the Chief Justice PD Desai. I was the one who was entrusted to sort through all these letters and check for the ones which deserved to be taken suo motu cognizance of. Often, we used to call the ones who had written letters to understand their perspective or issues before taking up a matter. There were times when even newspaper clippings were sent to the judges. If today we see migrants walking thousands of kilometers on the road with children in their lap, then does it not touch our conscience?

The statement by Solicitor General Tushar Mehta is utter nonsense. Thank God he was not in my court.

A judge takes an oath to do justice to the Constitution without fear or favour. During the Emergency, (former Attorney General) Niren De had argued that fundamental rights are suspended during Emergency and that even if someone was shot, they had no recourse. Are we coming back to that age?

Justice Pradeep Nandrajog, former Chief Justice of the Bombay High Court

As a puisne judge in the High Court, there were three to four times even I took suo motu cognizance. When I was sitting on the criminal appellate jurisdiction, an application was filed for suspension of sentence of a person convicted of murder. The application was by his father who stated that when he went to the prison to meet his son, he saw that his health condition was poor. We issued notice for two days and on the second, we got the report. But on the same day, news reports showed that the same convict had died in jail. His body was taken to the mortuary and when his father received the body, he stated that the eyes were eaten up by rats. This warranted a look at the mortuary. Now there was to be an inquiry as to why the convict was not sent to a government hospital. The second question was on the state of mortuaries. Since I was not dealing with PILs, I sent it to be placed before the PIL bench.

When letter petitions are received, they are always placed before a bench of two or three judges. If the judges feel a matter is such that suo motu cognizance needs to be taken, then the matter is placed before the Chief Justice, in which case notice is usually issued.

The other way is I read a paper in the morning and think this issue needs to be taken up. But here lies the problem. Suppose a judge is hearing civil suits, then a personal letter to the Chief Justice will do. It will be a letter petition even though I am a judge. If the matter is urgent, then I can pass a judicial order but make it a point to place the matter before the roster bench. Otherwise, it becomes a one-upmanship among judges.

That's what I saw as Chief Justice. When I was the Chief Justice, if there was any judge who had taken any public interest cognizance, then the Registry was directed to place it before Chief Justice, who would place it before appropriate benches.

I do not think there is any media pressure on the judges. If the media has taken up an issue, then it's not the media, but the public interest element that the court pursues.

However, for a sitting judge to take up a case, his social circle also plays a role. In my case, my wife was an academician. So my private circle was only judges, lawyers, and academicians.

But these people represented civil society and could tell the judge and confront them on burning social issues. Now if a reporter with an interview or photograph has reported on a matter of fact like rescued brick kiln labourers who were later left to fend for themselves, why shouldn't such cases be taken up suo motu?

A good judge will always derive the distinction between political, theoretical and factual elements in what one is saying. In the migrants matter, did the government not know that 90% of labour is in the informal workforce? So they are outside the government tracking system. They are living in 8 feet by 8 feet rooms where 8 people stay together. So when we talk of social distancing, then talk about Dharavi, 10 lakh people stay there and if you give them 6 feet distance, the chain will end in Pune. So the government did not know that they needed to be contained in that 2.5 square kilometers only? Did the government not know that by the time the first lockdown is implemented, at least 10 will be infected? Progression rate suggests that 1 infects 3 and 30 infects 90. This is not a matter of political philosophy or ideology, but geometrical progression.

If the activists come crying, then we see that this is staring at us in the face. All these lawyers who have written are a part of the system and it pains them. What is wrong in this?

When these matters first reached the Apex Court, the judge said, “How can we stop people from walking?” The plea was not for the Court to stop people from walking, but to give facilities to people. Now this suo motu cognizance will not yield any result, as all would be over by June 5. All of this was solely the Central government’s decision, and to put it on state governments is very unfortunate.

Justice SN Dhingra, former Delhi High Court Judge

Junior judges cannot take suo motu cognizance. Even if suo motu cognizance is taken, the cases need to be referred to the PIL bench. At times, suo motu cognizance is usually taken in a moment of anger or public debate. In the ’80s, there was the Vishnu Pandit case, where Pandit was the right hand of HK Bhagat. There were allegations of rape against him. BS Chowdhary, a Delhi Sessions Judge, handled the bail application and he was granted bail. Newspaper reports alleged some favour was done to Pandit by granting bail, due to his connections.

Justice DP Wadhwa, the then Delhi High Court judge who later became a Supreme Court judge, took suo motu cognizance of the matter. He called for all the records and reversed the order of bail and passed strictures against the judge too. Later on, this turned out to be a false and politically motivated case. The man was acquitted later. Justice Wadhwa did not specialise in criminal law matters, but income tax matters. Now a judge does not know ABC of criminal law, but takes suo motu of criminal law cases. Resultantly, the sessions judge was never elevated to the High Court.

PIL has also become a business where judges are involved and lawyers too. Many PILs are filed at the instance of judges. There was a case when Justice Kuldeep Singh of the Supreme Court got a PIL filed at his behest so that his period as a lawyer is also counted as a service period for the purposes of pension.

Regarding this migrant case in the Supreme Court, one needs to read Senior Advocate Dushyant Dave’s opinion about the Court’s handling of the migrant crisis just a day before suo motu cognizance was taken. Is the prestige of the Supreme Court dependent on an advocate’s opinion? Instead of Dave if this statement would have been made by a small-scale lawyer, then would the Court have listened?

There are lobbies in the Supreme Court who work for each other. This is also one of the major reasons why a single judicial reform has not taken place in the courts. Look at our dress, which is a symbol of the colonial legacy.

Justice PB Sawant, former Supreme Court Judge

When I was at the Supreme Court, information from any reliable source would be a source of information for the judge. If the judge thinks he needs to take cognizance in the interest of justice, then suo motu action needs to be taken. In such situations, a judge's conscience is the primary foundation but the matter also needs to be important in the frame of national interest, human interest or in the interest of a human right. Regarding the migrant crisis, I would indeed say that the Solicitor General travelled beyond his brief. He is not correct in his sweeping observations, which were unwarranted.

Justice PP Naolekar, former Supreme Court Judge and Lokayukta of Madhya Pradesh

There were so many times that by reading newspapers itself I took suo motu cognizance of matters. In my entire career, I have taken up four to five suo motu petitions. Out of those, two or three were solely out of newspaper reports. There are times when the matter is in the public domain, but no solutions were given. So suo motu allowed us to hear everyone and help us give solutions. But such matters need to have an impact on the general public, and not individuals.

When I was a judge in Madhya Pradesh, there was a dangerous system of sand mafia. I felt the establishment was hand in glove with them and hence I took it up. The first criteria for me taking suo motu cognizance was whether I could see the matter reach finality. If I was not in a position to look after a matter, then I refrained.

Just passing general orders is not proper. There are so many matters where directions are given but never followed. Executive needs to follow them. So even if the court gives directions, the Executive has to implement it, but the court should be in a position to monitor it. Else this will be like a politician’s promise.

Justice Gyan Sudha Misra, former Supreme Court Judge

Suo motu is not defined anywhere, but law keeps developing and when the need arises, judges need to act conscientiously. When I was in Rajasthan High Court, there was this case of supply of synthetic milk. After having seen newspaper reports and some TV programs regarding supply of spurious milk in Alwar, being part of a Division Bench, I took note of it. The collector was called upon first to check the correctness of the news and how it should be stopped. It did not conclude while I was there, but it took off. But if a just cause is being ignored, the court under its inherent jurisdiction can take note of it. But before taking up the cause, I had observed the matter for some time and took into account that the Executive had not acted in any way to stop this.

A judge can never be coaxed to take suo motu cognizance of a case. In every person, there is a judge and they have a sense of judgment. Thus they would be in a position to judge a cause. Plus in the Supreme Court, suo motu is not by a single judge, but multiple minds at work. It's not like judges don't have checks on themselves. However, there must be some judges who might be sensitive or orthodox in their approach, which at times has a bearing on how they handle cases.

In one other case, there was an order passed by the Ministry of Civil Aviation, where they exempted the Chief Minister from being frisked, but the Chief Justice of the High Court and judges were not exempted. In that case too I had taken suo motu cognizance.

While dealing with a rape case in 2014, I had issued guidelines which stated that the incident statement of the victim needed to be videographed. So though it was not a suo motu case, the guidelines become suo motu where the judge sees an opportunity to correct the system. However, not following the directions can never lead to contempt.

Suo motu cognizance needs to bring some change, and in this way, I am a radical and judges need to be radical. That is how law develops. Though that happens within the realm of checks and balances. When Justice SH Kapadia was there, a PIL was filed in the interest of manual scavengers. The plea was dismissed saying the government will look into it. I was shocked. This matter could have never been dismissed. If I could have been there, I could have shown what I could do.