I.   The Confines of ‘Case and Controversy’ Doctrine :

              (i)  The awareness of individuals, organizations, authorities and international communities about the plight of the socially and economically underprivileged classes in getting access to justice has heightened to candid considerations of the underlying issues at various national and international colloquia. Information and experiences have been exchanged among Judges on how to enhance access to justice in the national courts. In a vibrant democracy where concept of life and liberty has flowered in binding judicial pronouncements and vitality is injected in the directive principles for the amelioration of the socially and economically disadvantaged groups of the community, a time has come to extend the benefits of the noble thoughts to the silent sufferers who are groping for the door for an access to justice. Should the judicial system that has evolved majestically in cultured societies, where the authority of Courts is accepted as a necessary concomitant of a just and egalitarian social order, be content by getting tied down by an archaic. ‘case and controversy’ theory beyond which jurisdictional wall, the judges cannot see, nay, it is not their concern, or has the time come to detect the seekers of justice who are atrophied by their social and economic adversities and to lend them a helping hand for realization of their entitlements.

              (ii)  The judges by nature are loathe to cross the lines that they have drawn for restraining their judicial activities. The area of their operation embraces almost all human activities and there is no better institution that can have a more comprehensive idea of human sufferings , human frailties, their causes and consequences, than the Courts. Yet, it is not much concerned with the wrongs and sufferings before they are brought to its notice nor is there any monitoring mechanism to find out the results of its decisions and directions in order to know whether the grievances that it sought to remedy are really redressed. The confines of ‘case and controversy’ doctrine make them wake up on the ringing of the bell and having done wise thinking for solving the case and announcing its decision, to shut the door on it.

II.   The APATHY :

              (i)  Memory of an incident that occurred more than two decades back has triggered this article. By the side of a busy city road was sitting a middle aged person unclad both in clothes and senses obviously in need of social as well as economic help. It was a pathetic scene of an immobilized and insensitive social order that left that person by the road side gesticulating without intelligence, in the company of flies and stray animals, days after days with no help from any social organization nor from a nearby police station. A few days of passing by the same site created a sense of guilt of comfortable existence and verbal attempts were started by requesting the good Samaritans, the press, and those who ought to have mattered, to take care, to help, to do something for saving the society and the system from further disgrace. It took several months for a sitting City Judge to unofficially activate the authorities into action and get the person shifted to a home for the mentally sick. The reports were that he was a victim of a vehicular accident and his children remained abroad. After the treatment, he perhaps recovered. Time has faded the details, but one thing comes prominent and that is, should not the Courts have a more active role to play to help the underprivileged who are social discards and have no economic strength. One has just to move around to see how many mentally sick persons lie oblivious of their own existence on the roads, with tattered or no clothes. By a very little effort it would be easy to detect abject poverty in the children searching for left-overs in public places aimlessly wandering under the banners proclaiming child protection programmes, and the rag pickers unaware of the health hazards of searching through the garbages with bare hands and feet. There, indeed, are laws to manage all such situations, there are authorities who are entrusted functions to safeguard the interests of the vulnerable sections of the society, there too are policies and programmes that aim high and of course the NGO’s, financial resources and so on. The Courts, however, will know about injustice only when alerted by the meek approach of the sufferer, if at all he succeeds in knocking at the door for justice, or, through a good Samaritan who out of empathy brings the misery to the Courts’ notice.

III.   Arming the District and Subordinate Courts :

              (i)  Entertaining public interest litigation is the privilege of the superior courts. Taking suo motu cognizance of the wrongs that come to notice through press or other media reports also falls in the domain of the exercise of high prerogative writ powers depending, of course, upon the extent to which the individual judges are stirred . There is, however, a total lack of power to take suo motu cognizance of wrongs done to the socially and economically handicapped persons in the courts at the District and other grass root levels. Providing legal aid to the needy is an important step, but, that again happens when the authority is approached and the Court will know about the case only when the information reaches it in the form of pleadings.

              (ii)  When the constitutional goal of a democratic setup is justice, social, economic and political, no procedural hinderances can come in the way of meting out justice to the needy. The authority of the Courts to detect instances of injustice amongst the vulnerable sections of the community is embedded in the very purpose of its existence and traditional norms need not keep them away from gathering information within their jurisdictions about the violations of rights of those who are not in a position to voice their grievances effectively. The mechanism of court functioning is elaborate and alongside its judicial work, within the administrative wings of the court, can be devised methods of regular and systematic gathering of information about the violations of the rights of the socially and economically underprivileged classes of citizens within its territorial limits. The Courts do need to think about those who need justice most and guide them to the course of justice.

IV.   Setting up Cells in Courts for Detecting Injustice – Justification :

              (i)  For properly identifying the instances of injustice that merit courts’ active intervention it would be necessary to classify the cases into two main categories: (i) the violations of rights resulting from the breach of duty by the officers/authorities entrusted with the duties to safeguard the interests of the socially and economically underprivileged classes or the denials of the benefits to which they are legally entitled by virtue of statutory and policy announcements, (ii) violations of rights of the underprivileged persons committed by individuals or organizations who owe duties under the law towards them or have caused their injurious exploitation or other wrongs to them. It would require a specialized effort to work out the list of duties of the public officials and authorities under various laws and policies which affect the socially and economically underprivileged. However, we may refer to some aspects to highlight how the courts can be more effective in improving the justice delivery system in this context.

              (ii)  Under Section 78 of the Mental Health Act, 1987, the cost of maintenance of a mentally ill person detained as an in-patient in a psychiatric hospital or a psychiatric nursing home is to be borne by the State-Government in which the order in relation to such person is passed, if undertaking to bear the cost of maintenance is not taken nor is there any estate from which it can be secured. The provision obviously entitles a poor person who is mentally ill with no one to look after him to be taken care of in such hospital or nursing home. Despite this, a number of such persons are regularly found in big cities on roads, because, their families have discarded them and there are no adequate means to attempt their cure. How do you expect a person totally insane to approach the court for his rights that he does not know, for, he may not know even his name. How many of us will stand by him to inquire and help? When no public acclaim will be forthcoming, how many organizations, whose members pass by the same road and ignore the obvious, will throw shelter around such person? A small cell within the court administration can easily go into action, detect such persons and secure justice for them by placing the matters for judicial consideration and orders against the authorities concerned who have failed in their statutory duties. Section 23 of the Mental Health Act, 1987 which expects every Officer in charge of a Police Station to take any person found wandering at large within the limits of his station whom he has reason to believe to be so mentally ill as to be incapable of taking care of himself or whom he has reason to believe to be dangerous by reason of mental illness in protective custody. The Police Officer who ignores such person fails in discharge of his duty and a mandamus can issue on him by the High Court if by some mechanism the matter is brought to its notice. Why not then, an administrative cell of the subordinate court having jurisdiction in the matter be empowered to gather details and place the matter before that court highlighting the failure of statutory duty and let justice underlying the statutory provisions reach the needy.

              (iii)  The debt relief laws seek to relieve the burden of a category of debtors who by reason of their poverty deserve assistance. The unfortunate plight of that section of the people who, placed socially and economically at a disadvantage, land themselves in debt-trap, is well known for ages. The legislatures by enacting laws for providing relief to a group of persons belonging to weaker sections of the society act as per constitutional and international norms, because, extreme poverty is a denial of all human rights. Within the framework of the United Nations Decade for the Eradication of Poverty (1997-2006), the General Assembly has set itself two distinct goals : to eradicate absolute poverty and to reduce substantially overall poverty in the world (Resolution 53/198). Extreme poverty implies a total lack of resources and means of social integration. The extremely poor cannot express themselves or play any role in their communities. They cannot even approach the Court due to lack of knowledge and funds. Extreme poverty is the biggest obstacle to justice. In the context of the rights of the poorest of the poor, whose miseries in some cases may be compounded by other handicaps, the Courts’ duty increases multifold. It is only through its own administrative sensors that the Court can detect persons suffocating under debt-traps and the like, not daring to question their burdens and woes not even thinking about their rights, for fear of reprisals by their creditors or other exploiters and the officials failing in their duties. After all, Portias defend only in plays, but in real life the timidity of an underprivileged victim prevents him from questioning the tyranny.

              (iv)  Social backwardness, in its ultimate analysis, is the result of poverty to a very large extent. The Supreme Court of India in Indra Sawhney v. Union of India 1997 Supp(3) SCC 217, has observed that poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation policy, but by free medical aid, free elementary education, scholarships of higher education and other financial support, free housing, self-employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of law enforcing machinery, free water supply and other ameliorative measures particularly in the areas densely populated by backward classes of citizens. Welfare legislation enacted for the benefit of the weaker sections of the people, must be implemented in proper spirit for achieving the noble object for which such law is made. This is why the Supreme Court in Neeraja Chaudhary v. State of M.P. (1984)3 SCC 243, held that failure of action on the part of the State Government in implementing the provisions of the Bonded Labour System (Abolition) Act, 1976, enacted with a view to ensuring basic human dignity to the bonded labourers, would be in violation of the fundamental right to life guaranteed by Article 21 of the Constitution of India. A fear was expressed that the freed labourer, unless effectively rehabilitated, will have to slide back into bondage again, to keep his body and soul together. Justice A.N.Sen in his supplementing judgement observed that it becomes the duty of the court to see to it that the legislative provisions regarding their rehabilitation are properly implemented. It is submitted that rather than placing sole reliance on the vigilance committees appointed for the purpose if the courts own administrative mechanism is evolved to find out the violations of the beneficial laws that impinge upon the rights of the weaker sections who are meant to be benefitted, the effectiveness of the judicial system will dramatically increase and the stream of justice will reach where it is needed most. The Court should have an anxiety to know whether the welfare laws are followed and benefits reach the poor and the needy within its territorial jurisdiction and it need not wait till it is formally addressed and can administratively gather the instances of injustice and deal with them judicially.

              (v)  Children below 14 years of age cannot be employed in any factory or mine or other hazardous work and they must get their basic education to enable their personality to blossom. Child Labour (Prohibition and Regulation) Act, 1986 is, however observed more in its breach than by adherence. In M.C.Mehta (Child Labour Matter) v. State of Tamil Nadu(1996) 6 SCC 756, the Supreme Court noted that child labour was an all-India evil and without a concerted effort, the ignominy would not get wiped out. The poverty is the basic reason which compels a child to be a labourer. Though employment of a child in contravention of Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986 is an offence punishable with minimum imprisonment of three months which may extend to one year, only a fraction of the violations are brought before the Court. The employment of children in violation of their constitutional and statutory rights can be quickly detected by an independent court agency and the culprits be brought to book for bringing relief to the sufferers.

              (vi)  Beneficial and sympathetic policy in regard to the slum dwellers is reflected in the slum areas improvement and clearance laws and schemes of the States. Steps are required to be taken for the purpose of improving the slums and for providing alternative accommodation to the slum dwellers wherever they cannot be improved. The Supreme Court in K.Chandru v. State of Tamil Nadu reported in AIR 1986 SC 204, while being satisfied that the government was taking steps for improving slums and for providing alternative accommodations, reminded the government of the motto of slum clearance proclaimed in the collectors report: “God revealeth in the smile of the poor,” adding – “Let the poor smile for a while”. The right to residence and settlement is a fundamental right under Article 19(1)(e) and is considered to be an inseparable and meaningful facet of right to life under Article 21 (P.G.Gupta v. State of Gujarat 1995 Supp(2) SCC 182). The solidarity of political freedom hinges upon the socio-economic freedom. Everyone has a right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care, as proclaimed in Article 25 of the Universal Declaration of Human Rights. In Chameli Singh v. State of U.P (1996) 2 SCC 549 it was held that right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter includes adequate living place, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to provide an easy access to daily avocations. To bring the Dalits and Tribes in to the mainstream of national life, providing of these facilites and opportunities to them was held to be the duty of the State as fundamental to their basic human and constitutional rights. In J.P. Ravidas v. Navyuvak Harijan Uttharpan Industrial Co-operative Society (1996) 9 SCC 300, the bye-laws of the society provided that 80 percent of its members should be dalits. When two acres of the land was allotted by the Government of India to the Society for construction of a housing colony for its members at a concessional rate and non-dalits in excess of the percentage of 20% prescribed for them in the bye-laws were being inducted, the Supreme Court held that benefit of economic empowerment having been given to these members, neither the President of the Society nor the builder had any right to induct non-dalits in excess of the prescribed percentage meant for them and such enrolment of non-dalits defeated the purpose of the Government of India behind giving the land for construction of houses by dalits. Court’s watchful eye can effectively detect such lapses to deal with them.

              (vii)  Trends in human population movements due to industrialization , lack of protection in work place and passions whipped up by the political or religious leaders can result in domestic violence which has to be guarded against by regulation of public health, housing, employment, education, adequate security and above all access to justice. The underprivileged are the worst sufferers in such situations. The fact that Court can take innovative steps to speed up rehabilitation of the poor persons displaced due to natural calamity of a devastating earthquake that erased almost all buildings to ground in many towns and villages of Kachchh is evident from a recent decision of the High Court of Gujarat in which the Court holding that the donations and contributions in cash and kind received for helping the earthquake victims were held in trust by the Government and that the funds were to be subject to periodic audit to ensure proper utilization, ordered the District Judge cum District Chairman of Legal Services Authority to act as Ombudsman in the work of distribution of relief materials in cash and kind to the quake victims and to redress their grievances and ensure that the citizens were not maltreated. (see Bipinchandra J. Divan & ors. v. State of Gujarat & ors., 2001 (2) GLR 1395)

V.   Need to be Vigilant against Tortuous Denial of Benefits :

              (i)  There is, therefore, a need for the vigilance of the Courts to ensure that the benefits of the policies and laws aimed at the amelioration of the lot of the masses reach those for whose benefit they are meant. When the beneficiaries are identified and their entitlements earmarked, justice demands that full benefits reach them, and the erring officials and unscrupulous elements do not appropriate or divert any of the resources towards their own designs. When duties are cast upon the public officials to implement the policies aimed at the upliftment of the socially and economically underprivileged classes, deliberate or negligent omission to perform such duties would amount to a tort of non-feasance, and, where public power is exercised for an improper purpose or the public officer acts with a state of mind of reckless indifference to the illegality of his act he commits the tort of misfeasance. The misfeasance consists in the purported exercise of power otherwise than in an honest attempt to perform the relevant duty. It is the lack of honesty which makes the act an abuse of power. The rationale of this tort of misfeasance in public officer is that, in a legal system based on rule of law, executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes. Misfeasance is now recognized as imputable to an arbitrary discharge of duty. Apart from the tort of negligence (which is, the failure to exercise reasonable and prudent care in relation to a situation) the public official would commit tort of misfeasance in public office when acting in reckless indifference as to the outcome of his act which he has no power to do, tort of nonfeasance in public office on failure to perform specific acts that are the required duties of the Officer, and general tort or breach of statutory duty where he commits breach of a particular statutory duty such as the duty to provide the benefits of the policy or the statute to those for whom they are meant.

              (ii)  The public authorities guilty of the tort of misfeasance or non-feasance in public office or the general tort of the breach of statutory duty would be liable to action for damages for such acts if the victims of such wrongs were to claim damages in respect thereof for consequential economic loss by establishing that the public official acted with the knowledge that his act would probably injure the claimant. Since the defence of sovereign impunity is alien and inapplicable to the concept of guarantee of fundamental rights, the remedies can be provided in the local courts of the area in which such wrongs are committed. The alertness of the courts in taking cognizance of the failures of public officers that result in denial of legitimate benefits of the provisions and policies to the downtrodden sections of the community can go a long way to providing justice to them.

VII.   Conclusion

                The traditional ways that have not effectively protected the interests of the underprivileged have to be mended. A more active administrative outlook of the Courts aimed at securing justice to those who are not able to raise their head and assert for their rights is certainly within the domain of the Courts’ power coupled with duty, to do justice. It should be purely a procedural affair for the Courts to detect injustice through its registry in the area of its jurisdiction and take up the deserving cases for its judicial consideration to provide the socially and economically underprivileged persons access to justice. It would be neither seeking work nor deviating from its normal duties if the goal of having the present elaborate judicial system is to be achieved. A clear direction in the procedural rules and manuals handed down by the law and the superior Courts authorizing the subordinate Courts to find out through its administrative set- ups the instances of gross injustice to the socially and economically under-privileged persons who have no knowledge or means to seek redressal and enabling their cases that fall within its jurisdiction by legal and procedural help, to be judicially considered by the Court may turn out to be a sure and effective promise for an access to justice raising the efficacy of the legal system of the country. The criminal justice system is already assisted by investigating agencies to detect and investigate the offences. In the civil justice system, where safeguarding the rights of citizens is essential and the bulk of the Courts’ work centers around protection of the individuals from wrongs and enabling them to get their dues, a small beginning can be made by setting up a cell attached to the Court or separate but subject to its control, for detecting injustice within its area, in form of violations of the rights of the underprivileged and for detecting whether the statutory and policy benefits meant for their upliftment reach them or not. The instinct of conventionality need not hold us back.

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