A.K. Balakrishnan Nair v. The Chief Secretary to the Government of Kerala and Secretary to Government, Motor Vehicles Department, Trivandum

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 WP(C).No. 2329 of 2018 ## PETITIONER A.K.BALAKRISHNAN NAIR NELLULI VILLA P.O. EDAKKULAM, QUILANDY, KERALA PIN- 673 306 BY ADV.A.K.BALAKRISHNAN NAIR (PARTY IN PERSON) ## RESPONDENTS: 1. THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA SECRETARIAT, TRIVANDRUM 2. SECRETARY TO GOVERNMENT MOTOR VEHICLES DEPARTMENT, TRIVANDRUM R BY GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.** ## **ANTONY DOMINIC, Ag.C.J. & DAMA SESHADRI NAIDU, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C)No.2329 of 2018** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of February 2018** ## **JUDGMENT** ## _**Dama Seshadri Naidu, J.**_ ## **Introduction:** People buy cars, not much of a concern. Some of them buy cars in other states, still not much of a concern. But they register the vehicles in those states only to be used in this State. That is the concern, at least for the State. So the State mistrusts this practice and brings in legislation to curb it. A nonagenarian cries foul. Pro bono publico, he wants to champion the cause of this affluent assortment of people. They suffer no disability to come to the court on their own, though. Can this crusading spirit be countenanced? ## **Facts:** 2. We will go into the details. Some people, presumably affluent, buy cars at a place like Pondicherry, a Union Territory; W.P.(C)No.2329 of 2018 : 2 : they also register the vehicles there, showing some residential address—genuine or otherwise—for an ostensible reason: less motor vehicle tax. But they bring the vehicles to Kerala to be used. The Government of Kerala has a legislative recourse to curb that practice. 3. We are not going into the merits of that practice or its justifiability. Though the cars are purchased by affluent people, by spending lakhs or even crores, they have not come before this court to ventilate their grievance. Instead, petitioner A. K. Balakrishnan Nair, aged 89 years, has. He claims to have been driven by “enthusiasm to serve afflicted people”. He asserts that those who had purchased and registered cars outside Kerala, their _bona fides_ notwithstanding, have been hounded and harassed by the authorities. ## **Petitioner’s Justification and Court’s Observation:** 4. Balakrishnan Nair gathered the information from the press that “a cinema actor and member of Parliament who bought W.P.(C)No.2329 of 2018 : 3 : a luxury car at Pondicherry has been charged by the Crime Branch for evasion of tax. There are as many as 1500 similar cases in which an equal number of people will be facing the music.” According to him, the crises faced by these 1500 families is “a general issue” and, in fact, “concerns the welfare of a large number of people in the country.” 5. Before we proceed further, we may marvel at Nair’s arithmetic assertion: the putative problem of 1500 families concerns the welfare of 120,00,00,000 people. And it is the general issue affecting all. 6. The state’s action, alleges Nair, is causing “grave injustice of incomparable severity to a large number of distinguished individuals.” He declares “the IPC does not contain any offence called evasion of tax.” Making mincemeat of a metaphor, Nair takes to rhetoric: He likens the situation to a petrol pump owner’s finding fault with a nearby resident not buying fuel from his outlet and harassing him on that count. At best, it is a strained W.P.(C)No.2329 of 2018 : 4 : metaphor misapplied, trivializing the federal taxation principles. Nothing more. 7. So is Nair’s pleading that buying things in Pondicherry is not a crime. Again adopting an analogy, he asserts there is no ban on a Keralite’s buying a house at Delhi. What the purchaser does is, find a suitable house, pay the price, and also remit the tax prevailing in Delhi. The question of “Kerala making a gain out of the transaction,” Nair concludes, does not arise at all. 8. We will address this out-of-place analogy, too. If a Keralite buys a house in Delhi, pays the tax in Delhi, and lives in that house in Delhi, nobody perceives a problem—even legally. But if he buys the house and pays tax in Delhi, yet tries to move it over to Kerala to live in it, it is, first, an impossibility and, second, borders on imbecility. If it were possible, it would be plain illegality. 9. Besides, if an item of commerce falls within the State List, the State will enjoy legislative legitimacy to regulate or restrict transactions affecting that item of property. Nair proclaims that W.P.(C)No.2329 of 2018 : 5 : “the whole of India is one country with a uniform civil code.” This proclamation has two limbs: the first is a fact and the second is a desirable dream. India is one, no doubt; but it is federal, its components sharing with it powers—political and fiscal. 10. To sum up, Nair wants this so-called nefarious practice of statutory abuse and harassment of innocent car purchasers to stop. For that, he seeks a judicial directive. If he succeeds in his attempt, it will give him “incomparable joy and satisfaction”. He would consider it “a divine social service”. 11. We appreciate the zeal of A. K. Balakrishnan Nair, an almost nonagenarian, but we fail to share it. On the contrary, we hold that his zeal is misplaced. ## **Public Interest Litigation-Its Parameters:** 12. A Public Interest Litigation is a petition that an individual or a non-government organisation or citizen groups can file in the court seeking justice on an issue having a larger public interest. It aims at giving common people access to the W.P.(C)No.2329 of 2018 : 6 : judiciary to obtain legal redress for a greater cause. Public Interest Litigation is the outcome of judicial innovation to take cognizance of a cause at the instance of any person even if it does not affect him personally, but affects the public at large. 13. The jurisprudential justification for PILs stood explained in many judgments. A case in point is People's Union for Democratic Rights v. Union of India, (Asiad Workers Case)[1] . Justice P. N. Bhagawati, as his Lordship then was, eloquently emphasizes that public interest litigation is brought before the court not to enforce the right of one individual against another, as happens with ordinary litigation. It is, in fact, intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of many people who are poor, ignorant, or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would destroy the rule of law which forms one of the essential elements of public 1 (1982) 3 SCC 235 W.P.(C)No.2329 of 2018 : 7 : interest in any democratic form of Government. 14. The rule of law does not mean that the law’s protection must be available only to a fortunate few. The poor too, the Supreme Court reminds, have civil and political rights, and the rule of law is meant for them also. ## **Suitor’s Standing:** 15. The traditional rule of standing which confines access to the judicial process only to those who suffered a legal injury or legal wrong has now been jettisoned. And the narrow confines within which the rule of standing was imprisoned for long years, given our inheriting the Anglo-Saxon system of jurisprudence, too, have been broken; and a new dimension has been given to the doctrine of _locus standi_ . This approach has revolutionized the whole concept of access to justice in a way not known before to the western system of jurisprudence. So observes the Supreme Court in Asiad Workers Case. W.P.(C)No.2329 of 2018 : 8 : 16. The Supreme Court has emphasized, as the need of hour, this liberal—some call activistic—approach: It has paid heed to the peculiar socio-economic conditions prevailing in our country, where there is considerable poverty, illiteracy, and ignorance, obstructing and impeding accessibility to the judicial process. Any restrictive, doctrinaire approach, the Court has felt, would close the doors of justice to the poor and deprive sections of the community. 17. S.P. Gupta v. Union of India, (Judges’ Transfer Case)[1] , a precursor to Asiad Workers Case, a seven-Judge Bench, spoke at length about the limiting doctrine of standing. It acknowledges the need to carve out an exception to the strict rule of standing. And S. P. Gupta eloquently stresses, but with a caveat, on a suitor’s standing. Para 17 of the judgment holds thus: 17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in 1 1981 Supp SCC 87 W.P.(C)No.2329 of 2018 : 9 : contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.” 18. S. P. Gupta exhorts that the Constitutional Courts must innovate methods and devise strategies for providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. Indeed, so exalted is the understanding behind the liberalized principle of standing. With an eye to the exploitative potential of this permissive provision, S. P. Gupta cautions in the same paragraph: But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting _bona fide_ with a view to vindicating the cause W.P.(C)No.2329 of 2018 : 10 : of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in court. ## **Supreme Court’s Guidelines:** 19. In this context, we also refer to State of Uttaranchal v. Balwant Singh Chaufal[1] , a judgment of enormous erudition and relevance. After scanning the jural bounds of PIL in all comparable common-law jurisdictions, the Supreme Court, Per Dalveer Bhandari J, has issued these directions to “preserve the purity and sanctity of the PIL”: (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 Courts who have not 1 (2010) 3 SCC 402 W.P.(C)No.2329 of 2018 : 11 : 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 PIL. (4) The Courts should be _prima facie_ satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts 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 Courts 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. W.P.(C)No.2329 of 2018 : 12 : ## **Conclusion:** 20. To conclude, we observe that PIL is a judicial weapon of formidable force; it has its place and purpose in the adjudicatory armoury. But it should not degenerate, nor should it be reduced, to a farce. 21. Here, we hold that neither the petitioner has the locus nor the case raised by him affects the people at large, to be called an issue in public interest. To conclude, we find no merit in the writ petition and so dismiss it. Costs we refrain from, not to dampen the spirit and enthusiasm of this nonagenarian who considered it his “divine social service” to bring up this public interest litigation. _Sd/-_ **ANTONY DOMINIC CHIEF JUSTICE** _Sd/-_ **DAMA SESHADRI NAIDU JUDGE** _jes_