Saving PIL from the Petitioner
On Monday the Supreme Court will hear a Public Interest Petition which challenges the suspension of Durga Shakti Nagpal, IAS by the Uttar Pradesh government. As some lawyers pointed out, this was a rather curious turn of events given that the Supreme Court has consistently refused intervention by PILs in service matters [for a restatement of law refer Hari BanshLal v. Sahodar Prasad Mahto]. What worried others was the PIL was filed by Manoharlal Sharma, a lawyer who many see as a gadfly at the Bar. This was not without reason, the synopsis of the petition did not point to a specific illegality within the writ jurisdiction in which it was filed. It pressed a ground of contempt in a writ petition and seemed to appeal to equity phrased in a nursery rhyme of questionable grammar.
At first this criticism may seem as an extension of legal formalism and nothing more. However greater concern exists which stems from the general perception at the bar that Manoharlal Sharma files PILs which are often frivolous or are not prosecuted with the necessary rigour. This is not corridor gossip or courtroom humour. Different courts of our country have stated as much in Orders which have attained finality.
This article does not cite these Orders in isolation but presents a wider view of the PILs filed by Manoharlal Sharma towards showing larger trend as to how PILs are increasingly being hijacked by serial petitioners weakening the jurisdiction of High Courts and the Supreme Court by the paper cuts of their petitions.
Manoharlal Sharma in the Supreme Court: 2007 to 2012
The statements about the principal protagonist in this article would qualify as scurrilous gossip if it was not for the study of the petitions filed and dismissed from 2007 till 2012 (the document is available for download below). Data in this regard has been compiled from the daily orders facility of the Supreme Court and then matched against news stories in which the petitioners name has appeared. News stories for the petitions are readily available as Manoharlal Sharma seems to have a flair for the theatrical than the black letter of the law.
The data set when aggregated shows that, a total of 33 PILs have been filed out of which 30 were dismissed at the preliminary stage. The other 3 pending PILs are tagged along with other petitions for which other petitioners have also approached court.
Dancing kabuki in a Court Room
Taken in isolation these figures do not seem shocking or completely out of place given that the Supreme Court my popular accounts dismisses 80/90 percent of the petitions which are filed by it. However, a deeper look at the data shows a regular egregious abuse of the legal process. Some key highlights which come across:
1. The Petitioner has a tendency to directly approach the Supreme Court and does not approach the High Courts, where the writ jurisdiction is wider. This is further confirmed by various orders, in which before first approaching bodies such as the Election Commission and the Company Law Board, the Petitioner has directly approached the Supreme Court.
2. The Petitioner has regularly filed petitions against public personalities and constitutional functionaries. Conventional PILs (as per the original mandate as under as in HussainaraKhatoon vs. Home Secretary, State of Bihar) which agitate rights of litigants who are unable to access courts have not been filed. The Petitions seem to pick up from news reports extending the writ jurisdiction of the court as an arbiter of public opinion and not public interest. For instance many petitions have been filed, “on the basis of news reports”, on which if the Supreme Court issues notice, the media cycle gets extended increasing the likelihood of publicity for the Petitioner.
3. The advocacy skills of the Petitioner are incredibly suspect given that Courts at multiple instances called petitions filed by him “lacking factual background”, “frivolous” and as per data even imposed costs on two occasions. Further on two instances atleast the Petitioner has withdrawn counter affidavits filed due to intemperate language used in the pleadings.
4. Most petitions do not point to specific illegalities and appeal to the equity of the court. Many petitions also call for factual inquiries to be ordered by the Court as opposed to presenting the facts which identify specific statutory or constitutional illegalities.
5. Finally, the Petitioner has adopted a first to file strategy. The first to file confers an advantage as the lead petitioner in the matter given that multiple people now regularly file PILs on the same subject and which are latter clubbed together by the court. Hence, if the case is determined it is done under the name of the main petitioner. Moreover a first filer also enjoys a more immediate access to media. However, due to this strategy a short time period is available for drafting and developing the petition. This may be one of the causes due to which such petitions being dismissed. This is not a case of fools rushing in where angels fear to tread, but to further borrow fromthe essay on criticism, a petitioner needs to drink deep, or the public does not taste the pierian spring.
The reduction of a Constitutional Court to a talk show
The above inferences show how media cycles rather than public interest lead to PILs being filed by Manoharlal Sharma. To be fair this criticism needs to be mitigated with two considerations. First, the dismissal of the Manoharlal Sharma PILs do not act as res judicata since most of them are in limine dismissals and not considered “law” under Article 141. Hence, they do not “formally” act as bars against subsequent PILs on the same subject matter. Second, Manoharlal Sharma does serve the limited utility of bringing these matters to court. There is a deep political angle to most of the petitions and professionally active lawyers may not want to risk offence or falling out of favour.
However as stated before these are nothing more than mitigating factors. Logistically the Manoharlal Sharma PILs cause wastage of court hours and expense and engagement of senior government counsel. On an institutional scale, they represent the TV Panel talk show culture where the levers of law are relaxed to the fashion of the day and judgements are delivered by SMS and Twitter polls. These can be in the nature of mild innuendos of scandal and impropriety which leads to a PIL. Due to the sensational nature of the petition, the media cycle further gets extended. This is not only when the Supreme Court issues notice but even when a mere PIL is filed. This is slowly skewering public expectations where the PIL is seeming as a pancea for any state malaise distorting and fundamentally altering our constitutional scheme.
Much ado about sand
For fans of John Mortimer, due to the frequent the call to equity, the fictional QC Claude Erskine-Brown may come to mind. In Rumpole of the Bailey, at first blush Claude seems as a fine barrister however on deeper examination his incompetence shows through. Even our dear Rumpole is forced to term Claude as a Portia who pleads equity to break Shylock’s bond. However, it would be unfair to call Manoharlal Sharma a Claude, for Portia on failing an appeal to equity reads down the letter of the Shylock’s bond to prevent blood from being spilt. The above data adequately demonstrates that the Manoharlal Sharma’s PILs start from a newspaper cutting and after appeals to conscience end with an order of dismissal.
Many are now thinking, well the ends justify the means. Given the strike rate of Manoharlal Sharma, the PIL filed for Durga Shakti Nagpal risks a order of dismissal. Though in limine, it may further embolden the sand mafia and the Uttar Pradesh Government. Durga Shakti Nagpal should have her day in Court but through a legal process and counsel of her choice. I hope that I am wrong and the Supreme Court intervenes in this case. However, in the stray possibility that the Petition is dismissed let it not be without costs. Heavy costs.
Apar Gupta is Partner at Advani and Co. You can follow Apar on Twitter here. Views expressed are personal of the author and does not reflect the views of Live Law.
The document can be best viewed when downloaded.