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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 hereViews expressed are personal of the author and does not reflect the views of Live Law.

The document can be best viewed when downloaded.

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  • n.rajaraman says:

    dear mr.gupta i have not seen you ,you seem to be elitist and have no idea of the struggle the citizens in this country have to get justice in big institutions like the supreme court,i doubt if you have practised probono publico all the great comments on MLSharma who is such a nice man with a heart who asks questions of relevance against the twitter class and the silent corrupt institutions is a means of taking on the unjust balance in favour of the persons in this countrywho have forgotten democratic duty,pls tell how many matters you have taken up for the public,how many you have won, even a single win is good as the question is raised and the sc as a institution for democracy and citizen’s has worked,there are 13,000 lawyers in sc how many take up a public cause and risk ignominy and insult by persons like you, there is injustice and there are persons like sharma who question it,augusta westland is investigated,vadhera proceedings will start, it so happened sharma took up cases against a government which uses institutions to hide their mistakes than use the same institutions to correct them,pls do some work instead of criticizing persons who represent the debates that happen at every chaishop and dinner talk and finally endup atdespair at the system,you name how many other persons have made so much questions on different aspects of polity and democracy and tell why such questions cannot be raised instead of burying yourself in technical and verbiose arguments,you have no idea of the real and sad state of a average indian citizen,the cattle class wondering how the twitter class get away with whatever they do,write some piece on that,Sharma is a true fighter you have no idea of fighters and have almost never botheed to have a talk or chat with him before you went ahead and wrote this phenomenal treatise,god bless you, a pained ordinary indian lawyer

  • Gopal Sankaranarayanan says:

    I applaud Apar for the detailed analysis done by him, and I don’t think it is wrong to criticise someone if they are causing harm to the institution. In fact, for long, the very problem has been the conspiracy of silence maintained by members of the Bar that they will not comment adversely on one of their own (in private and in coffee shops, sure -but in public and in writing, never). Thankfully, Shyam Divan showed us the way with his bold piece in the Hindu, reminding us of the time when Parrhesia (hat-tip to Santosh Krishnan) prevailed. For those who don’t know Mr.Sharma, while his rabble rousing may cause amusement, his methods are definitely questionable. Just this morning, he interrupted the mentioning of another PIL concerning Durga Nagpal because he did not want it listed with his petition. This unseemly conduct needs to be checked quickly, preferably through heavy costs. I fully support Apar.

  • Simon Z. Rajan says:

    On the contrary, I think you have made a very fair comment. In a country where pending cases weigh in at a staggering thirty million, the issue of frivolous litigation is a real and present danger.

    Back in the day when I used to dally in the corridors of the Calcutta High Court I recall a number of unscrupulous solicitors who would be on the lookout for young and unsuspecting counsel to present a PIL for the most ridiculous of reasons-the end result would inevitably be just a another number on the causelist.

    The words of Gore Vidal come to mind, ‘As one gets older, litigation replaces sex.’

  • Lawyer says:

    @Mr Gupta: I’ll leave the part of criticising someone to Media. I do not mean you do not have the right to write these things. You do. But I didn’t expect that a lawyer would actually do so publically. Even I have criticised him on occasions, but your way was unprecedented.

    Something makes me feel that even you are doing this for publicity. That puts you in the same category where you put Mr. Sharma. Think over it. Please do.

  • Apar says:

    Hi,

    Firstly thank you for your comments. I would have preferred that you had written under your real name so we could carry this discussion further. On the questions raised:

    a) A lawyer should not criticize another lawyer

    I believe nothing can be worse than a profession which staves of criticism internally and then occasionally bemoans the falling standards at the bar. Moreover, there is no novelty in my criticism since it emanates from court orders itself. In this unique case the comment on the lawyer-petitioner becomes inextricably linked to the PILs filed inasmuch it is linked to his conduct and competence. Since these are not private cases but PILs, public interest is involved. Even take the larger question of how such “frivolous” PILs build cynicism in the Bench and bring disrepute to social action lawyering.

    b) Coal Scam Issue

    The Coal Scam PIL has been filed first by ML Sharma is tagged along with several other PILs. It is given in the table WP(Crl) 20/2012. Going by the other court orders, I am inclined to even believe these other petitioners are carrying Mr. Sharma’s petition through.

    c) Each case is different, only merits are examined lawyers are not

    In the beginning you make a fair point but I would like to add for the merits to be examined the case has to be brought forward to the court. This is not a lawyer but a lawyer-petitioner. Clearly he has failed to do so adequately over a period of time. On the comments directed towards me, some advice, the best way to defend your point is to point deficiencies in the data set, which goes to throwing doubt on the entire article itself. Just a tip.

    d) Face value

    Yes, the identity of the petitioner, his credibility and link to the cause are important factors in PILs. The concept of locus standi though relaxed in such litigation is still present. For instance one recent petition filed and argued by ML Sharma was dismissed on the lack of locus. This article is about a lawyer-petitioner and not a lawyer in isolation.

    I look forward to any further comments. Please do not hesitate to contact me or carry this discussion forward.

  • Amit Bajaj says:

    1. You admit that Mr. Sharma raises host of issues through PIL and thus has a name for the same. The very fact that he has a name for filing PIL does mean that at least by filing the PIL he further brings the issue in limelight.

    2.In case he is so inefficient as he seems to be made by your article, there is no stopping you or any other who feels like you to move independently or intervene and put forth the issue in the right perspective.

    The Court is also not handicapped and can always seek help of amicus curie in case it finds the issue to be of importance as is routinely done.

    • Apar says:

      Fair points, however I will add my perspective to it.

      a) He often does not bring a matter to the limelight, from what it seems he picks from existing news reports. The limited utility is to bring it to court and not to public attention (since it has already been reported on). Further, by bringing such matters to the attention to the court, he has often wasted court hours and also damaged the supreme court institutionally by making frivolous petitions which have received substantial press coverage. This has skewered public expectations of the proper role of the Supreme Court and even PILs.

      b) Yes, there is no stopping any third party from filing a intervention or even a subsequent writ. However, technically most of his PILs are dismissed on the first date of hearing hence an opportunity to do so will not arise. Secondly any subsequent writ on dismissal can be filed (since the in limine dismissal does not act as res judicata), however that dismissal order has other consequences as stated in the article specifically referring to Durga Shakti Nagpals case. Moreover, a dismissal order (even if in limine) makes the task of subsequent petitioners tougher.

      c) The practice of appointing an amicus in PIL’s arises most often after notice is issued in a petition, the initial burden is on the petitioner. Secondly the practice of appointing an amicus is not as standard or regular as you have indicated.

      Thank you for your comments.

  • Advocate says:

    Also, Do you mean to say that had these petitions been filed by someone having better face value than ML Sharma the results would have been different.

    Are you also suggesting that the Court while deciding a case is swayed by an advocate rather than by the merits of the case?

  • Anonymouse says:

    The coal scam PIL WP(Crl) 20/2012 has been clearly marked in the table. Download it.

  • Advocate says:

    Mr. Gupta,

    A grossly unjust value judgement of the petitioner. Your verbal somersaults while sparing no effort in criticizing the petitioner show complete ignorance of the fact that in any matter before the Bench, it is the merits which are to be appreciated. Kindly re-read your law.

    You seem to be slightly jealous of all the attention that Mr. M L Sharma has been gaining lately.

  • Delhi Lawyer says:

    Mr. Sharma may have been filing too many PILs. Even if they were half researched or bad, nothing gives Mr. Gupta any rights to make such a big comment on him. Its rare that lawyers take dig at fellow lawyers in this manner.

    And when it came to Coal Scam issue, Mr. Gupta write s “Further details not available”. Come on! Who is not aware of the ongoing proceedings.

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