M J Antony: Reluctant respondents

PILs drag on owing to government's non-cooperation and apathy

An unsung aspect of the recent 2G spectrum judgments is the speed with which the Supreme Court decided the public interest litigation (PIL); it was all over in just over a year. In contrast, there are PILs pending in the court since 1982, like that of Bandhua Mukti Morcha dealing with bonded labour.

There is no prize for guessing who the main villain of this piece is. The reluctance of the respective governments to comply with the orders of the court, even after considerable pressure, is the prime reason these cases are lingering for decades. The inventory of wily excuses to delay proceedings and implementation of orders is long, tedious and repetitive. One is reminded of the famous taunt of the seventh US President, Andrew Jackson: “Chief Justice John Marshall has made his decision; now let him enforce it.”

This attitude was amply clear in two important orders passed in the last fortnight. One was about the implementation of orders on high security number plates on motor vehicles to prevent terrorists from using them (M S Bitta vs Union of India). The other was in the case, National Campaign Committee for Construction Labour vs Union of India), dealing with the welfare of construction workers. These are only illustrative and not exhaustive examples. There are scores of similar cases more than 10 years old, some of which have been listed for hearing more than a 100 times.

Bitta, a victim of a terrorist bomb-attack, moved the court in 2005 and it has long ago asked states to introduce sensitive number plates. However, till today, the orders are not implemented. The court has now directed the Centre, states and Union Territories to fix high security number plates in all new vehicles latest by April 30. It also directed that in old vehicles these number plates must be issued by June 15.

However, considering the hide-and-seek played by governments, one is bound to be sceptic about the outcome. Big corporate players, including foreign participants, are involved in the tender process and one round of their litigation concluded a few years ago. Since then, an exasperated court has been passing orders threatening to call chief secretaries, initiating contempt proceedings and setting deadlines.

A reading of one of the typical orders, passed in December last, would make clear the prevailing attitude of governments: “Despite the orders, majority of the states have not fully implemented the scheme regulating issuance and fixation of High Security Registration Plates (HSRP). From the affidavits filed on behalf of the respective states, it is clear that they have not been vigilant enough to take appropriate steps for initiation and completion of the HSRP scheme and, in any case, not with required expeditiousness. On 25th November, 2011, we heard the learned counsel appearing for different states and perused the affidavits placed on record. However, some of the states have not even been courteous enough to file affidavits of compliance and have orally prayed for extension of time. In these circumstances, it has become necessary for us to deal individually with the case of each state.”

A collection of the orders passed over years would constitute a primer for junior counsel in government team on how to bypass court orders. A supplementary guidebook on dilatory stratagem is the latest order in the construction workers’ case. Having reached the contempt-of-court stage for defiance of the orders, it recounted its earlier orders passed last year.

“In view of the persistent defaults and unacceptable conduct of officers of the concerned states,” the court passed certain orders in November last year. According to that order, “almost every state is in contempt, and so we have no option but to take further steps in the matter.” So it gave a last opportunity to the states to take action on pain of contempt proceedings. Still, a few states neither filed affidavits nor have they placed on record any documentation to demonstrate that they have fully complied with the directions and discharged their statutory obligations under the Building & Other Construction Workers (Regulations of Employment & Conditions of Service) Act and rules.

Big states like Andhra Pradesh, Tamil Nadu, Punjab and Chhattisgarh have been indicted for various lapses. Welfare boards are not in place and cess has not been collected or disbursed.

Suspecting something sinister, the court noted that no audit has been done on the cess collected though “large funds are lying with the authorities, and not disbursed. The possibility of these amounts being diverted for other heads of expenditure cannot be ruled out”.

Orders in other long-standing PILs are similar. The court has been trying to provide night shelters in winters, water in primary schools, distribution of food through public outlets, funds for infrastructure for subordinate courts, police reforms, and several other vital subjects. They are all stuck in forensic mud.