SIDDHA RAJ DHADDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In this public interest litigation relating to functioning of the S.M.S.Hospital Jaipur and other government hospitals in Rajasthan, more so, in respect of various commissions and omissions by various functionaries therein, the petitioner, who is a freedom fighter and has been active in and has very long association with the Sarvodaya Movement and claims to believe in the Philosophy of Mahatma Gandhi, the father of the Nation, seeks from this court direction that a Commission of Inquiry under the provisions of Commissions of Inquiry Act, 1952 (for short the Act), be set up by the State of Rajasthan to find out and identify the guilty persons responsible for the various incidents of deaths and other sufferings. We will at the latter stage of this order deal with the question as to whether this Court can order the State Government to set up a Commission of Inquiries under the provisions of the Act, but for the present we will give few facts as alleged in this writ petition, though we may state that in a public interest litigation the strict law that the court should confine to the pleadings is not practicable as it is not expected that in such matters the petitioner can be and should be in possession of all the material facts on which relief is sought and can be granted. The court in such matters of public interest litigation if the matter is really of public importance can even act on the newspapers clippings. In the case of Rakesh Chand Narain v. State of Bihar, 1986 (Supp) SCC 576, the court took up the matter on the report published in the newspaper pointing sub-standards conditions existing in Ranchi Mental Hospital and the court issued directions for provisions of various amentities to the patients and for periodical visit of Chief Judicial Magistrate to the hospital and to submit report to the Court. The arguments of Mr. Calla, learned counsel for the non-petitioner that news in papers at best are secondary evidence and therefore they cannot form the basis even in public interest litigations in the matters of public places like the hospitals run by the State Government cannot be accepted and so far as the case of Manmohan Kalia v. Shri Yash, AIR 1984 SC 1161 is concerned. It was not a case of public interest litigation and was the case under the Representation of the People Act. The court said that it is very difficult for the court to rely on the news items published on the information given by correspondents because they may not represent the true state of affairs. A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand secondary evidence. The Court further said that it is well konwn that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. We are of the opinion that whatever was said in that case is in respect of an adversery system of litigation but so far as public interest litigation is concerned, we will say with all emphasis at our command that the present is a public interest litigation and litigation is not based on adversary system, but the petitioner brings certain facts to the notice of the court. The petitioner and the state are to assist the court in arriving at a conclusion and if possible to take remedial action and grant relief to public at large and td ameliorate their conditions. In the case of Dr. P. Nalla Thampy Thera v. Union of India, AIR 1984 SC 74, the court was dealing with matter under Act. 32 of the Constitution of India and the writ petition was filed under the aforesaid provisions seeking directions to the Union of India and its instrumentalities to improve the service conditions. The court in para 9 said :-

(2.) The court in the case of State of Himachal Pradesh v. A. Parent of a Student of Medical College, Simila, (1985) 3 SCC 169 in para 4 of the judgment said that where the court finds on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the underprivileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the court certainly can and must intervene and compel the executive to carry out its constitutional and legal obligations. No doubt the court said that the court cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law-making activities of the executive and the legislature. A reference may be made to the case of Veena Sethi v. State of Bihar, AIR 1983 SC 339, as well as Sheela Barse v. State of, Maharashtra, AIR 1983 SC 378. In the famous case of Bandhu Mukti Morcha v. Vision of India, (1984) 3 SCC 161 , an objection was raised on behalf of the State of Haryana as well as one of the mine-lessees that the letter cannot be treated as writ petition under Art.32 of the Constitution of India because no fundamental right of the petitioner or of the workman on whose behalf the writ petition has been filed, can be said to have been infringed. The court said :-

(3.) The Supreme Court also said that the adversial procedure with evidence let by either party and treated by cross-examination by the other party and the Judge playing A passive role has become a part of our legal system because it is embodied in the Code of Civil Procedure and the Indian Evidence Act. But these statutes obviously have no application where a new jurisdiction is created in the Supreme Court for enforcement of a fundamental right. The Supreme Courts in para No. 14 of the judgment, further said that (AIR 1984 SC 802 at p. 816) :-