The way ahead

- SHAMBHU THAPA & SHARDUL THAPA, Kathmandu

Oct 13, 2015-

Filing a public interest litigation at the Indian Supreme Court could

provide a legal recourse to the ongoing unofficial  blockade on Nepal

 

Nepal-India relations are as old as the Himalayas. Our relations have been strengthened not just through the acknowledgment of mere documents, but through the coming together of the people of the two nations. India is looking at Nepal with hope.” Not very long back, the 15th and incumbent Prime Minister of India, Narendra Damodardas Modi, expressed similar sentiments while addressing Nepal’s Parliament on August 3, 2014.

About a year later, on September 20, 2015, the president of Nepal promulgated the Constitution of Nepal 2072. Whether due to the fact that India’s ‘hope’ was not incorporated in Nepal’s constitution or due to the selfish interests of the largest parties, the country is currently in a state of turmoil which has not only resulted in unrest in the Tarai but also made the whole of Nepal suffer.

In our opinion, all faith in the Constitution Assembly (CA) was lost on May 27, 2012 when the former Chief Justice of the Supreme Court of Nepal was appointed as the Chairman of the Interim Council of Ministers—without seeking any resignation from the post of Chief Justice—through the consensus reached between the political maestros of Nepal.

In other words, no matter how good a constitution delivered by the CA, the very foundation of the most revered document of the nation will forever be tainted—the trias politica principle (separation of powers) on which the Constitution of Nepal is structured was not heeded at its inception. This is a precedent that the nation is being forced to ignore. Also, a constitution seeks to integrate the nation. But the promulgation of the Constitution of Nepal 2072 has instead fueled division. This might just be the way politics works in Nepal. But the intention of this article is not to indulge in political commentary. Rather, this is an attempt to remind everyone about a legal recourse to the ongoing tension at the Nepal-India border ever since the promulgation of the Constitution

of Nepal.

Public interest litigation in India

The Republic of India, the largest democracy in the world, has the longest written constitution in the world containing a total of 444 articles segmented in 22 parts. The Constitution of India, backed and strengthened by numerous judicial decisions has a unique and exceptional feature: Public Interest Litigation (PIL) as a means to approach the judiciary for the removal of public grievance and the enforcement of fundamental rights. This is a feature which many other common law countries, including the judiciary of Nepal associates itself with. The Constitution of India allows any public spirited individual to approach the judiciary with a public cause by filing of a petition at the Supreme Court of India as envisaged under Article 32 or the High Court under Article 226 of the Constitution of India.

The seed of the concept of Public Interest Litigation was first sown in India by Krishna Iyer J. in the case of Mumbai Kamgar Sabha vs. Abdul Thai (AIR 1976 SC 1455).The rule of locus standi in PILs is said to have been liberalised in the case of Fertilizer Corporation Kamgar Union vs. Union of India (AIR 1981 SC 344) and the notion of PIL apparently blosommed in the case of S.P. Gupta and others vs. Union of India (AIR 1982 SC 149) through the judicial breakthrough

provided by the renowned pro-poor and activist judge of the Supreme Court of India, Bhagwati J. Over several years, the judiciary has not only been able to test the validity of several laws, but has also been able to rightly enforce the rule of law through the notion of PIL.

The foundation of PIL is derived from two fronts: strengthening

of the judiciary amongst the masses of ‘the low visibility area of humanity’ whose rights have been intervened

by the executive and the legitimate role of judiciary that it seeks

in the governance process, particularly being the guardian of the human civilisation.

In light of this, it is necessary to note the concept of PIL in India. The Supreme Court of India has not only decided to depart from the traditional locus standi rule but also greatly relaxed the procedure for filing PILs. The procedure to file PIL petitions in Indian Courts have evolved through epistolary jurisdiction and these days, it includes letters written to courts—where letters received by post have also been treated as writ petitions—after being approved by the judge appointed for the same. And several letter complaints regarding harassment, torture or other atrocities

have been considered as valid petitions in the past. Also, the court reserves the right to take suo moto action based on newspaper reports and initiate proceedings without any court fees or affidavits. Hence, it is a collaborative litigation.

File a PIL

The Supreme Court of India through several of its rulings as in the cases of Sunil Batra vs. Delhi Administration, S.P. Gupta vs. Union of India, Akhil Bharatiya Soshit Karmachari Sangh, vs. Union of India, People’s Union for Democratic Rights vs. Union of India and Bandhua Mukti Morcha vs. Union of India have clearly overlooked the technical grounds of locus standi and initiated proceedings on the basis of simple letters or on suo moto basis. And, this is where the legal recourse to the so called ‘unofficial blockade’ at the Nepal-India border lies—filing a PIL at the Supreme Court of India.

PIL has become a major instrument to promote the rule of law, demand fairness and monitor the accountability of the government or its agencies. The possible intervention from the Indian judiciary, in the matter highlighted above would clearly not amount to judicial populism. PIL is the sole panacea that will ameliorate the hardships caused to many citizens on both sides of the border, without disregarding or affecting the sovereignty of both the nations. This goal-oriented approach of the PIL needs to be adopted in light to the conscience of the constitution and the judiciary needs once again act as the bastion of the rights and justice.         

Here, before departing, we would like to note the case of Kesavananda Bharati vs. State of Kerala, where Dwivedi J. stated that “The court is not chosen by the people and is not responsible to them in the sense in which the House of People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.”

Shambhu Thapa is a Senior Advocate at the Supreme Court of Nepal and Shardul Thapa is anadvocate at the Bar Council of Nepal

 The Constitution of India allows

any public spirited individual to approach the judiciary with a public cause by filing of a petition at the Supreme Court of India as

envisaged under Article 32 or the High Court under Article 226 of

the Constitution of India

 

Petition to the Hon’ble Chief Justice of India, Supreme Court of

India-Petition under Article 32 of the Constitution of India read

with Order XXXVIII of Supreme Court Rules, 2013

At the very outset, I, Shambhu Thapa, Senior Advocate (Supreme Court of Nepal) and former President of the Nepal Bar Association (2003-2006) would like to point out that this is only a letter Public Interest Litigation (PIL) petition, and hence is not in a petition format, and neither does it include the procedural aspects of a writ petition, interpretation of laws and nor does it entail the immense theoretical concepts or gravity of substantive law. This petition is a mere effort to reach the Supreme Court of India, the upholder of justice in the entire territory of India, regarding the issue at hand.  

The current ongoing crisis—ever since the promulgation of the Constitution of Nepal, 2072 on September 20, 2015—at the Nepal-India border has hampered and threatened the daily livelihood of the people staying on both sides of the border, and has raised questions about the safety of the nationals of both the states. The ongoing tension has been covered by many news agencies and several articles relating to it continue to be published on an almost daily basis. The pelting of stones from both the sides of the border has caused a situation of arson, and it might soon turn into the firing of gunshots.

Here, the question is not just the quantum of suffering of the citizens of the two nations, but the legitimacy of the act—the unofficial blockade or the restriction on the movement of the goods by the Indian authorities at the Nepal-India border. The question is not about the dependence on other nations, and the political or ideological differences between the two nations, but the legitimacy of the act and the immediate need of intervention by the judiciary in providing a judicial way out to the ongoing border blockade, without defeating the sovereignty of both the nations, Nepal and India.  

From a strict legal point of view, the restriction on the movement of goods, particularly essential commodities such as Liquefied Petroleum Gas (LPG) at the Nepal-India border through the means of an unofficial blockade has not only directly violated the equality before law and protection of life and personal liberty, a fundamental right guaranteed by the Constitution of India, in respective Articles 14 and 21; but has also raised a question about the fundamental duties of every citizen of India, as envisaged under Article 51-A (i) and (j): to safeguard public property and to abjure violence; to strive towards excellence in all sphere of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.

The Directive Principles of State Policy as incorporated in Article 38 of the Constitution of India clearly mandates the social order for the promotion of welfare of the people and the need for the state to meet such ends at all times. The current border tension and the apparent unofficial blockade at the Nepal-India border is clearly against the state’s duty to strive to promote the welfare of the people and secure and protect its interest at all ends, whether from social, economic, justice or political point of view. Rule of law has no boundaries. It is this principle that enforces the well-being of the entire human civilisation and a clear example of such is when we, the legal fraternity cite judgments and philosophies derived by the judiciary of foreign nations to enhance the jurisprudence of the home country.

The legitimacy of a blockade by an administrative authority can be established only in relation to contraband goods. No unofficial blockade carried out with vested political interests can be termed justifiable. In other cases, the judiciary needs to be duly approached for safeguarding the interests of the masses. The Supreme Court of India in a similar border blockade case, had issued an interim order directing the Union of India to prevent the illegal movement of animals across the border from India to Nepal to be sacrificed at the Gadhimai festival to be held in Nepal. The Supreme Court of India termed the act of sacrificing animals as demeaning and cruel and hence found legitimacy in restriction of the movement of the animals for the purpose of sacrifice through the Nepal-India border parts like the states of Bihar, Uttar Pradesh, Uttarakhand and West Bengal. This precedent shows the power and authority of the Supreme Court to provide such orders and direction even in intra jurisdictional cases.

Likewise, even in the much debated trial of the sole convict of the 26/11 Mumbai terror attack case, the Supreme Court had appointed Senior Advocate Raju Ramachandran as an amicus curae to defend the accused Ajmal Kasab. Likewise, in another widely reported and popularly known as the Enrica Lexie case, involving the legitimacy of the trial of the two Italian marines in India along with the concept of diplomatic immunity, the Supreme Court stated that the authority of the sovereign to make and enforce laws within the territory over which the sovereignty extends is unquestionable in constitutional theory. It based its judgment on argument that the international treaties can be recognised only if the supreme law of the land: the constitution exists. Hence, the broad contours, ability, desire and aspiration of the Indian judiciary to defend the rights of the people and uphold the legitimacy of an act is unparalleled.  

Hence, a dispute may be internal and political, but when the entire population of a country is made to suffer

to meet a political intent through the implementation of a wrongful medium such as that of an unofficial blockade, the judiciary, being the upholder of the legitimacy of an action, must intervene. This is not an issue of international courts, as it involves the intricate issue between two nations, nations that have created history together. And hence, particularly highlighting the fact and depth through which the Supreme Court of India has interpreted the concept of rule of law in Maneka Gandhi case, the rule of law needs to once again be established. Allow me to note Article 142 of the Constitution of India that provides the right to the Supreme Court to pass such decrees or orders as necessary for doing complete justice in any matter pending before it.       

Therefore, in order to provide complete justice, on behalf of the entire citizens of Nepal, it is my humble plea before the Supreme Court of India, its Hon’ble Chief Justice and other Hon’ble puisne Justices that a petition of PIL be registered at the Supreme Court of India over the pertaining matter of the current ongoing unofficial Nepal-India border blockade, and the free movement of goods and transportation be restored and established at the earliest, and ex-parte interim orders or any other necessary orders and direction be given to the Union of India Ministry of Home Affairs, Union of India through the Secretary Department of Border Management, Union of India through the Director General Sashastra Seema Bal, Union of India Director General of Foreign Trade Ministry of Commerce and Industry, Union of India Department of Revenue Ministry of Finance and all other respective governmental agencies at concern.

The present tension at the Nepal-India border, which has restricted the free movement of freight and cargo of the daily essentials and in particular the petroleum products including LPG, causing severe shortages in all parts of Nepal, directly causing the national economy of Nepal to come at halt, which many believe is because of an unofficial blockade carried out by the Government of India, in resistance to the promulgation of the Constitution of Nepal. However, the Government of India has clearly denied any active role in carrying out such a blockade and has time and again released strong statements highlighting that the restriction in the movement of goods at the Nepal-India border is not caused by any intervention by Government of India, but is rather a direct consequence of the ongoing internal political turmoil leading to multiple cases of arson, hence questioning the safety of the entire transporters. Particularly, noting the fact that a large number of media reports and several news agencies clearly indicate the sole cause of the restriction in the movement of goods at the Nepal-India border being an unofficial blockade carried out by the Government of India, of which even the European Commission has already criticised in its latest press release, it is my utmost belief that the legal recourse to this ongoing Nepal-India border tension, without hurting the sovereignty of both nations, is an initiation of a PIL at the Supreme Court of India. Therefore, along with my personal effort, I would also like to particularly request the Ambassador of Nepal to India and any other

member of the public fraternity to post letter petitions to the Supreme Court

of India and make our legitimate case heard.

The legitimacy of a blockade

by an administrative authority

can be established only in relation to

contraband goods. No unofficial blockade carried out with vested political interests can be termed

justifiable. In other cases, the

judiciary needs to be duly approached

Published: 13-10-2015 09:16

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