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Judgment
M. Sathyanarayanan, J.—The petitioner who claims to be the President of Madurai District Hindu People Party, has filed this Public Interest
Litigation, praying for issuance of a writ of Mandamus, directing the respondents, namely, (i) The Cabinet Secretary to the Union Cabinet, Union
Secretariat, New Delhi-110 001; (ii) The National Security Advisor to the Honourable Prime Minister, Prime Minister''s Secretariat, New Delhi-
110 001 and (iii) The Foreign Secretary, Union of India, Central Secretariat, New Delhi-110 001, to consider his representation dated
21.01.2013 and pass orders. The petitioner sent a representation dated 21.01.2013 to the above said respondents and it is useful and relevant to
extract the contents of the said representation:
Respected Sri,
Sub: Demolition of 367 Hindu Temples-Sri Lanka-Renaming 89 Tamil Villages to Singala Names-invading of Tamil Areas in Sri Lanka by the
troops-regarding.
It is an universal truth that the Sri Lankan Government after committing genocide of nearly two lakhs of Tamilians originating from India, as a result
of which the Indian Government, had voted positively in the United Nations Organization on the war crimes resolution, moved by the United States
of America.
Apart from the above facts, the Chief Justice of the Supreme Court of Sri Lanka has been directly appointed by the President of Sri Lanka, which
is against the Sri Lankan Constitution. The person elevated as Chief Justice of Sri Lanka is the former advocate general, during the state sponsored
war against the Sri Lankan Tamils, who subsequently, representing Sri Lanka justified the killings of innocent tamils in the General Counsel of the
United Nations Organization.
After the above occurrences, during the month of December 2012 to January 2013, 367 Hindu Temples have been demolished by the Sri Lankan
Forces in the areas of tamilian population and apart from that 89 tamilian villages have been renamed in to Singala names. Further, after the
demolition of Hindu Temples and shrines built by the Sri Lankan Tamils, the Government of Sri Lanka has started constructing Buddha-Gayas,
replacing the temples.
There are about 750 army regiments each comprising of 300 Sri Lankan soldiers stationed through out the Tamilian areas from December 2012
onwards, for reasons best known to the Sri Lankan Government. India and Sri Lanka are members in the SAARC Countries, members of South
East Asian Countries and also signatories to 100''s of United Nations resolutions and treaties. Thus, the countries are friendly neighbors according
to International Laws and they enjoy extradition treaties between them for exchange of prisoners. Even though, the bilateral status of both India
and Sri Lanka is so on paper, so far 1000''s of Indian Tamil fisher men have been murdered by the Sri Lankan Navy within the Indian territorial
waters of the Bay of Bengal and Palk Strait, Gulf of Mannar.
The Republic of India is voting against Sri Lanka in the International Forum for war crimes against the indigenous Sri Lankan Tamil Population, but
calls Sri Lanka a friendly nation on the other hand, Sri Lanka calling India a friendly neighbor is committing Human Rights Violations and Mass
murders against the minority Tamils in Sri Lanka of Indian Origin. Thus being the case and admitted positions, there is no necessity for India to
have its Embassy and Indian High Commission at Sri Lanka instead the Government of India can close down the Indian High Commission and
Embassy at Sri Lanka and promulgate Sri Lanka as a Rogue State, so as to enable the International Court of Justice and the United Nations Peace
Keeping Forces, to engage themselves in the Internal Affairs of Sri Lanka in order to save the Sri Lankan Tamil life''s, Hindu Temples, Land and
Properties belonging to the minority Tamil population.
(extracted as such)
Mr. W. Peter Ramesh Kumar, learned Counsel for the petitioner made a passionate plea that at the time of ethnic conflict in Sri Lanka coming
to an end, thousands and thousands of people of Tamil origin were butchered and the human right has been given a complete go-by, by the Sri
Lankan Government and the women folk of Tamil origin settled in Sri Lanka, were molested, physically and sexually abused.
The learned Counsel for the petitioner would further contend that there is a large scale demolition of Hindu temples and the people of Tamil
origin who had settled long back, are evacuated and in that place, Singhaleses are settled and though the Government of India is aware of the
magnitude of the aforesaid problems, they have not at all taken any steps to address or mitigate the untold sufferings being undergone by the
people of Tamil origin settled at Sri Lanka.
The learned Counsel for the petitioner also contended that a Cabinet Minister of Sri Lankan Cabinet is a proclaimed offender in a case instituted
by the State of Tamil Nadu and though the President of Republic of Sri Lanka, is the sole cause for the aforesaid human right violation, he is
accorded Royal and ceremonial welcome by the Government of India.
It is the further submission of the learned Counsel for the petitioner that though the Indian seamen who were abducted by Somalian pirates, were
freed at the instance of the Government of India, the worst sufferers namely people of Tamil origin who are settled in Sri Lanka long back, have
been left in lurch at the mercy of the ruthless Sri Lankan Army and though number of political parties and Human Rights Organisations had brought
it to the knowledge of the Government of India, no action whatsoever has been taken by the Government of India in that regard and since the
Indian Embassy at Colombo, Sri Lanka, is not taking any action to mitigate the sufferings being undergone by the minority Tamils in Sri Lanka,
there is no point in having Embassy at Colombo, and it has to be closed down and in that regard only, the petitioner had submitted the above said
representation dated 21.01.2013 and this Court, taking into consideration the above said facts, may please to direct the respondents to consider
and dispose of the said representation within a stipulated time frame.
This Court paid it''s anxious consideration and best attention to the submissions made by the learned Counsel for the petitioner and also perused
the affidavit filed in support of this writ petition as well as the representation dated 21.01.2013, submitted by the petitioner to the respondents
through Speed Post.
The question arises for consideration in this writ petition, is as to whether a Writ of Mandamus would lie for directing the respondents to
consider the representation dated 21.01.2013, wherein, the petitioner has made a request to close down the Indian Embassy at Colombo, Sri
Lanka?
In The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, , the scope of the Writ of Mandamus came
up for consideration and in paragraph 15, at page 152, it has been held as follows:
[A] writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the
part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute
and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that
mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the
aggrieved party has a legal right under the statute to enforce its performance.
In Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, , a three-Judge Bench
of the Honourable Apex Court referred to Halsbury''s Laws of England, 4th Edn., Vol. I, para 89, about the efficacy of mandamus:
Nature of mandamus.-... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where
there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative
legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
The learned Counsel for the petitioner made a passionate plea about the sufferings being undergone by the minority people of Tamil origin in
Sri Lanka and pleaded that since the Indian Embassy at Colombo, Sri Lanka, has failed to take any action either to redress or mitigate the
sufferings undertaken by them, there is no point in running the Embassy and it should be ordered to be closed down.
The learned Counsel for the petitioner has also advanced a sympathetic argument by way of stating that the people of Tamil origin who are
minority in Sri Lanka, are facing innumerable sufferings and hardships at the behest of the Government of Sri Lanka, especially, Sri Lankan Army.
Therefore, incidentally, a question is also arising for consideration as to whether on the basis of sympathy, a Writ of Mandamus can be issued.
In Latham v. Richard Johnson and Nephew Ltd., reported in (1911-13) All ER Rep 117 : (1913) 1 KB 398 : 108 LT 4 (CA), it has been
held as follows:
We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o'' the wisp to take
as a guide in the search for legal principles.
In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, the Honourable Apex Court stated as follows:
We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants
miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the
Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.
In the light of the above said pronouncements, this Court is of the view that a writ Court should not, in the absence of any legal right, act on the
basis of sympathy alone.
Now, coming back to the primordial question as to the entertainment of the writ petition for a direction, directing the respondents to consider
the petitioner''s representation dated 21.01.2013 and pass orders, we are of the considered view that in the absence of any specific legal right and
any specific remedy for enforcing that right, a writ in the nature of Mandamus cannot be issued.
As held in the Bihar Eastern Gangetic Fishermen Coop. Society Ltd.''s case (cited supra), for issuance of a Mandamus to compel the
authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the
statute to enforce its performance.
In the case on hand, the affidavit filed in support of this writ petition, does not disclose any legal right on the part of the petitioner or the
statutory duty cast upon the respondents to close down the Indian Embassy at Colombo, Sri Lanka for the alleged atrocities being inflicted on the
people of Tamil origin who are residing in Sri Lanka.
It is the submission of the learned Counsel for the petitioner that the petitioner wants the restricted relief of consideration of his representation
dated 21.01.2013 by the respondents and pass orders on merits and in accordance with law within a stipulated time.
In A.P.S.R.T.C. and Others Vs. G. Srinivas Reddy and Others, , the facts would disclose that A.P. SRTC-the appellant before the
Honourable Apex Court, issued a circular containing the guidelines for absorption of the persons employed on casual basis/consolidated
pay/piecemeal rate/work-charged establishment, whose services had been ordered to be dispensed with under an earlier circular dated
02.07.1987. The respondents filed W.P. No. 14353 of 1991 claiming to be scavengers employed by the Corporation, seeking a direction for
regularisation. The High Court of Andhra Pradesh vide order dated 05.11.1991, has issued a direction to consider their cases in terms of the
circular dated 01.09.1988 and pass appropriate orders and doing so, the High Court did not examine the claim on merits. The Divisional Manager
of the Adilabad Division of the Corporation, in compliance of the said order, sent a communication to verify the claim of the respondents and
alleging inaction, the respondents had again filed W.P. No. 30220 of 1997, praying for a declaration that the inaction on the part of the A.P.
SRTC on the letter dated 14.07.1992, is illegal and praying for a direction directing the A.P. SRTC to absorb them into its service. The High
Court of Andhra Pradesh once again passed orders on 17.03.1998 to consider their claim on absorption without examining the merits of the case,
has incidentally gone into the question as to the meaning of the word ''consider'' and held as follows:
We may, in this context, examine the significance and meaning of a direction given by the court to ""consider"" a case. When a court directs an
authority to ""consider"", it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in
accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to ""consider
the claim/case/representation of the petitioner(s) in the writ petitions.
* * *
The High Courts also direct the authorities to ""consider"", in a different category of cases. Where an authority vested with the power to decide a
matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review,
directs the authority to ""consider"" and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs
consideration"" without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may
also direct the authority to ""consider"" afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or
by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the
claim on merits, but require the authority to do so.
The above cited decision of the Honourable Apex Court was considered and followed by this Court in M. Ingaci Vs. The Commissioner,
Devekottai Municipality and Others, wherein a Division Bench of this Court observed that the Court should be aware of the consequences of its
order when it directs the authorities to ""consider"".
In the considered opinion of this Court, unless the petitioner establishes that he is having a specific legal right and the respondents are also
under the statutory obligation to carry out their duties and in the event of their failure to do so, Mandamus may be issued to compel to do
something.
This Court had also paid its best attention to the plea made by the learned Counsel for the petitioner with regard to the sufferings being
undergone by the people of Tamil origin in a neighbouring country.
In Common Cause (A Regd. Society) Vs. Union of India (UOI) and Others, a Public Interest Litigation was filed by the Common Cause (A
Registered Society), New Delhi, before the Honourable Apex Court, praying for issuance of a Writ of Mandamus, to direct the Union of India in
consultation with the representatives of the respondents 2 to 6 and also the representatives of the other States and Union Territories, to set up fully
satisfactory procedures of licensing of vehicles and licensing of drivers, for ensuring that the vehicles are fully equipped with, etc., and other
consequential reliefs. It is useful and relevant to extract the following paragraphs:
(47) 37. We have gone deep into the subject of judicial activism and public interest litigation because it is often found that courts do not realize
their own limits. Apart from the doctrine of separation of powers, courts must realize that there are many problems before the country which courts
cannot solve, however much they may like to. It is true that the expanded scope of Articles 14 and 21 which has been created by this Court in
various judicial decisions e.g. Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , have given powerful tools in the hands of the
judiciary. However, these tools must be used with great circumspection and in exceptional cases and not as a routine manner. In particular, Article
21 of the Constitution must not be misused by the Courts to justify every kind of directive, or to grant every kind of claim of the petitioner. For
instance, this Court has held that the right to life under Article 21 does not mean mere animal existence, but includes the right to live with dignity
vide Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and
Others, , Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, . However, these decisions must be understood in a
balanced way and not in an unrealistic sense. For example, there is a great deal of poverty in this country and poverty is destructive of most of the
rights including the right to a dignified life. Can then the Court issue a general directive that poverty be abolished from the country because it
violates Article 21 of the Constitution? Similarly, can the Court issue a directive that unemployment be abolished by giving everybody a suitable
job? Can the Court stop price rise which now-a-days has become an alarming phenomenon in our country? Can the Court issue a directive that
corruption be abolished from the country? Article 21 is not a ''brahmastra'' for the judiciary to justify every kind of directive.
* * *
(54) 44. Moreover, if once the Courts take upon themselves the task of issuing ukases as to how administrative agencies should function, what is
there to prevent them from issuing directions as to how the State Government or Central Government should administer the State and run the
country? In our opinion such an approach would not only disturb the delicate balance of powers between the three wings of the State, it would
also strike at the very basis of our democratic polity which postulates that the governance of the country should be carried on by the executive
enjoying the confidence of the legislature which is answerable and accountable to the people at the time of elections. Such an approach would in
our opinion result in judicial oligarchy dethroning democratic supremacy.
(55) 45. In our opinion the Court should not assume such awesome responsibility even on a limited scale. The country can ill afford to be governed
through court decrees. Any such attempt will not only be grossly undemocratic, it would be most hazardous as the Courts do not have the
expertise or resources in this connection. The judiciary is not in a position to provide solutions to each and every problem, although human
ingenuity would not be lacking to give it some kind of shape or semblance of a legal or constitutional right, e.g. by resorting to Article 21.
In paragraph (66) 56, it is observed that ''the view that the judiciary can run the government and can solve all the problems of the people is not
only unconstitutional, but also it is fallacious and creates a false impression and false illusion that the judiciary is a panacea for all ills in society.
(emphasis supplied.)
This Court, on a thorough and careful scrutiny of the entire materials placed before it and in the light of the above cited pronouncements, is of
the view that the petitioner is not having any specific legal right or statutory right to compel the respondents to consider and pass orders on his
representation dated 21.01.2013, to close down the Indian Embassy at Sri Lanka. In such view of the matter, the writ petition fails and
accordingly, dismissed at the admission stage itself. Consequently, the connected Miscellaneous Petitions are dismissed. However, in the
circumstances of the case, there shall be no order as to costs.