Prof. Saraswathi Govindaraj Vs The Secretary to Government Ministry of External Affairs Government of India and The Chief Secretary Government of Tamil Nadu Secretariat

@JUDGMENTTAG-ORDER

1. The petitioner is a retired Head of Department of Social Sciences in Queen Mary''s College, Chennai and according to her, she has actively participated in several issues for emancipation of women and rejection of superstitious beliefs in Tamil Nadu, for the past several decades and she has also participated in several fact finding teams national and international, to investigate several social atrocities and she is also the State President of the People''s Union of Civil Liberties (PUCL), Tamil Nadu and Puducherry and the petitioner and others viz. Thiru. Nammalvar Environmental Activist, and Tmt. Krishnammal Jeganathan, Freedom Fighter and Bhoodan Movement Activist, submitted a representation dated 10.9.2013, requesting the Government of India to abstain from participating in the Commonwealth Heads of Government Meeting (CHOGM) to be held in Sri Lanka, during November, 2013. According to the petitioner, the Government of Sri Lanka has indulged in gross violations of human rights against the innocent Tamil Community in the War against Liberation Tigers of Tamil Eelam (LTTE) in the year 2009, and during such operation, several civilians were killed, tortured and maimed and it also amounts to genocide under the International law and the citizens of India are committed to upholding of human rights and adherence to the International Covenants prescribing mandatory compliance of Principles of Human Rights, and therefore, are constrained to make a request to ensure compliance of Article 51(c) of the Constitution of India and the International Covenants binding upon India.

2. The petitioner would further state that the International Covenant on Civil and Political Rights and so also the Articles viz. 2(1), 6(1), 6(3), 7(1), 26 and 27 thereunder, mandate the rights of human beings to enjoy civil and political freedom and freedom from fear and Article 1 of the Convention on the Prevention and Punishment of the crime of Genocide, 1948, also mandates that genocide, whether committed in time of peace or in time of war, is a crime under international law, which they undertake to prevent and to punish, and the Convention on the Rights of the Child also stipulates that State Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services and no child shall be subjected to torture or other cruel or inhuman treatment or punishment and no child shall be deprived of his or her liberty unlawfully or arbitrarily.

3. The petitioner further contended that the foreign policy of India is certainly guided by the directive principles of State Policy and Article 51 of the Constitution of India reads as follows: "Promotion of International Peace and Security. The State shall endeavour to -

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another.

(d)....

4. According to the petitioner, the several covenants and charters extracted above, to which, India is a signatory, clearly mandate (a) adherence to human rights; (b) punishment for crime of genocide; and (c) the relief from torture or cruel, inhuman or degrading treatment, and since India being a signatory to the above said covenants and charters, the same is binding on the Union of India and in view of the torture and inhuman treatment inflicted at the behest of the Government of Sri Lanka, on the Tamil minority people, who are citizens of Sri Lanka, the petitioner is having a right to make a request to the Government of India to adhere to the legal provisions enshrined in the Constitution of India and the International Covenants and Charters, and to request them to refrain from participating in any manner in the CHOGM conference proposed to be held in Sri Lanka, during November, 2013.

5. Hence the petitioner filed this writ petition styling it as a Public Interest Litigation, for a direction to the first respondent viz. The Secretary to Government, Ministry of External Affairs, Government of India, New Delhi 1, to consider her representation dated 10.9.2013, and dispose of the same within a stipulated timeframe and pass such further or other orders.

6. Mr. J. Saravana Vel, the learned Counsel appearing for the petitioner, made a passionate plea about the sufferings undergone/being undergone by the people of Tamil origin, who are citizens of Sri Lanka, at the hands of Sri Lankan Government, more particularly, the military, and would submit that at the end of the war waged by Sri Lankan Government, against the Liberation Tigers of Tamil Eelam (LTTE), so many innocent civilians of Tamil origin including women and children, who are citizens of Sri Lanka, were tortured and killed and even after killing, their bodies were mutilated and it is a worst example of human rights abuse known, apart from the genocide indulged by Adolf Hitler during the Second World War.

7. The learned Counsel appearing for the petitioner, has also drawn the attention of this Court to Article 51 of the Constitution of India, Charter of United Nations and Convention on the Rights of the Child and would submit that the petitioner by means of the representation dated 10.9.2013, has brought to the knowledge of the first respondent about the torture and inhuman treatment meted out to the innocent civilians of Tamil origin, who are citizens of Sri Lanka, and would further submit that in the event of the Government of India Delegation headed by the Hon''ble Prime Minister, attending the CHOGM conference proposed to be held in Sri Lanka, during November, 2013, it will definitely give a wrong signal to the abuse of human right to continue to indulge in the inhuman act and it will definitely give out an impression that the Government of India is actively supporting human rights abuse and violation of human dignity and hence, prays for appropriate direction directing the first respondent to consider and dispose of the petitioner''s representation dated 10.9.2013, within a stipulated timeframe.

8. This Court paid its anxious consideration and best attention to the submissions made by the learned Counsel appearing for the petitioner, and also perused the materials available on record, in the form of typed-set of documents.

9. The primordial question that arises for consideration, is whether a writ of mandamus can be issued directing the first respondent to consider and dispose of the petitioner''s representation dated 10.9.2013. It is relevant and useful to consider the following decisions rendered by the Hon''ble Supreme Court of India, with regard to the scope of writ of mandamus.

10. In The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, , the scope of 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.

11. 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:

89. 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.

12. In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, , the Honourable Apex Court stated as follows:

36. 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.

13. In Bihar Eastern Gangetic Fishermen Coop. Society''s case (cited supra), the Hon''ble Supreme Court has held that 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.

14. In the light of the ratio laid down in the above cited decisions rendered by the Hon''ble Supreme Court of India, a mandamus cannot be issued directing an authority to do or refrain from doing a particular thing, unless the concerned authority is having a statutory obligation to do or refrain from doing such a thing. The petitioner in her representation, has also elaborately dealt with the sufferings undergone/being undergone by the people of Tamil origin, who are citizens of Sri Lanka, and made a plea that in the event of the Delegation of Government of India participating in the CHOGM conference proposed to be held during November, 2013, in Sri Lanka, it would definitely give a wrong signal/impression that the Government of India is actively aiding and abetting human right violations and abuses and trying to invoke sympathy.

15. The Hon''ble Supreme Court of India in the decision reported in Common Cause (A Regd. Society) Vs. Union of India (UOI) and Others, , has considered the prayer sought for in a Public Interest Litigation directing the States and Union Territories to set up satisfactory procedures of licensing of vehicles and licensing of drivers for ensuring that the vehicles are fully equipped with devices, etc., and other consequential relief''s, and it has been held as follows:

(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 realise their own limits. Apart from the doctrine of separation of powers, courts must realise 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, ; and 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 nowadays 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 the 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.

16. In paragraph (66) 56 of the above cited decision, 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.)

17. In the light of the ratio laid down in the above cited decisions, it must be shown that the authority is having a legal duty to perform certain functions or refrain from doing certain things and the aggrieved party is having a legal right under the statute to enforce its performance. It has been further held that sympathy or sentiment by itself, cannot be a ground for passing an order in the absence of any legal duty on the part of the concerned authority to perform certain functions.

18. The petitioner made a fervent plea in her representation, about the sufferings undergone by the people of Tamil origin, who are citizens of Sri Lanka, and this Court do not under-estimate the contents of the said representation; but, at the same time, in the absence of any statutory/legal right on the part of the petitioner to compel the first respondent to perform legal duty/obligation, a writ of mandamus cannot be issued directing the first respondent to consider and dispose of the representation dated 10.9.2013, submitted by the petitioner, within a stipulated timeframe. Moreover, it touches upon the foreign policy of the Government of India which depends upon many factors governing the welfare and other aspects and this Court is not having expertise to analyse the same. The Hon''ble Supreme Court of India in the above cited decisions, has also laid down the ratio, which stood the test of times. This Court in the light of the reasons assigned above, is of the considered view that the present writ petition is not maintainable, and it is dismissed at the admission stage itself. However, in the circumstances of the case, there shall be no order as to costs.