SHARMA, J. - (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 :- "The lis before us is not of the ordinary type where there are two contending parties, a claim is raised by one and denied by the other issues are struck evidence is led and the findings follow. Though the petitioner is a commuter of trains run by the Indian Railways, the writ petition is essentially in the nature of public interest litigation and the petitioner has attempted to voice the grievance of the community availing the services of the Indian Railways."
(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 :- "This contention is in our opinion futile and it is indeed surprising that the State Government should have raised it in answer to the writ petition. We can appreciate the anxiety of the mine-lessees to resist the writ petition on any ground available to them, be it hyper-technical or even frivolous but we find it incomprehensible that the State Government should urge such a preliminary objection with a view to stiffing at the threshold an enquiry by the court as to whether the workmen are living in bondage and under inhuman conditions. We should have thought that if any citizen brings before the court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government, which is under our constitutional scheme, charged with mission of bringing about a new socio-economic order where there will be social and economic justice for every one and equality of status and opportunity for all would welcome an enquiry by the court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict senses of the term as defined in the Bonded Labour System (Abolition) Act, 1976, but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such as a situation can set right by the State Government."
(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) :- "....The poor and the disadvantaged, cannot possibly produce relevant material before the court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the Court. What is the Supreme Court to do in such a case? Would the Supreme Court not be failing in discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the petitioner belonging to the under privileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the court. If the Supreme Court were to adopt a passive approach and decline to intervene in such a case because relevant material has not been produced before it by the party seeking its intervention, the fundamental would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community are concerned." The Supreme Court also observed that it is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of a fundamental right made on behalf the weaker sections of the society. The report of the commissioner would furnish prima facie evidence of the facts and data gathered by the commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an enquiry or investigation into the facts relating to the complaint. The Court also observed that it is interesting to note that in the past the Supreme Court has appointed sometime a district Magistrate, sometimes a District Judge, some time a professor of law, sometimes a journalist, sometime an officer in the Court and sometimes an advocate practising in the Court for the purpose of carrying out an enquiry or investigation and making report to the court be cause the commissioner appointed by it must be a responsible person, who enjoys the confidence of the court and who is expected to carry out his assignment objectively and impartially without any predilection or prejudice. Once the report of the commissioner is received, copies of it would be supplied to the parties so that either party if it wants to dispute any of the facts or data stated in the report may do so by filing an affidavit and the court then consider the report of the commissioner and the affidavits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely for the court to consider what weight to attach to the facts and data stated in the report of the commissioner and to what extent to act upon such facts and data. But it would not be correct to say that the report of the commissioner has no evidentiary value at all, since the statements made in it are not tested by cross- examination. To accept this contention would be to introduce the adversial procedure in a proceeding where in the given situation, it is totally inapposite. It may be said that the jurisdiction of this Court under Art.226 of the Constitution of India is similar as that of the Supreme Court under Art.32 of the Constitution of India. The Supreme Court in para 15 of the judgment in the case of Bandhu Mukti Morcha (AIR 1984 SC 802) (supra) said that what it had said in regard to the exercise of jurisdiction by the Supreme Court under Art.32 must apply equally in relation to the exercise of jurisdiction by the High Court under Art.226 of the Constitution for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Art.32 and the same powers can and must therefore be exercised by the High Court while exercising jurisdiction under Art.226. The Supreme Court also said that in fact, the jurisdiction of the High Court under Art.226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights. In view of the aforesaid dictum of the Apex Court, it can hardly be disputed that in the exercise of the powers under Art.226 of the Constitution this court in the matter of public interest litigation, like the present one, can appoint commissioner to make investigation and furnish the complete facts before this Court.;