Suo Moto Powers in the Writ Jurisdiction | South Asian Revolution?

by Shamsul
Suo Motu Powers
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Suo Moto Powers in the Writ Jurisdiction | South Asian Revolution?

 

Indian courts have introduced the use of suo moto powers, and it seems like some other courts in South Asia, like Bangladesh and Pakistan, are getting inspiration from it.

Since January 2020, the court has been involved in thirteen cases ‘suo moto’. It means that the court takes cases without any interest or filed petitions. A notice of their own starts these cases. Some of these cases are very important and have been taken up in pandemic situations, e.g., dealing with migrant workers, vaccine policy, prisoners, and vulnerable children.

This type of suo moto power is given by the S. 23 of Contempt of Courts Act, 1971 with respect to contempt of the court. Many other fundamental law authorities give this power to courts. However, the use of the procedure in judicial review authority or writ has been new to India, and here it is being used for testing or scanning executive (in) action.

Vasujith Ram and Marc Galanter say that it was created from a relaxation of the procedure while considering the public interest litigation. The court justifies this power under Articles 32 and 226 of the constitution of India, 1950.

 

Gujrat High Court Suo Moto

The earliest of this procedure was seen in a case by Gujrat High Court, and the judge was MP Thakkar (Special Civil Application 2785/79) in the year of 1979. In this case, court took into consideration a case where PPF did not pay the wife the pension after the husband’s death, and the court came to know about this case from a news article. Court gave orders to the state for granting the pension to her.

 

Supreme Court – India

In Sunil Batra case in 1980, a letter was accepted as a petition at Supreme Court. Academics have named this type of practice in which informal letters are considered petitions as the court’s ‘epistolary jurisdiction. Some suo moto cases are taken up as a result of some initiatives by the judge(s). In 2014, the process for suo moto petitions at Supreme Court became formal by the adoption of the Order38, Rule 12(1)(a) in Supreme Court Rules, 2013.

European Courts – Suo Moto

Other countries’ authorities like Australia, Canada and the United Kingdom have not adopted these powers. Constitutional and Administrative law cases in these authorities remain in traditional adversarial process, where it is necessary to file a petition for consideration of the claim. In Carlisle v. the United States, the Supreme Court of United States said that the court could not use ‘suo moto’ to grant an acquittal.

 

South Asian Courts – Suo Moto

It seems like Indian Courts have introduced this different and good use of the suo moto powers. It is like inspiration for many other South Asian Courts, which started taking up the cases like suo moto. A very common use is seen in another country, Pakistan. Court has depended on Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 to give a justification of their powers of suo moto. This article basically gives a permit to correct the violations of fundamental rights. It was commonly used in the 1980s when martial law was raised.

This process is used more commonly nowadays. Under the CJP Nisar (2016-2019), the Supreme Court of Pakistan started almost seven suo moto cases. It became more prominent in pandemic duration.

For the first time in 1992, Bangladeshi Court used this procedure to quash the sentence of a prisoner jailed for twelve years since he was 9 years old. Since then, courts have used the ‘Suo Moto Rule’ for different reasons. Except for these sentences or cases, they are used for other cases like child rape that can cause fatwas.

Supreme Court of Maldives had given an order against Human Rights Commission od Maldives in Suo moto case in 2015. The power of commission and the ability to interact with foreign bodies were restricted by doing so. When they faced criticism, then parliament passed a law to restrict power accurately.

 

Nigerian Courts

Beyond South Asia, Nigerian Courts also experienced suo moto powers differently. It is done by adopting a case that is already decided in the lower court before filing an appeal.

 
 

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