By Ayush Katyayana
(Student of National Law University, Delhi)
Introduction
Analysis of the Substantive Aspects of the Case
The most striking feature of the court’s order in this case is that it did not even go into the primary substantive (and highly publicized) question of the possible risks arising from increased radiation due to 5G technology. To illustrate what can only be called the ignorance of the court towards adjudicating on a matter of such wide public importance regardless of any procedural errors in the filing of this plea if any, one need not look beyond the evidently nebulous and uncertain position of the Indian law on risks of mobile radiations emanating from cell-phone towers and technology prior to the advent of 5G and its trials. On one hand, in a number of cases[4] the courts and tribunals have ordered the removal of mobile towers due to their hazardous radiations from high-risk areas like schools and hospitals and when they were found to have caused cancer in an individual, apart from the Supreme Court in 2018 allowing a plea by actress Juhi Chawla herself that demanded stricter regulation of cell-phone tower radiations on account of the same[5]. On the other hand however, in a number of other cases[6] the courts have also dismissed petitions against the erection of mobile towers that cited health hazards due to radiations by holding that there is no conclusive scientific evidence to prove that such radiations are harmful or hazardous to health, and relied on scientific reports of the World Health Organisation (WHO) for the same[7].
Existing knowledge and evidence on the risks of 5G technology in turn are all the more unclear and insufficient as compared to the above, with such risks being said to exist/be currently under study by many including the very organizations quoted in the above cases as proof of mobile radiations not being hazardous. While the WHO has said that no adverse health effects have been causally linked with exposure to radiation yet, the same is qualified by it saying that “only a few studies have been carried out at the frequencies to be used by 5G” and the fact that a health risk assessment by the WHO of exposure to radiofrequencies including 5G is due to be published only in 2022[8]. Furthermore, the WHO’s International Agency for Research on Cancer (IARC) had itself in 2011 classified radio frequency radiations as “possibly carcinogenic to humans”[9]. Additionally, 1670 peer-reviewed studies have found harmful health effects from exposure to radio frequency cellular radiations even at intensities too low to cause heating of tissues- the main biological effect of electromagnetic radiations[10], and a group of 400+ scientists and doctors have signed an appeal to the European Union (EU) for a moratorium on the deployment of 5G until credible assessment of its potential health risks has been carried out[11], proving that fears of health hazards from 5G radiations are not at all unfounded.
Yet, in spite of the above, the Delhi HC in the present case did not even go into this all-important question of public health and importance raised in the plea before dismissing it.
Analysis of the Procedural Aspects of the Case
With regards to the procedural aspects dealt with in this case, as part of their last two interlocutory appeals, the plaintiffs sought leave to institute their suit under Section 91(1)(b) of the CPC 1908 (Public nuisances and other wrongful acts affecting the public) that allows two or more persons to institute a suit with the leave of the court when a wrongful act affects the public[12], the wrongful act in this case being the act of omission of the State in not completing studies and assessments into the health hazards of 5G technology before allowing activity in the field as stated in the plea; and to sue in representative interest under Order I Rule 8 of the CPC 1908 (One person may sue or defend on behalf of all in same interest) citing eminent threat from 5G technology to public health and interest. The court refused to grant leave to institute the suit under both these heads on account of a number of procedural faults therein in contravention of multiple provisions and sub-sections of the CPC 1908 and the Specific Relief Act 1963[13], including that of the plaintiffs not having enough personal knowledge of many averments made by them. In light of this, it has already been discussed in the preceding section as to how the possibility of health hazards from 5G radiations is an area lacking sufficient proof and investigation that even international scientific agencies and health bodies like the WHO do not have sufficient knowledge of[14]. Hence to expect a plaintiff in such a case to possess personal knowledge of such matters and citing lack of the same as a ground to dismiss their suit can only be described as downright arbitrary, irrational and ignorant on the part of the court. Furthermore, even an injunction under Section 39 of the Specific Relief Act 1963 (Mandatory injunctions) on 5G activities till certification of its safety to humans was refused on the grounds of it not satisfying either requirement of there being an obligation of the defendant towards the plaintiff and breach thereof by the former[15], when both these requirements were very clearly fulfilled in terms of the government (defendant) owing a duty to its citizens (plaintiffs) to take reasonable measures to safeguard and protect their health as part of their right to health and life[16], and having breached the same by not adequately investigating into the eminent health hazards of a large-scale activity like the rollout of 5G technology. Finally, another ground for dismissal of the suit as cited by the court in its order was that an application seeking leave of the court to institute the same was not filed along with the suit, when according to the very next paragraph of the order[17], the same was filed as part of the suit vide I.A. Nos. 7001/2021 and 7002/2021 on the very day it was filed. These applications were in turn held as lacking special damages suffered by the plaintiffs, which is not required for the purpose of Section 91(1)(b) of the CPC 1908 going by the clear wording of the statute, and the plaintiffs as members of the larger general public likely to be affected by 5G technology certainly possessed interest in the suit for the purpose of filing it in representative interest under Rule I Order 8 of the CPC 1908.
Costs Imposed and Remarks Made in the Order
In the concluding remarks of its judgement, the court while saying that “the plaintiffs have abused and misused the process of law which has resulted in waste of judicial time”, imposed costs of Rs. 20 lakhs on the plaintiffs. With respect to this point of the costs imposed, even if one was to assume that the plea of the plaintiffs was false and vexatious as held by the court, such costs as per Section 35(A) of the CPC 1908 (Compensatory costs in respect of false or vexatious claims or defences) are capped at Rs.3000 and are to be compensatory in nature, i.e., paid to the other party for the legal costs incurred by them in fighting a vexatious suit. In this case however, the costs imposed were not compensatory but punitive in nature, as they were ordered to be paid not to any of the defendants in the suit or the State, but the State Legal Services Authority (which is not the same as the State) and were hence bad in law[18]. Even with respect to the quantum of costs that were payable as compensation to the other party when the latter incurred high advocate fees, the Supreme Court in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust[19] struck down an order of the Delhi HC that imposed costs of Rs. 45 lakhs and deemed the same to be unsustainable going by the CPC 1908 read with the Delhi High Court Rules themselves, and instead pegged such exemplary costs payable at a mere Rs.3000. Hence, the amount of Rs.20 lakhs imposed in this case as merely punitive costs by the Delhi HC was in stark contravention of legal principles, statutory law and judicial precedents, and thus, the only possible basis for the court’s action was probably a consideration of the high socio-economic status of the plaintiff Juhi Chawla. To this effect, it is a well recognised principle of law that equality before the law[20] implies that while such public figures and celebrities do not enjoy any special privilege or treatment before the law, they are also not to incur any special liability while facing the law on account of their status[21].
Finally, actress Juhi Chawla had circulated the link to the virtual hearing in this case via her social media handles which led to some unidentified persons disrupting the said proceedings by singing songs from her movies, which made the court remark in its order that “the plaintiffs have filed this suit to gain publicity” given the same. While this may have been a genuine lapse on the part of Ms. Chawla, the court coming to such a finding solely based on the same is simply too extreme and disproportionately harsh a stance to have been taken by the court given the circumstances and the fact that when the Delhi HC itself had faced a nearly identical situation earlier in 2020, it only laid down in its order stricter regulations pertaining to sharing of links of virtual hearings, and it neither made any such remarks against the plaintiffs back then nor did it seek to determine the intention of plaintiffs in filing the plea solely based on the same[22].
Conclusion
In light of all of the above, the Delhi HC’s approach and attitude in passing its order in this case can only be described as ignorant, arbitrary, overbearing and unfair in principle as well as in law. Given the high public importance of the matter in question as discussed, there were a number of alternative, more just routes for the court to take in this suit- it could have ordered a scientific or technical enquiry into health risks associated with 5G technology given that not just the plaintiffs, but even the court as well as scientific and health bodies at present do not have sufficient knowledge or evidence of the same to be able to conclusively ascertain their existence, and that a certification of the safety of such technology is what the impugned plea sought in the first place; or the court could have also substituted the original plaintiffs in this case with any other person(s) having the same interest in the suit and thereafter tried the suit on its merits in the event of the former not having proceeded with due diligence[23]. However, notwithstanding everything stated and discussed thus far, the court chose to proceed in this case the way it did, instead of what would have been and should have been a landmark yet much needed judicial intervention into and protection of the right to health of citizens in light of the risks posed to the same by large-scale technology and industry. Even as applications by the plaintiffs seeking refund of court fees, waiver of the costs imposed on them and replacement of the word ‘dismissed’ in the order with ‘rejected’ were subsequently filed by them before the Delhi HC with the first application being withdrawn, the second dismissed and the third still pending[24], the main subject matter of the original plea, i.e., risks associated with 5G technology and certification of the safety of the same, has been all but brushed aside and laid to rest, at least for now. Thus, one can now only hope that in spite of this judgement and for the sake of citizens’ own health and well-being, adequate attention and investigation, brought about by judicial orders or otherwise, is still directed to the possible hazards emanating from 5G tech and radiations therein before it is too late and the technology being deployed for mass usage.
Footnotes
[1] Press Trust of India, Actress Juhi Chawla files plea against 5G technology in Delhi HC, hearing on June , LIVEMINT (May 31, 2021, 03:19 PM), https://www.livemint.com/technology/tech-news/actress-juhi-chawla-files-plea-against-5g-technology-in-delhi-hc-hearing-on-june-2-11622454065650.html.
[2] Juhi Chawla & Ors. v. Science and Engineering Research Board & Ors., 2021 SCC OnLine Del 3030.
[3] Nikita Gupta v. Alok Gupta & Ors., CS(OS) No.553/2016 & CC No.19/2017.
[4] Cellular Operators Assn. of India v. Justice I.S. Israni (Retd.) & Ors., (2015) 13 SCC 663; Bhupesh Sehgal v. Delhi Development Authority 2015, SCC OnLine NGT 587.
[5] Press Trust of India, Top Court To Hear Actor Juhi Chawla’s Plea In Mobile Tower Radiation Case, NDTV (Sep. 14, 2018, 11:32 PM), https://www.ndtv.com/india-news/top-court-to-hear-actor-juhi-chawlas-plea-in-mobile-tower-radiation-case-1916777.
[6] Vikas Luthra v. MCD, (2016) 157 DRJ 463; Vijay Verma v. State of Himachal Pradesh, AIR 2016 (NOC 229) 101; and Biju K. Balan v. State of Maharashtra (2019) 2 Bom CR 625.
[7] Kapil Choudhary v. Union of India, (2016) 231 DLT 158.
[8] RADIATION: 5G MOBILE NETWORKS AND HEALTH, https://www.who.int/news-room/q-a-detail/radiation-5g-mobile-networks-and-health (last visited Jul. 18, 2021).
[9] IARC CLASSIFIES RADIOFREQUENCY ELECTROMAGNETIC FIELDS AS POSSIBLY CARCINOGENIC TO HUMANS, https://www.iarc.who.int/wp-content/uploads/2018/07/pr208_E.pdf (last visited Jul.18, 2021).
[10] POWERWATCH: 1,670 PEER-REVIEWED SCIENTIFIC PAPERS ON ELECROMAGNETIC FIELDS AND BIOLOGY OR HEALTH- ELECTROMAGNETIC RADIATION SAFETY, https://drive.google.com/file/d/19CbWmdGTnnW1iZ9pxlxq1ssAdYl3Eur3/view (last visited Jul.17, 2021).
[11] 417 signatories, Scientists warn of potential serious health effects of 5G, THE 5G APPEAL (Sep. 13, 2017), https://www.5gappeal.eu/the-5g-appeal/.
[12] Code of Civil Procedure, 1908, §91(1)(b), No.5, Acts of Parliament, 1908 (India).
[13] Supra note 2, at paras 35-39.
[14] Supra note 8.
[15] Specific Relief Act, 1963, §39, No. 47, Acts of Parliament, 1963 (India).
[16] INDIA CONST. art. 21; M.S. Chawla v. State of Punjab, (2001) 5 SCC 358.
[17] Supra note 2, at para 39.
[18] Ashok Kumar Mittal v. Ram Kumar Gupta, (2009) 2 SCC 656.
[19] (2012) 1 SCC 455.
[20] INDIA CONST. art. 14.
[21] Rhea Chakraborty v. Union of India, 2020 SCC OnLine Bom 990.
[22] Satyam Kumar Sah v. Narcotics Control Bureau, 2020 SCC OnLine Del 1263.
[23] Code of Civil Procedure, 1908, Order I Rule 8(5), No.5, Acts of Parliament, 1908 (India).
[24] Sofi Ahsan, Juhi Chawla’s plea against Rs 20 lakh fine in 5G case: Court says ‘shocked at conduct’, THE INDIAN EXPRESS (Jul. 7, 2021, 11:11 PM), https://indianexpress.com/article/cities/delhi/juhi-chawlas-20-lakh-fine-in-5g-case-court-says-shocked-7393240/.
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