SECTION: PILIN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL 3URISDICTION
WRIT PETITION NO._____ OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
Manish Kumar
Petitioner
Versus
Union of India and Others
Respondents
INDEX OF FILING
SRL.DESCRIPTIONCOPIESCT. FEE
1Synopsis & List of Dates 1+3
2Listing Proforma1+3
3Writ Petition1+3
41+3
51+3
61+3
71+3
81+3
91
Total Rs./-
DRAWN & FILED BY:
MANISH KUMAR
PETITIONER IN PERSON
NEW DELHI
DATED:
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL 3URISDICTION
WRIT PETITION NO._____ OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)IN THE MATTER
OF:Manish Kumar
PetitionerVersusUnion of India and Others
Respondents
PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)PETITIONER IN PERSON: MANISH
KUMAR
INDEX OF RECORD OF PROCEEDINGS
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DATE OF RECORD OF PROCEEDINGS PAGE NO.
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INDEXSrl.
Particulars
Page Nos.
1.Listing Proforma
2.Check List
3.Synopsis & List of Dates
4.Writ Petition with Affidavit
5.ANNEXURE-
6.ANNEXURE-
7.ANNEXURE-
A-1
LISTING PROFORMA
IN THE SUPREME COURT OF INDIA1.Nature of the MatterCIVIL
2. (a)Name (s) of Petitioner(s)/ Appellants(s):-Manish Kumar
(b)e-mail IDN/A
3. (a)Name (s) of Respondent(s):-Union of India & Ors.
(b)e-mail IDN/A
4.Number of case:-One
5.(a)Advocate (s) for the Petitioner:-Manish Kumar (Petitioner
in person)
(b)e-mail [email protected]
6.(a)Advocate(s) for the Respondent(s):-N/A
(b)e-mail IDN/A
7.Section dealing with the matter:-XVI
8.Date of the impugned Order/ Judgment:-27.08.2012
8A.Name of Honble Judges:-Honble Justice Mr. Shiva Kirti
Singh
Honble Justice Mr. V. Nath
8B.In Land Acquisition Matters:-
i) Notification/Govt. Order No. (u/s 4,6):
Dated N/A issued by Centre/State of:
ii) Exact purpose of acquisition & Village involved:N/A
8C.In Civil Matters:-
i) Suit No., Name of Lower Court:
Date of Judgment:
N/A
8D.In Writ Petitions:-
Catchword of other similar matters:N/A
8E.In case of Motor Vehicle Accident
Matters:- Vehicle No:N/A
8F.In Service Matters:-
(i) Relevant service rule, if any:
(ii)G.O./Circular/Notification, if applicable or in
question:N/A
8G.In Labour Industrial Disputes Matters:-
L.D. Reference/Award No., if applicable:
N/A
9.Nature of Urgency:-
Interim Relief
10.In case it is a Tax matter:-
a) Tax amount involved in the matter:
b) Whether a reference/statement of the case was called for or
rejected:
c) Whether similar tax matters of same parties filed earlier
(may be for earlier/other Assessment Year)?
d) Exemption Notification/Circular No:N/A
11.Valuation of the matter:-N/A
12.Classification of the matter:-
(Please fill up the number & name of relevant category with
sub category as per the list circulated.)
No. of Subject Category with full name:
No. of sub-category with full name:06(Service Matter)
0607(Condition of Service)
13.Title of the Act involved (Centre/State):N/A
14.(a) Sub-Classification (indicate Section /Article of the
Statue):
(b) Sub-Section involved:
(c) Title of the Rules involved Centre/State):
(d)Sub-Classification (indicate Rule/Sub-rule of the
Statute):N/A
15.Point of law and question of law raised in the case: Whether
an instructor in workshop can be equated with a teacher in
Engineering College for the purpose of determining the age of
superannuation when there exists intelligible differentia clearly
distinguishing the two positions/ posts in terms of education
qualifications, experience and job responsibilities?
16.Whether matter is not to be listed before any Honble
Judge?
Mention the name of the Honble Judge:
N/A
17.Particulars of identical/similar case, if any
a) Pending cases:
b) Decided cases with citation:
N/A
17A.Was S.L.P./Appeal/Writ filed against same impugned
Judgment/Order earlier? If yes, particulars:
N/A
18.Whether the petition is against interlocutory/final
order/decree in the case:
FINAL ORDER
19.If it is a fresh matter, please state the name of the High
Court and the Coram in the impugned Judgment/Order: High Court of
Judicature at Patna,
Honble Justice Mr. Shiva Kirti Singh
Honble Justice Mr. V. Nath
20.If the matter was already listed in this Court:
(a) When was it listed?
(b) What was the Coram?
c) What was the direction of the Court?N/A
21.Whether a date has already been fixed either by Court or on
being mentioned, for the bearing of matter? If so, please indicate
the date fixed:
N/A
22.Is there a caveator? If so, whether a notice has been issued
to him?
N/A
23.Whether date entered in the Computer?
N/A
24.If it is a criminal matter, please state:-
a) Whether accused has surrendered:
b) Nature of Offence, i.e., Convicted under Section with
Act:
c) Sentenced awarded:
d) Sentence already under gone by the accused:N/A
N/A
N/A
N/A
24E.(i) FIR/RC/ etc:
Date of Registration of FIR etc:
Name & Place of the Police Station:
(ii) Name & Place of Trial Court:
Case No. in Trial Court and Date of Judgment:
(iii) Name and Place of 1st Appellate Court:
Case No. in 1st Appellate Court & date of Judgment:
N/A
N/A
N/A
(MANISH KUMAR)PETITIONER IN PERSON
NEW DELHI
DATED:
SYNOPSISThe petitioner prefers a writ petition under Article 32
of the Constitution of India as public interest litigation for the
protection of Fundamental Rights of the Police personnel of the
country and for issuance of writ of mandamus & certiorari
against the administrative and judicial decisions violating the
various Fundamental Rights guaranteed under the Constitution. It is
also prayed for issuance of directions for enforcement of statutory
provisions for the protection of rights of police and general
public from threat/damage to life and property caused by violent
agitations. The petitioner, a practicing Lawyer and member of
Supreme Court Bar Association seeks indulgence of this Honble Court
for the protection of Fundamental Rights of Police personnel of the
country and issuance of direction/guidelines to enforce the
statutory provisions. The declining morale of the police and threat
of administrative or legal proceeding have resulted into increasing
violent agitation on road or public places causing serious threat
to the security of the people in the country.
In the recent time the trend of attack on Police has reached to
such a level that in almost every mass agitation, however, small or
big it may be, the police personnel are targeted, injured and
killed. The police vehicles are set on fire and the public
properties are damaged. In the entire event the police become
ultimate victim. If the police take lawful actions, they are
subjected to administrative or political harassments. They are
transferred, put to suspension, dismissed or ranked irresponsible
for doing their statutory and constitutional duties. If the police
fail to take action the same consequence follows.In the recent time
the suo-motu cognizance have been taken by this Honble Court on the
basis of media reportings. The print and electronic media, for the
reasons best known to them, make scathing attacks on the conduct
and morale of police by displaying selective photographs and video
clips. Some recent examples are as follows:-
1. Suo-motu cognizance was taken of the incidents regarding
large scale destruction of public property during gujjar agitation
and failure of the police to take preventive action in the State of
Haryana, Uttar Pradesh and Delhi. It was registered as WP (Crl) No.
77/2007. The writ petition was decided and reported as 2009 (5) SCC
212. 2. Suo-motu cognizance of incident regarding police action on
04/05.06.2011 in Ramlila Maidan, New Delhi. It was registered as WP
(Crl) No. 122/2011. It has been decided and reported as 2012 (5)
SCC 1.3. Suo-motu cognizance of incident regarding police action in
Taran Taran, Punjab and Patna, Bihar. It has been registered as WP
(C) No. 139/2013.
The police are subjected to administrative and legal proceedings
for doing their duties mainly on the ground of taking action or
observing restrain. The Fundamental Rights guaranteed under Article
14 and 21 and the statutory rights available to them are violated.
The low rank officers are punished high police officers are
transferred or defamed for obeying orders and doing their legal
duties.
The police forces in India are most vulnerable, ill-trained,
over-worked, strained and subjected to various commands and duties.
Despite all adverse working conditions they are subjected to mob
violence, media trial and finally administrative or judicial
actions.
It is respectfully submitted that several statutory provisions
as contained in Criminal Procedure Code, 1973, India Penal Code,
1860, Police Act. 1861, etc are ignored or violated while taking
action or deciding the validity of police action. Any prima-facie
opinion or punitive action without detailed enquiry causes serious
prejudices and violates the statutory & fundamental rights of
the Police personnel. The presumption that the police action was
unwarranted or police have acted in a barbaric manner seriously
infringes the fundamental and statutory rights of the police.
POLICE ACT, 1861
Section 23. Duties of police-officers:- It shall be the duty of
every police-officer promptly, to obey and execute all orders and
warrants lawfully issued to him by any competent authority; to
collect and communicate intelligence affecting the public peace; to
prevent the commission of offences and public nuisances; to detect
and bring offences to justice and to apprehend all persons whom he
is legally authorised to apprehend, and for whose apprehension
sufficient ground exists; and it shall be lawful for every
police-officer, for any of the purposes mentioned in this section,
without a warrant to enter and inspect, any drinking-shop,
gaming-house or other place of resort of loose and disorderly
characters.
29. Penalties for neglect of duty, etc:- Every police-officer
who shall be guilty of any violation of duty or wilful breach or
neglect of any rule or regulation of lawful order made by competent
authority, or who shall withdraw from the duties of his office
without permission, or without having given previous notice for the
period of two months, or who, being absent on leave shall fail,
without reasonable cause, to report himself for duty on the
expiration of such leave or who shall engage without authority in
any employment other than his police duty, or who shall be guilty
of cowardice, or who shall offer any unwarrantable personal
violence to any person in his custody, shall be liable, on
conviction before a Magistrate, to a penalty not exceeding three
months pay, or to imprisonment, with or without hard labour, for a
period not exceeding three months, or to both.
30. Regulation of public assemblies and processions and
licensing of the same:-
(l) The District Superintendent or Assistant District
Superintendent of Police may, as occasion required, direct the
conduct of all assemblies and processions on the public roads, or
in the public streets or thoroughfares, and prescribe the routes by
which, and the times at which, such processions may pass.
(2) He may also, on being satisfied that it is intended by any
persons or class of persons to convene or collect an assembly in
any such road, street or thoroughfare, or to form a procession
which would, in the judgment of the Magistrate of the district, or
of the sub-division of a district, if uncontrolled, be likely to
cause a breach of the peace, require by general or special notice
that the persons convening or collecting such assembly or directing
or promoting such procession shall apply for a license.
(3) On such application being made, he may issue a license,
specifying the names of the licensees and defining the conditions
on which alone such assembly or such procession is to be permitted
to take place, and otherwise giving effect to this section:
Provided that no fee shall be charged on the application for, or
grant of any such license.
(4) Music in the streets:- He may also regulate the extent to
which music may be used in streets on the occasion of festivals and
ceremonies.
3OA. Powers with regard to assemblies and processions violating
conditions of licence:- (l) Any Magistrate or District
Superintendent of Police or Assistant District Superintendent of
Police or Inspector of Police or any police-officer in charge of a
station may stop any procession which violates the conditions of a
license granted under the last foregoing section, and may order it
or any assembly, which violates any such conditions, as aforesaid,
to disperse.
(2) Any procession or assembly which neglects or refuses to obey
any order given under the last preceding sub-section, shall be
deemed to be an unlawful assembly.
31. Police to keep order on public roads, etc:- It shall be the
duty of the police to keep order on the public roads, and in the
public streets, thoroughfares, ghats and landing places, and at all
other places of public resort, and to prevent obstruction on the
occasions of assemblies and processions on the public roads and in
the public streets, or in the neighbourhood of places of worship,
during the time of public worship, and in any case when any road,
street, thoroughfare, ghat or landing-place may be thronged or may
be liable to be obstructed.
It has been provided that the police shall be punished for being
cowardice.
CRIMINAL PROCEDURE CODE, 1973
CHAPTER X
MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY,
A.-Unlawful assembliesS. 129. Dispersal of assembly by use of
civil force. (1) Any Executive Magistrate or officer in charge of a
police station or, in the absence of such officer in charge, any
police officer, not below the rank of a sub-inspector, may command
any unlawful assembly, or any assembly of five or more persons
likely to cause a disturbance of the public peace, to disperse ;
and it shall thereupon be the duty of the members of such assembly
to disperse accordingly.
(2)If, upon being so commanded, any such assembly does not
disperse, or if, without being so commanded, it conducts itself in
such a manner as to show a determination not to disperse, any
Executive Magistrate or police officer referred to in sub-section
(1), may proceed to disperse such assembly by force, and may
require the assistance of any male person, not being an officer or
member of the armed forces and acting as such, for the purpose of
dispersing such assembly, and, if necessary, arresting and
confining the persons who form part of it, in order to disperse
such assembly or that they may be punished according to law.
S. 130.Use of armed forces to disperse assembly. (1) If any such
assembly cannot be otherwise dispersed, and if it is necessary for
the public security that it should be dispersed, the Executive
Magistrate of the highest rank who is present may cause it to be
dispersed by the armed forces.
(2)Such Magistrate may require any officer in command of any
group of persons belonging to the armed forces to disperse the
assembly with the help of the armed forces under his command, and
to arrest and confine such persons forming part of it as the
Magistrate may direct, or as it may be necessary to arrest and
confine in order to disperse the assembly or to have them punished
according to law.
(3)Every such officer of the armed forces shall obey such
requisition in such manner as he thinks fit, but in so doing he
shall use as little force, and do as little injury to person and
property, as may be consistent with dispersing the assembly and
arresting and detaining such persons.
131.Power of certain armed force officers to disperse assembly-
When the public security is manifestly endangered by any such
assembly and no Executive Magistrate can be communicated with, any
commissioned or gazetted officer of the armed forces may disperse
such assembly with the help of the armed forces under his command,
and may arrest and confine any persons forming part of it, in order
to disperse such assembly or that they may be punished according to
law; but if, while he is acting under this section, it becomes
practicable for him to communicate with an Executive Magistrate, he
shall do so, and shall thenceforward obey the instructions of the
Magistrate, as to whether he shall or shall not continue such
action.
132.Protection against prosecution for acts done under preceding
sections. (1) No prosecution against any person for any act
purporting to be done under section 129, section 130 or section 131
shall be instituted in any Criminal Court except-
(a) with the sanction of the Central Government where such
person is an officer or member of the armed forces ;
(b) with the sanction of the State Government in any other
case.
(2) (a) No Executive Magistrate or police officer acting under
any of the said sections in good faith ;
(b) no person doing any act in good faith in compliance with a
requisition under section 129 or section 130 ;
(c) no officer of the armed forces acting under section 131 in
good faith ;
(d) no member of the armed forces doing any act in obedience to
any order which he was bound to obey; shall be deemed to have
thereby committed an offence.
(3) In this section and in the preceding sections of this
Chapter,-
(a) the expression "armed forces" means the military, naval and
air forces, operating as land forces and includes any other Armed
Forces of the Union so operating;
(b) "officer", in relation to the armed forces, means a person
commissioned, gazetted or in pay as an officer of the armed forces
and includes a junior commissioned officer, a warrant officer, a
petty officer, a non-commissioned officer and a non-gazetted
officer;
(c) "member", in relation to the armed forces, means a person in
the armed forces other than an officer.
The petitioner seeks leave of this Honble Court to place some
instances where the police restrained from taking appropriate
action and lost life while protecting the majesty of law
A. On 12 of February, 2013 one Police Officer was killed by
unruly mob in Kolkata and Police could not prevent the incident.B.
One Deputy Superintendent of Police was killed in Pratapgarh UP and
Police personnel had to run away, may be due to fear of political
or legal prosecutions.C. G. Krishnaigh IAS and then DM Gopalganj,
Bihar was killed by unruly mob in the presence of hundreds of
police personnel and finally only one person was convicted, Police
remained mute spectators perhaps due to political or administrative
commands.D. More than 27 police personnel were injured and Police
Vehicles destroyed by mob on 03.06.2011 in Forbeshganj, Bihar.
Police opened fire and 4 persons died. Writ Petition (Crl) No.
195/2011 seeking CBI enquiry against the Police action, several
complaint cases have been filed and pending against injured police
personnel. E. One Police personnel died during the Delhi Gang rape
agitation in December, 2012F. In the first week of January, 2013 49
Police Personnel were injured in Mumbai by unruly mob and police
could not take appropriate measure perhaps again due to fear of
loosing their jobs.The media reporting, the prima-facie opinion of
the executive or suo-motu cognizance of the incident on the basis
of media reporting is violative of statutory and constitutional
rights of the Police. It not only demoralizes the entire police
force but at the same time encourages the unruly people to become
more violent against the helpless police.
It is now a settled principle of law after the decision of this
Honble Court in the case of A.R. Antulay Vs R.S. Nayak reported as
1988 (2) SCC 602 that even the judicial decisions can be violative
of fundamental rights. The court cannot make an order inconsistent
with the fundamental rights guaranteed under Part-III of the
constitution.
The condition and predicament of the Police has been recognized
in several binding decisions. The nature of agitation and conduct
of agitators have changed. The action of police cannot be viewed on
the basis of media reporting. The observation in the judgment of
this Honble Court reported as 1997 (1) SCC 416, D.K. Basu v. State
of W.B is worth mentioning:-
Para 31:- There is one other aspect also which needs our
consideration. We are conscious of the fact that the police in
India have to perform a difficult and delicate task, particularly
in view of the deteriorating law and order situation, communal
riots, political turmoil, student unrest, terrorist activities, and
among others the increasing number of underworld and armed gangs
and criminals. Many hardcore criminals like extremists, terrorists,
drug peddlers, smugglers who have organised gangs, have taken
strong roots in the society. It is being said in certain quarters
that with more and more liberalisation and enforcement of
fundamental rights, it would lead to difficulties in the detection
of crimes committed by such categories of hardened criminals by
soft peddling interrogation. It is felt in those quarters that if
we lay too much of emphasis on protection of their fundamental
rights and human rights, such criminals may go scot-free without
exposing any element or iota of criminality with the result, the
crime would go unpunished and in the ultimate analysis the society
would suffer. The concern is genuine and the problem is real. To
deal with such a situation, a balanced approach is needed to meet
the ends of justice. This is all the more so, in view of the
expectation of the society that police must deal with the criminals
in an efficient and effective manner and bring to book those who
are involved in the crime. The cure cannot, however, be worst than
the disease itself.
It has been observed that freedom of Individual must yield to
security of State. The security of State is ensured by the rule of
law. The police actions, particularly dealing with unlawful
assembly are always in open and putting them to adverse inference
or conclusion on the basis of selective media reporting would
amount to violation of their fundamental rights. The judgment
reported as 2009 (5) SCC 212 had proposed certain guidelines for
such agitation for the States.
The petitioner also prays for issuance of mandamus to enforce
the statutory provisions for the protection of Police from
administrative action and judicial inferences without following the
principle of natural justice.
It has been held in several binding decisions that Court can
issue Mandamus to enforce the law and also guidelines in the
absence of statutory framework. It has been reiterated in judgment
reported as 2009 (5) SCC 212 at para 19 & 25.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL 3URISDICTION
WRIT PETITION (CIVIL) NO.____OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
Manish Kumar
Petitioner
Versus
Union of India and Others
Respondents
1. Manish Kumar, Advocate
11/9 Pant Nagar,
Jangpura Extension
New Delhi-14. Petitioner No. 1Versus
1. Union of India, Through its Secretary, Ministry of Law and
Justice,
4th Floor, A Wing, Rajendra Prasad Road,
Shastri Bhavan,
New Delhi-110001
Respondent No. 1
2.State of Arunachal Pradesh, Through its Chief Secretary,
Arunachal Pradesh Civil Secretariat,
Itanagar- 791111 Respondent No. 23. State of Andhra Pradesh,
Through its Chief Secretary, Secretariat
Building,Hyderabad-500022
Respondent No. 34.State of Assam,
Through its Chief Secretary,
Assam Sachivalaya, Block C, 3 Floor,
Dispur, Guwahati-781006 Respondent No. 45.State of Bihar,
Through its Chief Secretary,
Old Secretariat,
Patna-800015 Respondent No. 56.State of Chhattisgarh,
Through its Chief Secretary,
DKS Bhawan, Mantralaya
Raipur-492001 Respondent No. 67.State of Goa, Through its Chief
Secretary, Secretariat, Porvoriam,
Goa-403001. Respondent No. 78. State of Gujarat,
Through its Chief Secretary,
Block No.1, 3 Floor
New Sachivalaya Complex,
Gandhinagar-382010 Respondent No. 89. State of Haryana, Through
its Chief Secretary, Harayana Civil Secretariat,
Chandigarh-160009
Respondent No. 910.State of Himachal Pradesh,
Through its Chief Secretary,
Secretariat, Shimla-171001
Respondent No. 1011.State of Jammu and Kashmir, Through its
Chief Secretary, Civil Secretariat, Shrinagar-190001 Respondent No.
1112.State of Jharkhand, Through its Chief Secretary, Secretariat,
Ranchi-834004 Respondent No. 1213. State of Karnataka,
Through its Chief Secretary,
3rd Floor, R. No. 320,
Vidhan Sauda, Secretariat,
Bangalore-560001 Respondent No. 1314. State of Kerala, Through
its Chief Secretary, Secretariat, Thiruvananthapuram-695 001
Respondent No. 1415. State of Madhya Pradesh, Through its Chief
Secretary, Mantralaya, Vallabh Bhawan,
Bhopal-462004Respondent No. 1516. State of Maharashtra, Through
its Chief Secretary,
Room No.518, 5th Floor,
Main Building Mantralaya,Mumbai-400032 Respondent No. 1617.State
of Manipur, .
Through its Chief Secretary,
Room No.171, South Block,
Secretariat,
Imphal-795001 Respondent No. 1718.State of Meghalaya,
Through its Chief Secretary,
Meghalaya Civil Secretariat,
Shillong-793001 Respondent No. 1819. State of Mizoram, Through
its Chief Secretary, Block C, Civil Secretariat,
Aizawl-796001Respondent No. 1920.State of Nagaland, Through its
Chief Secretary, Nagaland Civil Secretariat,
Kohima-790001 Respondent No. 2021. State of Orissa,
Through its Chief Secretary,
General Admn. Dept.,
Orrisa Secretariat,
Bhubaneshwar-751001 Respondent No. 2122.State of Punjab, Through
its Chief Secretary, Punjab Civil Secretariat,
Chandigarh-160001 Respondent No. 2223. State of Rajasthan,
Through its Chief Secretary, Secretariat, Jaipur-302001 Respondent
No. 2324.State of Sikkim, Through its Chief Secretary, Tashiling
Secretariat,
Gangtok -737101 Respondent No. 2425. State of Tamilnadu, Through
its Chief Secretary, Secretariat, Chennai-600009 Respondent No.
2526. State of Tripura, Through its Chief Secretary, Civil
Secretariat, Agaratala-799001 Respondent No. 2627. State of
Uttrakhand, Througt its Chief Secretary, 4, Subhash Road,
Secretariat, Dehradun-248001 Respondent No.
2728.StateofUttarPradesh,
Through its Chief Secretary,
Lal Bahadur Shastri Bhavn,
UP Secretariat,
Lucknow-226001 Respondent No. 2829.State of West Bengal,
Through its Chief Secretary,
Secretariat, Writers Building
Kolkata-700001
Respondent No. 2930. Union Territory of Andarnan Nicobar,
Through its Chief Secretary, Secretariat, Port Blair,
Andaman -744101 Respondent No. 3031. Union Territory of
Chandigarh,Through its Adviser to the Administrator,
Punjab Raj Bhawan, Sector-6
Chandigarh-160017Respondent No. 3132. Union Territory of Dadar
Nagar Haveli, Through its Administrator, Secretariat,
Silvassa-396230 Respondent No. 3233. Union Territory of Daman and
Diu, Through its Administrator, Fort Area, Secretariat,
Moti Daman-396220 Respondent No. 3334. Union Territory of
Lakshadweep, Through its Administrator, Secretariat,
Kavaratti-682555 Respondent No. 3435. Union Territory of
Pondicherry,
Through its Chief Secretary,
Puducherry Administration, Chief Secretariat,
1 Beach Road, U.T. of Puducherry,
Puducherry- 605001 Respondent No. 3536. National Capital
Territory of Delhi, Through its Chief Secretary, Delhi Secretariat,
I.P. Estate, New Delhi- 110002 Respondent No. 36WRIT PETITION UNDER
ARTICLE 32
OF THE CONSTITUTION OF INDIATO
THE HONBLE THE CHIEF JUSTICE OF INDIA AND HISHONBLE COMPANION
JUSTICES OF THE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH
1. The Petitioners have approached this Honble Court, under
Article 32 of the Constitution, on account of the grave situation
that has been created and further precipitated by administrative
and judicial act of the State, resulting in the deprivation of the
fundamental rights of the police in the country as guaranteed under
Articles 14 and 21 of the Constitution of India. In essence, the
petitioners seek certain directions/orders/ guidelines from this
Honble Court in relation to the issues involved in the present writ
petition.2. That the petitioner has not approached any competent
authority for the relief prayed for in the writ petition.
3. That the petitioner is a practicing lawyer in the Supreme
Court of India, enrolled with Bihar Bar Counsel and a member of
Supreme Court Bar Association. The public interest litigation is
being filed in view of the facts and circumstances mentioned in the
writ petition. The Police Force (Restriction of Rights) Rule 1966
restricts the right of the police provided under Article 19 (1) (c)
of the Constitution. The petitioner has preferred the writ petition
for the protection of fundamental rights of the police personnel
and for issuance of appropriate directions as prayed for in the
writ petition.
4. That the interest of general public is seriously being
affected due to declining morale of police personnel and
unwarranted political or administrative interferences in
controlling the daily violent agitations at public places affecting
the normal life and causing serious threat to private and public
property.
5. That the petitioner is seriously concerned with the recent
incidents of attack on police and adverse administrative and
judicial presumptions against the police on the basis of selective
media reportings.
6. That the police hesitate to take actions as per law due to
threat to punishment or prosecution and as a result in every
agitation police personnel are killed or injured and huge damages
are caused to private and public property. 7. That the statutory
provisions and the various decisions of this Honble Court are being
ignored to deal with and bring a balance between the right to
protest and limitations thereon. The security of the State is being
compromised due to political, administrative and judicial
presumptions against every police action.
8. That Suo-motu cognizance was taken of the incidents regarding
large scale destruction of public property during gujjar agitation
and failure of the police to take preventive action in the State of
Haryana, Uttar Pradesh and Delhi. It was registered as WP (Crl) No.
77/2007. The order dated 05.06.2007 was reported as 2007 (4) SCC
474. The writ petition was finally decided and reported as 2009 (5)
SCC 212. The judgment reported as2007 (4) SCC 474 is annexed as
ANNEXURE-P-1. And the judgment reported as 2009 (5) SCC 212 is
annexed as ANNEXURE-P-2
9. That Suo-motu cognizance of incident regarding police action
in Taran Taran, Punjab and Patna, Bihar. It has been registered as
WP (C) 139/2013. A true copy of the order dated 06.03.2013 is
annexed as ANNEXURE-P-3.
10. That the police are being targeted in the absence of
appropriate action have lost life while protecting the majesty of
law. On 12 of February, 2013 one Police Officer was killed by
unruly mob in Kolkata and Police could not prevent the incident.
One Deputy Superintendent of Police was killed in Pratapgarh UP and
Police personnel had to run away. More than 27 police personnel
were injured and Police Vehicles destroyed by mob on 03.06.2011 in
Forbeshganj, Bihar. One Police personnel died during the Delhi Gang
rape agitation in December, 2012. In the first week of January,
2013 49 Police Personnel were injured in Mumbai by unruly mob and
police could not take appropriate measure perhaps again due to fear
of losing their jobs.
11. The media reporting, the prima-facie opinion of the
executive or suo-motu cognizance of the incident on the basis of
media reporting is violative of statutory and constitutional rights
of the Police. It not only demoralizes the entire police force but
at the same time encourages the unruly people to become more
violent against the helpless police. 12. That in the decision
reported as 1988 (2) SCC 602 this Honble Court relied upon legal
proposition decided in the case of Prem Chand Garg Vs. Excise
Commissioner reported as AIR 1963 SC 996. The observation of this
Honble Court is quoted (para 50) Though Article 142(1) empowers the
Supreme Court to pass any order to do complete justice between the
parties, the court cannot make an order inconsistent with the
fundamental rights guaranteed by Part III of the Constitution. No
question of inconsistency between Article 142(1) and Article 32
arose. Gajendragadkar, J., speaking for the majority of the judges
of this Court said that Article 142(1) did not confer any power on
this Court to contravene the provisions of Article 32 of the
Constitution. Nor did Article 145 confer power upon this Court to
make rules, empowering it to contravene the provisions of the
fundamental right. At page 899 of the Reports, Gajendragadkar, J.,
reiterated that the powers of this Court are no doubt very wide and
they are intended and will always be exercised in the interests of
justice. But that is not to say that an order can be made by this
Court which is inconsistent with the fundamental rights guaranteed
by Part III of the Constitution. It was emphasised that an order
which this Court could make in order to do complete justice between
the parties, must not only be consistent with the fundamental
rights guaranteed by the Constitution, but it cannot even be
inconsistent with the substantive provisions of the relevant
statutory laws (emphasis supplied).
GROUNDS
The writ petition has been filed in public interest on the
following grounds:A. Because the violation of fundamental rights of
the Police has caused serious threat to security of State, general
public, private and public property.
B. Because the constitutional provisions, rule of law, judicial
decisions and statutory provisions are being violated due to
administrative and judicial presumptions against the validity of
all the police actions to protect the life and property of people
of India and Police personnel.C. Because In Nawabkhan Abbaskhan v.
State of Gujarat 1974 (2) SCC 121 it was held that an order passed
without hearing a party which affects his fundamental rights, is
void and as soon as the order is declared void by a court, the
decision operates from its nativity. It is proper for this Court to
act ex debito justitiae, to act in favour of the fundamental rights
of appellant.
D. Because in the decision of A.R. Antulay v. R.S. Nayak, (1988)
2 SCC 602, It has been held that the principle of finality on which
the article proceeds applies to both judgments and orders made by
the Supreme Court. But directions given per incuriam and in
violation of certain constitutional limitations and in derogation
of the principles of natural justice can always be remedied by the
court ex debito justitiae. Shri Jethmalani's submission was that ex
debito justitiae, these directions could not be recalled. We are
unable to agree with this submission.
E. Because this Honble Court can issue writ of mandamus to
enforce the statutory provisions and in the absence of same can
issue appropriate guidelines to protect the rights of the
citizen.
F. Because the trend of attack on Police has reached to such a
level that in almost every mass agitation, however, small or big it
may be, the police personnel are targeted, injured and killed. The
police vehicles are set on fire and the public properties are
damaged. In the entire event the police become ultimate victim. If
the police take lawful actions, they are subjected to
administrative or political harassments. They are transferred, put
to suspension, dismissed or ranked irresponsible for doing their
statutory and constitutional duties. If the police fail to take
action the same consequence follows.G. Because the police forces in
India are most vulnerable, ill-trained, over-worked, strained and
subjected to various commands and duties. Despite all adverse
working conditions they are subjected to mob violence, media trial
and finally administrative or judicial actions.
H. Because several statutory provisions as contained in Criminal
Procedure Code, 1973, India Penal Code, 1860, Police Act. 1861, etc
are ignored or violated while taking action or deciding the
validity of police action. Any prima-facie opinion or punitive
action without detailed enquiry causes serious prejudices and
violates the statutory & fundamental rights of the Police
personnel. The presumption that the police action was unwarranted
or police have acted in a barbaric manner seriously infringes the
fundamental and statutory rights of the police. I. Because the
media reporting, the prima-facie opinion of the executive or
suo-motu cognizance of the incident on the basis of media reporting
is violative of statutory and constitutional rights of the Police.
It not only demoralizes the entire police force but at the same
time encourages the unruly people to become more violent against
the helpless police.
J. Because the court cannot make an order inconsistent with the
fundamental rights guaranteed under Part-III of the
constitution.
K. Because the condition and predicament of the Police has been
recognized in several binding decisions. The nature of agitation
and conduct of agitators have changed. The action of police cannot
be viewed on the basis of media reporting. The observation in the
judgment of this Honble Court reported as 1997 (1) SCC 416, D.K.
Basu v. State of W.B is being ignored.
L. Because the freedom of Individual must yield to security of
State.M. Because the fundamental rights of the police and security
of the general people is being compromised in view of the facts and
circumstances mentioned in the writ petition.
Prayer
The petitioner therefore prays for issuance of appropriate
writ/order/direction by way of:
A. Writ of mandamus & certiorari against the administrative
and judicial decisions violating the various Fundamental Rights
guaranteed under the Constitution.B. Order or Direction for the
enforcement of statutory provisions for the protection of rights of
Police and general public from violent agitations causing damage to
life and property.
C. Order or Direction restraining the Executive and Judiciary
from drawing a presumption against the action of police acting
under the constitutional and statutory obligations.D. Order or
Directions to the Union of India, all the State and Union
Territories to sensitize and modernize the police force to deal
with present situation in effective manner.
E. Order/guidelines to deal with the agitations as suggested in
the decision reported as 2009 (5) SCC 212.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IS DUTY BOUND
SHALL EVER PRAY.
DRAWN & FILED BY
MANISH KUMAR
PETITIONER IN PERSON
DRAWN ON;
PLACE;
