In Re:Destruction of
Public & Pvt. Prop. Vs. State of A.P. & Ors.  INSC 781 (16 April
IN THE SUPREME COURT
OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) NO. 77 OF 2007 In
Re: Destruction of Public & Private Properties ....Petitioners Versus State
of A.P. and Ors. ....Respondents (With W.P. (Crl.) No.73 of 2007)
Dr. ARIJIT PASAYAT,
a serious note of various instances where there was large scale destruction of
public and private properties in the name of agitations, bandhs, hartals and
the like, suo motu proceedings were initiated by a Bench of this Court on
5.6.2007. Dr. Rajiv Dhawan, Senior counsel of this Court agreed to act as
Amicus Curiae. After perusing various reports filed, two Committees were
appointed; one headed by a retired Judge of this Court Justice K.T. Thomas. The
other members of this Committee were Mr. K. Parasaran, Senior Member of the
legal profession, Dr. R.K. Raghvan, Ex-Director of CBI, and Mr. G.E.
Vahanavati, the Solicitor General of India and an officer not below the rank of
Additional Secretary of Ministry of Home Affairs and the Secretary of
Department of Law and Justice, Government of India. The Other Committee was
headed by Mr. F.S. Nariman, a Senior Member of the Legal Profession. The other
members of the Committee were the Editor-in-Chief of the Indian Express, the
Times of India and Dainik Jagaran, Mr. Pranay Roy of NDTV and an officer not
below the rank of Additional Secretary of Ministry of Home Affairs, Information
and Broadcasting and Secretary, Department of Law and Justice, Government of
India, Mr. G.E. Vahanavati, Solicitor General and learned Amicus Curiae.
reports have been submitted by the Committees. The matter was heard at length.
The recommendations of the Committees headed by Justice K.T. Thomas and Mr.
F.S. Nariman have been considered.
suggested guidelines have also been submitted by learned Amicus Curiae.
report submitted by Justice K.T. Thomas Committee has made the following
(i) The PDPP Act must
be so amended as to incorporate a rebuttable presumption (after the prosecution
established the two facets) that the accused is guilty of the offence.
(ii) The PDPP Act to
contain provision to make the leaders of the organization, which calls the
direct action, guilty of abetment of the offence.
(iii) The PDPP Act to
contain a provision for rebuttable presumption.
(iv) Enable the
police officers to arrange video graph of the activities damaging public
have been made on the basis of the following conclusions after taking into
consideration the materials.
In respect of (i)
"According to this Committee the prosecution should be required to prove,
first that public property has been damaged in a direct action called by an
organization and that the accused also participated in such direct action. From
that stage the burden can be shifted to the accused to prove his innocence.
Hence we are of the
view that in situations where prosecution succeeds in proving that public
property has been damaged in direct actions in which accused also participated,
the court should be given the power to draw a presumption that the accused is
guilty of destroying public property and that it is open to the accused to
rebut such presumption. The PDPP Act may be amended to contain provisions to
In respect of (ii)
Next we considered how far the leaders of the organizations can also be caught
and brought to trial, when public property is damaged in the direct actions
called at the behest of such organizations. Destruction of public property has
become so rampant during such direct actions called by organizations. In almost
all such cases the top leaders of such organisations who really instigate such
direct actions will keep themselves in the background and only the ordinary or
common members or grass root level followers of the organisation would directly
participate in such direct actions and they alone would be vulnerable to
prosecution proceedings. In many such cases, the leaders would really be the
main offenders being the abettors of the crime. If they are not caught in the
dragnet and allowed to be immune from prosecution proceedings, such direct
actions would continue unabated, if not further escalated, and will remain a
constant or recurring affair. Of course, it is normally difficult to prove
abetment of the offence with the help of direct evidence. This flaw can be
remedied to a great extent by making an additional provision in PDPP Act to the
effect that specified categories of leaders of the organization which make the
call for direct actions resulting in damage to public property, shall be deemed
to be guilty of abetment of the offence. At the same time, no innocent person,
in spite of his being a leader of the organization shall be made to suffer for
the actions done by others. This requires the inclusion of a safeguard to
protect such innocent leaders."
In respect of (iii)
"After considering various aspects to this question we decided to
recommend that prosecutions should be required to prove (i) that those accused
were the leaders or office bearers of the organisation which called out the
direct actions and (ii) that public property has been damaged in or during or
in the aftermath of such direct actions. At that stage of trial it should be
open to the court to draw a presumption against such persons who are arraigned
in the case that they have abetted the commission of offence. However, the
accused in such case shall not be liable to conviction if he proves that (i) he
was in no way connected with the action called by his political party or that
(ii) he has taken all reasonable measures to prevent causing damage to public
property in the direct action called by his organisation."
In respect of (iv)
"The Committee considered other means of adducing evidence for averting
unmerited acquittals in trials involving offences under PDPP Act. We felt that
one of the areas to be tapped is evidence through videography in addition to contemporaneous
material that may be available through the media, such as electronic media.
With the amendments brought in the Evidence Act, through Act 21 of 2000
permitting evidence collected through electronic devices as admissible in
evidence, we wish to recommend the following:
i) If the officer in
charge of a police station or other law enforcing agency is of opinion that any
direct action, either declared or undeclared has the potential of causing
destruction or damage to public property, he shall avail himself of the
services of video operators. For this purpose each police station shall be empowered
to maintain a panel of local video operators who could be made available at
(ii) The police
officer who has the responsibility to act on the information that a direct
action is imminent and if he has reason to apprehend that such direct action
has the potential of causing destruction of public property, he shall
immediately avail himself of the services of the videographer to accompany him
or any other police officer deputed by him to the site or any other place
wherefrom video shooting can conveniently be arranged concentrating on the
person/ persons indulging in any acts of violence or other acts causing
destruction or damage to any property.
iii) No sooner than
the direct action subsides, the police officer concerned shall authenticate the
video by producing the videographer before the Sub Divisional or Executive
Magistrate who shall record his statement regarding what he did.
The original tapes or
CD or other material capable of displaying the recorded evidence shall be
produced before the said Magistrate. It is open to the Magistrate to entrust
such CD/material to the custody of the police officer or any other person to be
produced in court at the appropriate stage or as and when called for.
The Committee felt
that offenders arrested for damaging public property shall be subjected to a
still more stringent provision for securing bail. The discretion of the court
in granting bail to such persons should be restricted to cases where the court
feels that there are reasonable grounds to presume that he is not guilty of the
offence. This is in tune with Section 437 of the Code of Criminal Procedure,
1973 and certain other modern Criminal Law statutes. So we recommend that
Section 5 may be amended for carrying out the above restriction.
Thus we are of the
view that discretion to reduce the minimum sentence on condition of recording
special reasons need not be diluted. But, instead of "reasons" the
court should record "special reasons" to reduce the minimum sentence
However, we felt that
apart from the penalty of imprisonment the court should be empowered to impose
a fine which is equivalent to the market value of the property damaged on the
day of the incident. In default of payment of fine, the offender shall undergo
imprisonment for a further period which shall be sufficient enough to deter him
from opting in favour of the alternative imprisonment."
according to us are wholesome and need to be accepted.
To effectuate the
modalities for preventive action and adding teeth to enquiry/investigation
following guidelines are to be observed:
As soon as there is a
(I) The organizer
shall meet the police to review and revise the route to be taken and to lay
down conditions for a peaceful march or protest;
including knives, lathis and the like shall be prohibited;
(III) An undertaking
is to be provided by the organizers to ensure a peaceful march with marshals at
each relevant junction;
(IV) The police and
State Government shall ensure videograph of such protests to the maximum extent
(V) The person in
charge to supervise the demonstration shall be the SP (if the situation is
confined to the district) and the highest police officer in the State, where
the situation stretches beyond one district;
(VI) In the event
that demonstrations turn violent, the officer-in-charge shall ensure that the
events are videographed through private operators and also request such further
information from the media and others on the incidents in question.
(VII) The police
shall immediately inform the State Government with reports on the events,
including damage, if any, caused .
(VIII) The State
Government shall prepare a report on the police reports and other information
that may be available to it and shall file a petition including its report in
the High Court or Supreme Court as the case may be for the Court in question to
take suo motu action.
So far as the
Committee headed by Mr. F.S. Nariman is concerned the recommendations and the
views are essentially as follows:
"There is a
connection between tort and crime - the purpose of the criminal law is to
protect the public interest and punish wrongdoers, the purpose of tort-law is
to vindicate the rights of the individual and compensate the victim for loss,
injury or damage suffered by him: however - the distinction in purpose between
criminal law and the law of tort is not entirely crystal-clear, and it has been
developed from case-to-case. The availability of exemplary damages in certain
torts (for instance) suggest an overtly punitive function - but one thing is
tort and criminal law
have always shared a deterrent function in relation to wrongdoing.
The entire history of
the development of the tort law shows a continuous tendency, which is naturally
not uniform in all common law countries, to recognise as worthy of legal
protection, interests which were previously not protected at all or were
infrequently protected and it is unlikely that this tendency has ceased or is
going to cease in future. There are dicta both ancient and modern that
categories of tort are not closed and that novelty of a claim is no defence.
But generally, the judicial process leading to recognition of new tort situations
is slow and concealed for judges are cautious in making innovations and they
seldom proclaim their creative role. Normally, a new principle is judicially
accepted to accommodate new ideas of social welfare or public policy only after
they have gained their recognition in the society for example in extra judicial
writings and even then the decision accepting the new principle is supported
mainly by expansion or restriction of existing principles which "gradually
receive a new content and at last a new form".
whether jointly or otherwise, are part of a protest which turns violent,
results in damage to private or public property, the persons who have caused
the damage, or were part of the protest or who have organized will be deemed to
be strictly liable for the damage so caused, which may be assessed by the
ordinary courts or by any special procedure created to enforce the right.
This Committee is of
the view that it is in the spirit of the observation in M.C. Mehta v. Union of India
(1987 (1) SCC 395) that this Court needs to lay down principles on which
liability could be fastened and damages assessed in cases in which due to
behaviour of mobs and riotous groups public and private property is vandalized
and loss of life and injury is occasioned to innocent persons. These are
clearly "unusual situations", which have arisen and likely to arise
in future and need to be provided for in the larger interest of justice.
It is on the
principles set out above that (it is suggested) that the Hon'ble Court should
frame guidelines and venture to evolve new principles (of liability) to meet
situations that have already arisen in the past and are likely to arise again
in future, so that speedy remedies become available to persons affected by loss
of life, injury and loss of properties, public or private, as a result of riots
and civil commotions.
Damages in the law of
torts in India include (a) damages based on the concept of restituto in
interregnum to enable total recompense; and (b) exemplary damages"
The basic principles
as suggested by Nariman Committee are as follows which we find to be
(1) The basic
principle for measure of damages in torts (i.e. wrongs) in property is that
there should be `restituto in interregnum' which conveys the idea of
(2) Where any injury
to property is to be compensated by damages, in settling the sum of money to be
given for reparation by way of damages the Court should as nearly as possible
get at that sum of money which will put the party who has suffered, in the same
position as he would have been in if he had not sustained the wrong for which
he is now getting his compensation or reparation.
(3) In this branch of
the law, the principle of restitution in interregnum has been described as the
"dominant" rule of law. Subsidiary rules can only be justified if
they give effect to that rule.
In actions in tort
where damages are at large i.e. not limited to the pecuniary loss that can be
specifically proved, the Court may also take into account the defendant's
motives, conduct and manner of committing the tort, and where these have
aggravated the plaintiff's damage e.g. by injuring his proper feelings of
dignity, safety and pride - aggravated damages may be awarded.
are designed to compensate the plaintiff for his wounded feelings-they must be
distinguished from exemplary damages which are punitive in nature and which
(under English Law) may be awarded in a limited category of cases.
damages" has been a controversial topic for many years. Such damages are
not compensatory but are awarded to punish the defendant and to deter him and
others from similar behaviour in the future. The law in England (as restated in
Rookes v. Barnard affirmed in Cassell v. Broome) is that such damages are not
generally allowed. In England they can only be awarded in three classes of
cases (i) where there is oppressive, arbitrary or unconstitutional action by
servants of the Government; (ii) where the defendants conduct has been
calculated by him to make a profit for himself which may well exceed the
compensation payable to the claimant; and (iii) where such damages are provided
In the decision in
Kuddus v. Chief Constable of Leicestershire: (2001) UKHL 29 - the most recent
judgment of the House of Lords, the Law Lords did not say that in the future
the award of exemplary damages should be restricted only in the cases mentioned
in Rookes v. Barnard  1 All ER 367 (as affirmed in Cassell v. Broome
 1 All ER 801.) Lord Nicholls in his speech at page 211 stated that:
of the conduct constituting the Court's discretionary jurisdiction to award
exemplary damages is conduct which was such as to be an outrageous disregard of
the claimant's rights. "
In this committee's
view, the principle that Courts in India are not limited in the law of torts
merely to what English Courts say or do, is attracted to the present situation.
This Committee is of the view that this Hon'ble Court should evolve a principle
of liability - punitive in nature - on account of vandalism and rioting leading
to damages/destruction of property public and private. Damages must also be
such as would deter people from similar behaviour in the future: after all this
is already the policy of the law as stated in the Prevention of Damage to
Property Act, 1984, and is foreshadowed in the order of this Hon'ble Court
dated 18-06-2007 making the present reference.
In a Winfield and
Jolowicz (on Tort) Seventeenth Edition (at pages 948-949) the authors set out
the future of exemplary damages by quoting from the decision in Kuddeus v. CC
Leicestershie (supra) where two Law Lords Lord Nicholls and Lord Hutton
expressed the view that such damages might have a valuable role to play in
dealing with outrageous behaviour. The authors point out that the boundaries between
the civil and criminal law are not rigid or immutable and the criminal process
alone is not an adequate mechanism to deter willful wrong-doing. The acceptability
of the principle of compensation with punishment appears to have [2004) a AC
628 at 54) where it was felicitously said that "oil and vinegar may not
mix in solution but they combine to make an acceptable salad dressing."
The authors go on to say that exemplary damages certainly enjoy a continuing
vitality in other common law jurisdictions, which, by and large, have rejected
the various shackles imposed on them in England and extended them to other
situations: thus punitive damages was held to be available in Australia
"in cases of "outrageous" acts of negligence.
The Law Commission of
Australia has also concluded - after a fairly evenly balanced consultation-that
exemplary damages should be retained where the defendant "had deliberately
and outrageously disregarded the plaintiffs rights."
In the absence of
legislation the following guidelines are to be adopted to assess damages:
(I) Wherever a mass
destruction to property takes place due to protests or thereof, the High Court
may issue suo motu action and set up a machinery to investigate the damage
caused and to award compensation related thereto.
(II) Where there is
more than one state involved, such action may be taken by the Supreme Court.
(III) In each case,
the High Court or Supreme Court, as the case may be, appoint a sitting or
retired High Court judge or a sitting or retired District judge as a Claims
Commissioner to estimate the damages and investigate liability.
(IV) An Assessor may
be appointed to assist the Claims Commissioner.
(V) The Claims
Commissioner and the Assessor may seek instructions from the High Court or
Supreme Court as the case may be, to summon the existing video or other
recordings from private and public sources to pinpoint the damage and establish
nexus with the perpetrators of the damage.
(VI) The principles
of absolute liability shall apply once the nexus with the event that
precipitated the damage is established.
(VII) The liability
will be borne by the actual perpetrators of the crime as well as organisers of
the event giving rise to the liability - to be shared, as finally determined by
the High Court or Supreme Court as the case may be.
damages may be awarded to an extent not greater than twice the amount of the
damages liable to be paid.
(IX) Damages shall be
(a) damages to public
(b) damages to
(c) damages causing
injury or death to a person or persons;
(d) Cost of the
actions by the authorities and police to take preventive and other actions (X)
The Claims Commissioner will make a report to the High Court or Supreme Court
which will determine the liability after hearing the parties.
of Justice K.T. Thomas Committee and Mr. F.S. Nariman Committees above which
have the approval of this Court shall immediately became operative. They shall
be operative as guidelines.
The power of this
Court also extends to laying down guidelines. In Union of India v. Association
for Democratic Reforms (2002) 5 SCC 294, this Court observed:
"...It is not
possible for this court to give any directions for amending the Act or
statutory Rules. It is for Parliament to amend the Act and the Rules. It is
also established law that no direction can be given, which would be contrary to
the Act and the Rules. However, it is equally settled that in case when the Act
or Rules are silent on a particular subject and the authority implementing the
same has constitutional or statutory power to implement it, the court can
necessarily issue directions or orders on the said subject to fill the vacuum
or void till the suitable law is enacted." (pp.307) This court has issued
directions in large number of cases to meet urgent situations e.g.
7 Lakshmi Kant Pandey
v. Union of India, (1984) 2 SCC 244 7 Vishaka v. State of Rajasthan, (1997) 6
SCC 241 7 Vineet Narain v. Union of India, (1998) 1 SCC 226 ] 7 State of W.B.
v. Sampat Lal, (1985) 1 SCC 317 7 K. Veeraswami (1991) 3 SCC 655 7 Union
Carbide Corporation v. Union of India, (1991) 4 SCC 584 7 Delhi Judicial Service
Assn. v. State of Gujarat, (1991) 4 SCC 406 7 Delhi Development Authority v.
Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622;
7 Dinesh Trivedi,
M.P. v. Union of India, (1997) 4 SCC 306 Common Cause v. Union of India, AIR
1996 SC 929 7 Supreme Court Advocates-on-Record Association v. Union of India;
(1993) 4 SCC 441 7
Positive Mandamus Cases (i) Mandamus to enforce the law The situation in which
a positive mandamus to do a particular act in a particular way, may be broadly
classified in the following manner. First are the broad mandamus cases where
this court has held that the court may issue a positive mandamus to enforce the
law. Thus in Vineet Narain's case (supra) detailed orders were passed for the
investigation of the Hawala transaction cases. It is laid down that positive
directions can be issued where there is a power coupled with a duty. The
situations under which this can happen are numerous. In Commissioner of Police
v. Gordhandas Bhanji AIR 1952 SC 16 at pr.27, quoting from Julius v. Lord Bishop
of Oxford, (1880) 5 A.C. 214, where the court said:
"There may be
something in the nature of the thing empowered to be done, something in the
object for which it is to be done, something in the title of the person or
persons for whose benefit the power is to be exercised, which may couple the
power with a duty, and make the duty of the person in whom the power is
reposed, to exercise that power when called upon to do so. "
In Comptroller and
Auditor General of India v. K S. Jagannathan (AIR 1987 SC 537) the court also
explored the need to issue a positive mandamus where a power was coupled with a
"18. The first
contention urged by learned counsel for the appellants was that the Division
Bench of the High Court could not issue a writ of mandamus to direct a public
authority to exercise its discretion in a particular manner. There is a basic
fallacy underlying this submission-both with respect to the order of the
Division Bench and the purpose and scope of the writ of mandamus. The High
Court had not issued a writ of mandamus. A writ of mandamus was the relief
prayed for by the respondents in their writ petition. What the Division Bench
did was to issue directions to the appellants in the exercise of its
jurisdiction under Article 226 of the Constitution. Under Article 226 of the
Constitution, every High Court has the power to issue to any person or authority,
including in appropriate cases, any government, throughout the territories in
relation to which it exercises jurisdiction, directions, orders, or writs
including writs in the nature of habeas corpus, mandamus, quo warranto and
certiorari or any of them, for the enforcement of the Fundamental Rights
conferred by Part III of the Constitution or for any other purpose. In
Dwarkanath v. IT0 [(1965 3 SCR 536)] this Court pointed out that Article 226 is
designedly couched in a wide language in order not to confine the power
conferred by it only to the power to issue prerogative writs as understood in
England, such wide language being used to enable the High Courts "to reach
injustice wherever it is found" and "to mould the reliefs to meet the
peculiar and complicated requirements of this country." In Hochtief Gammon
v. State of Orissa  1 SCR 667 this Court held that the powers of the
courts in England as regards the control which the Judiciary has over the
Executive indicate the minimum limit to which the courts in this country would
be prepared to go in considering the validity of orders passed by the
government or its officers.
"19. Even had
the Division Bench issued a writ of mandamus giving the directions which it
did, if circumstances of the case justified such directions, the High Court
would have been entitled in law to do so for even the courts in England could
have issued a writ of mandamus giving such directions. Almost a hundred and
thirty years ago, Martin, B., in Mayor of Rochester v. Regina said:
"But, were there
no authority upon the subject, we should be prepared upon principle to affirm
the judgment of the Court of Queen's Bench. That court has power, by the
rerogative writ of mandamus, to amend all errors which tend to the oppression
of the subject or other misgovernment, and ought to he used when the law has
provided no specific remedy, and justice and good government require that there
ought to be one for the execution of the common law or the provisions of a
statute: Comyn's Digest, Mandamus (A).... Instead of being astute to discover
reasons for not applying this great constitutional remedy for error and
misgovernment, we think it our duty to be vigilant to apply it in every case to
which, by any reasonable construction, it can be made applicable. "
enunciated in the above case was approved and followed in King v. Revising
Barrister for the Borough of Hanley. In Hochtief Gammon case this Court pointed
out (at p. 675 of Reports: SCC p. 656) that the powers of the courts in
relation to the orders of the government or an officer of the government who
has been conferred any power under any statute, which apparently confer on them
absolute discretionary powers, are not confined to cases where such power is
exercised or refused to be exercised on irrelevant considerations or on
erroneous ground or mala fide, and in such a case a party would be entitled to
move the High Court for a writ of mandamus. In Padfield v. Minister of
Agriculture, Fisheries and Food, the House of Lords held that where Parliament
had conferred a discretion on the Minister of Agriculture, Fisheries and Food,
to appoint a committee of investigation so that it could be used to promote the
policy and objects of the Agricultural Marketing Act, 1958, which were to be
determined by the construction of the Act which was a matter of law for the
court and though there might be reasons which would justify the Minister in
refusing to refer a complaint to a committee of investigation, the Minister's
discretion was not unlimited and if it appeared that the effect of his refusal
to appoint a committee of investigation was to frustrate the policy of the Act,
the court was entitled to interfere by an order of mandamus. In Halsbury's Laws
of England, 4th Edn., vol. I, para 89, it is stated that the purpose of an
order of mandamus:
"is to remedy
defect 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."
20. There is thus no
doubt that the High Courts in India exercising their jurisdiction under Article
226 have the power to issue a writ of mandamus or a writ in the nature of
mandamus or to pass orders and give necessary directions where the government
or a public authority has failed to exercise or has wrongly exercised the
discretion conferred upon it by a statute or a rule or a policy decision of the
government or has exercised such discretion mala fide or on irrelevant
considerations or by ignoring the relevant considerations and materials or in
such a manner as to frustrate the object of conferring such discretion or the
policy for implementing which such discretion has been conferred. In all such
cases and in any other fit and proper case a High Court can, in the exercise of
its jurisdiction under Article 226, issue a writ of mandamus or a writ in the
nature of mandamus or pass orders and give directions to compel the performance
in a proper and lawful manner of the discretion conferred upon the government
or a public authority, and in a proper case, in order to prevent injustice
resulting to the concerned parties, the court may itself pass an order or give
directions which the government or the public authority should have passed or
given had it properly and lawfully exercised its discretion."
This is especially
important in giving directions in respect of mobilizing:
(a) The Prevention of
Damage to Public Property Act (1984) (b) The Police Act of 1861 and the duties
of the police under the Criminal Procedure Code In D.K. Basu v. State of West
Bengal (1997) 1 SCC 416, directions were given to "Arrest and
Detention" in criminal cases. The Court opined:
no doubt, under a legal duty and has legitimate right to arrest a criminal and
to interrogate him during the investigation of an offence but it must be
remembered that the law does not permit use of third-degree methods or torture
of accused in custody during interrogation and investigation with a view to
solve the crime. End cannot justify the means. The interrogation and
investigation into a crime should be in true sense purposeful to make the
investigation effective. By torturing a person and using third-degree methods,
the police would be accomplishing behind the closed doors what the demands of
our legal order forbid. No society can permit it."
29. How do we check
the abuse of police power? Transparency of action and accountability perhaps
are two possible safeguards which this Court must insist upon. Attention is
also required to be paid to properly develop work culture, training and
orientation of the police force consistent with basic human values.
of the police needs restructuring. The force needs to be infused with basic
human values and made sensitive to the constitutional ethos.
Efforts must be made
to change the attitude and approach of the police personnel handling
investigations so that they do not sacrifice basic human values during
interrogation and do not resort to questionable forms of interrogation. With a
view to bring in transparency, the presence of the counsel of the arrestee at
some point of time during the interrogation may deter the police from using
thirddegree methods during interrogation.
30. Apart from the
police, there are several other governmental authorities also like Directorate
of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central
Reserve Police Force (CRPF), Border Security Force (BSF), the Central
Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies
like the Intelligence Bureau, RAW, Central Bureau of Investigation '(CBI), CID,
Traffic Police, Mounted Police and ITBP, which have the power to detain a
person and to interrogate him in. connection with the investigation of economic
offences, offences under the Essential Commodities Act, Excise and Customs Act,
Foreign Exchange Regulation Act etc. There are instances of torture and death
in custody of these authorities as well. In In Re: Death of Sawinder Singh
Grover, 1995 Supp. (4) SCC 450 (to which Kuldip Singh, J. was a party) this
Court took suo moto notice of the death of Sawinder Singh Grover during his
custody with the Directorate of Enforcement. After getting an enquiry conducted
by the Additional District Judge, which disclosed a prima facie case for
investigation and prosecution, this Court directed the CBI to lodge an FIR and
initiate criminal proceedings against all persons named in the report of the
Additional District judge and proceed against them. The Union of
India/Directorate of Enforcement was also directed to pay a sum of Rs 2 lakhs
to the widow of the deceased by way of ex gratia payment at the interim stage.
Amendment of the relevant provisions of law to protect the interest of arrested
persons in such cases too is a genuine need.
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.
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
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.
Thus the purpose of
the guidelines in D.K. Basu was to effectuate a constitutional right within the
framework of a statute. At paras 33 & 34, it was observed as follows:
"33. There can
be no gainsaying that freedom of an individual must yield to the security of
the State. The right of preventive detention of individuals in the interest of
security of the State in various situations prescribed under different statutes
has been upheld by the courts. The right to interrogate the detenus, culprits
or arrestees in the interest of the nation, must take precedence over an
individual's right to personal liberty. The Latin maxim salus populi supremo
lex (the safety of the people is the supreme law) and salus republicae supremo
lex (safety of the State is the supreme law) coexist and are not only important
and relevant but lie at the heart of the doctrine that the welfare of an
individual must yield to that of the community. The action of the State,
however, must be "right, just and fair". Using, .any form of torture
for extracting any kind of information would neither be "right nor just
nor fair" and, therefore, would be impermissible, being offensive to
Article 21. Such a crime suspect must be interrogated - indeed subjected to
sustained and scientific interrogation - determined in accordance with the
provisions of, law. He cannot, however, be tortured or subjected to third-degree
methods or eliminated with a view to elicit information, extract confession or
derive knowledge about his accomplices, weapons etc. His constitutional right
cannot be abridged in the manner permitted by law, though in the very nature of
things there would be qualitative difference in the method of interrogation of
such a person as compared to an ordinary criminal. Challenge of terrorism must
be met with innovative ideas and approach. State terrorism is no answer to
combat terrorism. State terrorism would only provide legitimacy to
"terrorism". That would be bad for the State, the community and above
all for the rule of law. The State must, therefore, ensure that various
agencies deployed by it for combating terrorism act within the bounds of law
and not become law unto themselves. That the terrorist has violated human
rights of innocent citizens may render him liable to punishment but it cannot
justify the violation of his human rights except in the manner permitted by
law. Need, therefore, is to develop scientific methods of investigation and
train the investigators properly to interrogate to meet the challenge.
34. In addition to
the statutory and constitutional requirements to which we have made a
reference, we are of the view that it would be useful and effective to
structure appropriate machinery for contemporaneous recording and notification
of all cases of arrest and detention to bring in transparency and
accountability. It is desirable that the officer arresting a person should
prepare a memo of his arrest at the time of arrest in the presence of at least
one witness who may be a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. The date and time of
arrest shall be recorded in the memo which must also be countersigned by the
24. On this basis,
detention guidelines were issued. In a sense, the guidelines in the Vineet
Narain case (supra) also purported to be to enforce the statute - without more,
even though the constitutional right to a corrupt free government under Article
21 was involved.
25. There are also
several cases where guidelines may become necessary in the absence of a
26. The justification
for this was given in Vishaka's case (supra) and approved in Vineet Narain's
case (supra) at pr. 52:
8.14,15 "8. Thus, the power of this Court under Article 32 for enforcement
of the fundamental rights and the executive power of the Union have to meet the
challenge to protect the working women from sexual harassment and to make their
fundamental rights meaningful. Governance of the society by the rule of law
mandates this requirement as a logical concomitant of the constitutional
scheme. The exercise performed by the Court in this matter is with this common
perception shared with the learned Solicitor General and other members of the
Bar who rendered valuable assistance in the performance of this difficult task
in public interest.
international conventions and norms are to be read into them in the absence of
enacted domestic law occupying the field when there is no inconsistency between
them. It is now an accepted rule of judicial construction that regard must be
had to international conventions and norms for construing domestic law when
there is no inconsistency between them and there is a void in the domestic law.
The meaning and content of the fundamental rights guaranteed in the
Constitution of India are of sufficient amplitude to encompass all the facets
of gender equality including prevention of sexual harassment or abuse.
Independence of judiciary forms a part of our constitutional scheme. The
international conventions and norms are to be read into them in the absence of
enacted domestic law occupying the field when there is no inconsistency between
them. It is now an accepted rule of judicial construction that regard must be
had to international conventions and norms for construing domestic law when
there is no inconsistency between them and there is a void in the domestic law.
The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Tech
128 ALR 353, has recognised the concept of legitimate expectation of its
observance in the absence of a contrary legislative provision, even in the
absence of a Bill of Rights in the Constitution of Australia.
15. In Nilabati
Behera v. State of Orissa, (1993) 2 SCC 746, a provision in the ICCPR was
referred to support the view taken that 'an enforceable right to compensation
is not alien to the concept of enforcement of a guaranteed right', as a public
law remedy under Article 32, distinct from the private law remedy in torts.
There is no reason why these international conventions and norms cannot,
therefore, be used for construing the fundamental rights expressly guaranteed
in the Constitution of India which embody the basic concept of gender equality
in all spheres of human activity.
Vineet Narain Para 52
"As pointed out in Vishaka it is the duty of the executive to fill the
vacuum by executive orders because its field is coterminous with that of the
legislature, and where there is inaction even by the executive, for whatever reason,
the judiciary must step in, in exercise of its constitutional obligations under
the aforesaid provisions to provide a solution till such time as the
legislature acts to perform its role by enacting proper legislation to cover
27. Thus, as we have
noted, there are a number of cases in which guidelines have been given 7
Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 [Guidelines for
adoption of minor children by foreigners were laid down] 7 Vishaka v. State of
Rajasthan, (1997) 6 SCC 241 [Guidelines were laid down to set up a mechanism to
address the issue of sexual harassment at the workplace] 7 Vineet Narain v.
Union of India, (1998) 1 SCC 226 [Directions were laid down to ensure the
independence of the Vigilance Commission] 7 State of W.B. v. Sampat Lal, (1985)
1 SCC 317 7 K. Veeraswami (1991) 3 SCC 655 7 Union Carbide Corporation v.
Union of India, (1991) 4 SCC 584 7 Delhi Judicial Service Assn. v. State of
Gujarat, (1991) 4 SCC 406 7 Delhi Development Authority v. Skipper Construction
Co. (P) Ltd., (1996) 4 SCC 622;
7 Dinesh Trivedi,
M.P. v. Union of India, (1997) 4 SCC 306 7 Common Cause v. Union of India, AIR
1996 SC 929 [Directions were issued for revamping the system of blood banks in
the country] 28. The present case is one in which guidelines are necessary:
(i) to the police to
enforce statutory duties (ii) to create a special purpose vehicle in respect of
damages for riot cases 29. This issue was examined by the Nariman Committee
such cases) there is destruction/damage to properties and loss of lives or
injuries to persons - (i) the true measures of such damages (ii) the modalities
for imposition of such damages and..." (p.2 of the Report)
30. These guidelines
shall cease to be operative as and when appropriate legislation consistent with
the guidelines indicated above are put in place and/or any fast track mechanism
is created by Statute(s).
31. So far as the
role of media is concerned the Mr. F.S. Nariman Committee has suggested certain
modalities which are essentially as follows:
a) The Trusteeship
Principle - Professional journalists operate as trustees of public and their
mission should be to seek the truth and to report it with integrity and
b) The Self
Regulation Principles - A model of self-regulation should be based upon the
principles of impartiality and objectivity in reporting; ensuring neutrality;
responsible reporting of sensitive issues, especially crime, violence,
agitations and protests; sensitivity in reporting women and children and
matters relating to national security; respect for privacy.
Regulations - In principle, content regulation except under very exceptional
circumstances, is not to be encouraged beyond vetting of cinema and advertising
through the existing statues. It should be incumbent on the media to classify
its work through warning systems as in cinema so that children and those who
are challenged adhere to time, place and manner restraints. The media must also
evolve codes and complaint systems. But prior content control (while accepting
the importance of codes for self restraint) goes to the root of censorship and
is unsuited to the role of media in democracy.
Principle - There should be an effective mechanism to address complaints in a
fair and just manner.
e) Balance Principle
- A balance has to be maintained which is censorial on the basis of the
principles of proportionality and least invasiveness, but which effectively
ensures democratic governance and self restraint from news publications that
the other point of view is properly accepted and accommodated.
32. It is felt that
the appropriate methods have to be devised norms of self regulation rather than
external regulation in a respectable and effective way both for the
broadcasters as well as the industry. It has been stated that the steps
constitute a welcome move and should be explored further. The proposed norms
read as follows:
believes that media that is meant to expose the lapses in government and in
public life cannot be obviously be regulated by government, else it would lack
credibility. It is a fundamental paradigm of freedom of speech that media must
be free from governmental control in the matter of "content" and that
censorship and free speech are sworn enemies. It therefore falls upon the
journalistic profession to evolve institutional checks and safeguards, specific
to the electronic media, that can define the path that would conform to the
highest standards of rectitude and journalistic ethics and guide the media in
the discharge of its solemn Constitutional duty. There are models of governance
evolved in other countries which have seen evolution of the electronic media,
including the news media, much before it developed in India. The remarkable
feature of all these models is "self-governance", and a monitoring by
a "jury of peers ".
33. The Committee has
recommended the following suggestions:
(i) India has a
strong, competitive print and electronic media (ii) Given the exigencies of
competition, there is a degree of sensationalism, which is itself not harmful
so long as it preserves the essential role of the media viz: to report news as
it occurs - and eschew comment or criticism. There are differing views as to
whether the media (particularly the electronic media) has exercised its right
and privilege responsibly. But generalisations should be avoided. The important
thing is that the electronic (and print) media has expressed (unanimously) its
wish to act responsibly.
The media has largely
responsible and more importantly, it wishes to act responsibly.
(iii) Regulation of
the media is not an end in itself; and allocative regulation is necessary
because the 'air waves' are public property and cannot technically be free for
all but have to be distributed in a fair manner. However, allocative regulation
is different from regulation per se. All regulation has to be within the
framework of the constitutional provision.
However, a fair
interpretation of the constitutional dispensation is to recognize that the
principle of proportionality is built into the concept of reasonableness
whereby any restrictions on the media follow the least invasive approach. While
emphasizing the need for media responsibility, such an approach would strike
the correct balance between free speech and the independence of the media.
(iv) Although the
print media has been placed under the supervision of the Press Council, there
is need for choosing effective measures of supervision - supervision not
(v) As far as
amendments mooted or proposed to the Press Council Act, 1978 this Committee
would support such amendments as they do not violate Article 19(1) (a) - which
is a preferred freedom.
(vi) Apart from the
Press Council Act, 1978, there is a need for newspapers and journals to set up
their own independent mechanism.
(vii) The pre
censorship model used for cinema under the Cinematography Act, 1952 or the
supervisory model for advertisements is not at all appropriate, and should not
be extended to live print or broadcasting media.
(viii) This Committee
wholly endorses the need for the formation of (a) principles of responsible
broadcasting (b) institutional arrangements of self regulation But the
Committee emphasised the need not to drift from self regulation to some
statutory structure which may prove to be oppressive and full of litigative
(ix) The Committee
approved of the NBA model as a process that can be built upon both at the
broadcasting service provider level as well as the industry level and recommend
that the same be incorporated as guidelines issued by this Court under Act 142
of the Constitution of India - as was done in Vishaka's case.
34. The suggestions
are extremely important and they constitute sufficient guidelines which need to
be adopted. But leave it to the appropriate authorities to take effective steps
for their implementation. At this juncture we are not inclined to give any
35. The writ
petitions are disposed of. We express our appreciation for the members of both
the Committees and the Chairman of each Committee Justice K.T. Thomas and F.S.
Nariman who are to be complimented for the pains taken by them to make
recommendations which will go a long way to meet the challenges posed.
(Dr. ARIJIT PASAYAT)
LOKESHWAR SINGH PANTA)