Re- Ramlila Maidan Incident
The recent decision of
the Supreme Court related to the beating of people who were sleeping in Ramlila
Maidan has again put the government in an embarrassing position.Apart from the
factual background I will discuss about the reasons given by the court for its
pronouncement. It is a long judgment running in 81 pages. The judgment was
written by Justice Swatanter Kumar and Justicce B.S. Chauhan also wrote a
separate opinion where he agreed with Justice Kumar but added few more things.
The Judgment. To begin
with, I think this case was not suitable to be taken in the nature of a writ
petition. There is a huge confusion as to the facts of the case. The Court
itself does not seem to be clear as to what happened in reality. When there are
so many parties to the petition, each with its own version of scene then the
appreciation of evidence becomes very important before pronouncing the law and
fixing the liability. In the case, the Court also decides on the question of
contributory negligence on part of Baba Ramdev and other members of his trust.
Let us look at the ways
in which the issue at hand can be resolved. One way is to see the statutes
which give powers to the police and then check if the exercise of power was
proper or not. Another way is to jump on the constitutional issue of seeing
whether any fundamental right of the people who were there in the ground was
infringed or not. It is well settled principle of constitutional law
adjudication that in matters involving the Constitution, court should approach
the problem narrowly and its decision also must be as far as possible must
concentrate only on the facts before it.
In the present case,
however, the Court is not clear in its response. It first starts with the
freedom of speech in the US Constitution, then comes to the relevant provisions
of India. Then the court discusses the nature of rights and limitations. Then
the facts are discussed. Then the Court comes to the law relating to Sec. 144
of CrPC. Facts are revisited once more. In this way the consistency of judgment
writing is disturbed on multiple occasions. Sec. 144 of CrPC gives an important
tool to the executive authorities to deal with the urgent situation which
“tends to prevent, obstruction, annoyance of injury to any person lawfully
employed, or danger to human life, health or safety, or a disturbance of the
public tranquility, or a riot, or an at-fray.” The Supreme Court in the present
case and previously also has held that the urgent nature of situation is a sine
qua non for exercising powers under the section. The threat perception under
sec 144 must be real and not illusory. Another important point is that there
should be given a reasonable notice to the public before imposing a sec. 144
order. Reasonable time should be given to the public to leave the place where
order is being imposed. According to the Delhi Police Standing Order 309 “there
should be display of banner indicating promulgation of Section 144 Cr.P.C.,
repeated use of Public Address system by a responsible
officer-appealing/advising the leaders and demonstrators to remain peaceful and
come forward for memorandum, their deputation etc. or court arrest peacefully
and requires such announcement to be videographed.”(para 140 of judgment)
It was contended by the
parties that the Sec. 144 order suffered from alafides as the intention of the
government was to punish the people raising the voice against it. Court
rejected it saying that there is no evidence on the record to prove the allegation.
Court held that an order which is arbitrary or illegal may not be necessarily a
malafide order. Court held that the order of imposition of sec. 144 in this
case was wrong as there was no real threat that was posed before the local
authorities in maintaining public order and tranquility. There are other
pronouncements also in the case which I will discuss in a shortwhile.
The part of judgment
which I think is most important from constitutional law point of view is the
emphasis of court on the Part IVA of the Constitution i.e. Fundamental duties
of citizens of India. It was inserted in 1976 through 42nd Amendment to the Constitution.
In Para 20 of the
judgment ,
“Thus, a common thread
runs through Parts III, IV and IVA of the Constitution of India. One Part
enumerates the fundamental rights, the second declares the fundamental
principles of governance and the third lays down the fundamental duties of the
citizens. While interpreting any of these provisions, it shall always be
advisable to examine the scope and impact of such interpretation on all the
three constitutional aspects emerging from these parts.”
Para 21 of the judgment
says
“As difficult as it is
to anticipate the right to any freedom or liberty without any reasonable
restriction, equally difficult it is to imagine the existence of a right not
coupled with a duty. The duty may be a direct or indirect consequence of a fair
assertion of the right. Part III of the Constitution of India although confers
rights, still duties and restrictions are inherent thereunder. These rights are
basic in nature and are recognized and guaranteed as natural rights, inherent
in the status of a citizen of a free country, but are not absolute in nature
and uncontrolled in operation.”
Para 32 of the judgment
runs as follows
“There has to be a
balance and proportionality between the right and restriction on the one hand,
and the right and duty, on the other. It will create an imbalance, if undue or
disproportionate emphasis is placed upon the right of a citizen without considering
the significance of the duty. The
true source of right is duty. When
the courts are called upon to examine the reasonableness of a legislative
restriction on exercise of a freedom, the fundamental duties enunciated under
Article 51A are of relevant consideration. Article 51A requires an individual
to abide by the law, to safeguard public property and to abjure violence. It
also requires the individual to uphold and protect the sovereignty, unity and
integrity of the country.”
In the above paragraphs,
Court has emphasized the importance of the fundamental duties of the citizen.
But I think the Court is not entirely correct in its exposition. The
fundamental duties under Part IVA do not create legally enforceable duties
because no legal consequence will follow from the breach of such duties. True,
if any act is done which violates a duty and contravenes any other statute then
the action will lie in that statute, not under the constitution. Court says
that while examining the limitations, the duties of the citizens must also be
looked into. But it does not cite any instance or example to show how it will
be done. For example, suppose a person has gives a speech in public and is
arrested by the police under any Act then how would Part IVA of the Constitution
will be employed in checking the vires of the Act. Should the Court examine
whether the person fulfilled his duty before exercise of the right? Or should
the observance of duties under Part IVA be a pre condition for exercising any
fundamental right?
Court says that “true
source of any right is duty”. It
is correct. But that duty is not the duty placed upon the individual especially
in the claims involving fundamental rights. If I have a fundamental right then
State has a duty to protect it. It is this “duty” which can be a source of a
fundamental right. If I accept the rationale of the court for a moment then the
obvious question that arises is what the source of the rights was before 1973,
when Part IVA was inserted. Another important point is that if we employ more
and more provisions of the Constitution to impose the limitations, then the
scope of Fundamental Rights will decrease.
If the intention of the
Court behind explaining the importance of the duty was to emphasize the fact
that the people and Baba at Ramleela Maidan have not acted properly when they
refused to comply with the orders of the police, then the Court might have
dealt with it by only citing the provisions of IPC which make it an offence to
obstruct a police officer from doing his duty.(Court indeed cite the provision
in the later part of the judgment) The emphasis on fundamental duties was
unwarranted in this case.
The Court finally find
the Police responsible for what happened at Ramlila Maidan and attributed some
fault to Baba Ramdev also. In para 234, Court says as follows:
“The action demonstrated
the might of the State and was an assault on the very basic democratic values
enshrined in our Constitution. Except in cases of emergency or the situation
unexceptionably demanding so, reasonable notice/time for execution of the order
or compliance with the directions issued in the order itself or in furtherance
thereto is the pre-requisite. It was primarily an error of performance of duty
both by the police and respondent No.4 but the ultimate sufferer was the public
at large.”
Court gave a warning to
the police to not to engage in such activities in future. The compensation was
ordered to be paid. The family of the person who died was given Rs. 5 Lakh, for
persons who suffered major injuries, the compensation was fixed at Rs. 50,000
each and persons who suffered simple injuries were awarded Rs. 25,000 each.
Twenty-five percent of the amount of compensation was ordered to be paid by the
trust of Baba Ramdev.
Right to Sleep: Justice B.S. Chauhan in his opinion wrote that when police disturbed
the crowd in night at 1:00 AM their right to sleep was violated. He holds that
right to sleep forms an essential part of Article 21 which guarantees personal
liberty and life to all. Sleep forms an essential part of living a peaceful
life, hence it is a fundamental right.
I think the Court has
said something which was unnecessary. The question in the case needed no
pronouncement as to whether right to sleep is a fundamental right. Unnecessary
formulations of new rights increase more problems than they solve. As
recognised in international law that the state has an obligation to respect, protect and fulfill the rights of its citizens. Now place
the right to sleep in this framework. What possibly should a state do if a
person is deprived of his sleep. For the exercise of this right state must
ensure resources like places in the cities where one can sleep peacefully if he
has no shelter. If any state authority disturbs a person at night without any
good cause then such actions can be dealt by our right to privacy
jurisprudence. What about the cases where a construction by the state is going
on a busy highway in night. The result would be that whenever any case
involving right to sleep will reach the courts, it will add uncertainty to our
Article 21 jurisprudence. We must understand that as against a legislative
statement of right, the rights deduced by the Courts lack the limitations and
enforcement mechanisms which are necessary for smooth exercise of both state’s
and individual’s interests.
