March 9, 2012

Ramlila Maidan Decision

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.

Brief facts relevant for our discussion are as follows. On night of 4th/5th June 2011, the Police tried to evacuate the people at Ramlila Maidan at 1:30 AM in the night. The people were gathered to attend the yoga shivir of famous Baba Ramdev. MCD had given permission to use the ground for yoga camp. Baba Ramdev then on 4th June urged all of his follower to join the satyagrah. Sec. 144 Cr.P.C. was imposed at 10.30 PM on 4th June. Police went to serve the orer on Baba but he was sleeping. Then when he came to know about it he asked his followers to remain calm and gave speech saying that he will leave only in the morning if his followers ask him to do so. Amid this confusion, he asked his followers to form a circle around him. Police used water cannons and tear gas to disperse the crowd. (Although Police before the Supreme Court never accepted the fact that they resorted to lathi charge but the CCTV footages spoke otherwise.) Then brick batting started between police and followers of Baba Ramdev which resulted in many people getting wounded and death of one person. The Supreme Court took suo motu cognizance of the case and issued notices to the concerned parties. The major issues were the facts and circumstances which led to the mishap, who is responsible and what were the consequences and directions to be given.

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.

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