REPORTABLE

       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)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Taking 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.

2. Two 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.

3. Certain  suggested  guidelines  have  also  been  submitted  by  learned

Amicus Curiae.

4. The report submitted by Justice K.T. Thomas Committee has made the

following recommendations:

(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 videography of the

activities damaging public property.

The recommendations 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 that effect. 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 short notices.  

(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 prescribed.

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.”

The recommendations 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 demonstration organized:

(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;

(II)All weapons, 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 possible;

(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 clear: 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".  

Where persons, 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 appropriate:

(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 “making whole”.  

(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.

Aggravated damages 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.

"Exemplary  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 by statute.

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 [1964] 1 All ER 367 (as affirmed in Cassell v. Broome [1972] 1 All ER 801.) Lord Nicholls in his speech at page 211 stated that:

"...the essence 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 been  confirmed  by  the  Privy  Council  (in  The  Cleaner  Co  Ltd. Vs.  Abrahams [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.

(VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

(IX) Damages shall be assessed for: (a)     damages to public property; (b)    damages to private property; (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.

The recommendations 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.

• Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244  • Vishaka v. State of Rajasthan, (1997) 6 SCC 241  

• Vineet Narain v. Union of India, (1998) 1 SCC 226 ] • State of W.B. v. Sampat Lal, (1985) 1 SCC 317 • K. Veeraswami (1991) 3 SCC 655

• Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 • Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 • Delhi Development Authority v. Skipper Construction Co. (P) Ltd.,

(1996) 4 SCC 622; • Dinesh Trivedi, M.P. v. Union of India, (1997) 4 SCC 306

Common Cause v. Union of India, AIR 1996 SC 929  • Supreme Court Advocates-on-Record Association v. Union of

India; (1993) 4 SCC 441  

• 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 duty.

"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 [1976] 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. "

The principle 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:

"28.Police is, 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. Training methodology 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. 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.

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 arrestee.”

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 statutory framework.

26. The  justification  for  this  was  given  in  Vishaka's  case  (supra)  and

approved in Vineet Narain's case (supra) at pr. 52:

Vishaka’s paras 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.

xxx

14....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  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 the field."  

27.  Thus, as we have noted, there are a number of cases in which guidelines have been given

• Lakshmi Kant Pandey   v. Union of India, (1984) 2 SCC 244 [Guidelines for adoption of minor children by foreigners were laid down]

• 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]

• Vineet Narain   v. Union of India, (1998) 1 SCC 226 [Directions were laid down to ensure the independence of the Vigilance Commission]

• State of W.B.   v. Sampat Lal, (1985) 1 SCC 317 • K. Veeraswami   (1991) 3 SCC 655

• Union Carbide Corporation   v. Union of India, (1991) 4 SCC 584 • Delhi Judicial Service Assn.   v. State of Gujarat, (1991) 4 SCC 406 • Delhi Development Authority   v. Skipper Construction Co. (P) Ltd.,

(1996) 4 SCC 622; • Dinesh Trivedi  , M.P. v. Union of India, (1997) 4 SCC 306 • 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 which considered:

"...where (in 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 independence.

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.

c) Content 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.

d) Complaints 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:

“The NBA 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 control.

(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 potential. (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 positive directions.

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.   

....................J. (Dr. ARIJIT PASAYAT)

..................J. LOKESHWAR  SINGH

PANTA)

    ......................J. (P. SATHASIVAM)

New Delhi April 16, 2009