This case was initially a criminal appeal, but later was converted into a Public Interest Litigation suo motu by our order dated 14th February, 2011. By that order we dismissed the criminal appeal of the appellant and upheld his conviction. However, we were of the opinion that the problems of sex workers required urgent attention by this Court. Hence, we proceeded thereafter to continue with the case as a Public Interest Litigation and passed several orders thereon, including an order dated 19.07.2011 setting up a Panel with Mr. Pradip Ghosh, Senior Advocate, as its Chairman.
Today, the case has been listed again before us and a Third Interim Report dated 12.09.2011 of the Panel appointed by our order dated 19.07.2011 has been filed before us by the Chairman of the Panel Mr. Pradip Ghosh, learned senior counsel.
From a perusal of the report submitted by the Panel report it appears that the Panel has been doing very good and sincere work in connection with the task which we have entrusted to it. The Panel has taken great pains and has held regular meetings to discuss the problem of sex workers. We have earlier pointed out in one of our orders that the problem of sex workers cannot be resolved in a very short time and will require long, patient effort.
Our initial aim was to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty. No girl would ordinarily enjoy this kind of work, but she is compelled to do it for sheer survival. Most sex workers come from poor families, they are subjected to ill treatment by the owners of the brothels, they are often beaten, not givenproper food or medical treatment, and made to do this degrading work. Probably much of the money paid by their customers is taken away by others.
We are happy to note that the Panel has set about its task in right earnest, and is considering ways and means to implement our ideas so that the sex workers can get some technical training through which they can earn their livelihood and thus lead a life of dignity which is guaranteed by Article 21 of the Constitution of India.
In the Third Interim Report the Panel has prayed for the following :-
(a) An appropriate order directing the State Governments and the Local Authorities to issue Ration Cards to the sex workers treating them as persons in special category and relaxing the rigours of the Rules/requirements regarding the verification of their address and without mentioning their profession in the Card;
(b) An appropriate order be made directing the Central Government and the Election Commission to issue Voter’s Identity Cards to the sex workers in relaxation of the rules/requirements in that behalf and without insisting on strict proof of their address/profession and without specifying their profession on the face of the Card;
(c.) An order be made directing the Central Government and the State Governments to ensure that the admission of the children of sex workers in appropriate classes in the Government schools and Government sponsored schools and the schools run by the Municipal and District level authorities is not hampered in any way, because of their impaired social status.
(d) An appropriate order be made directing the Central Government to suitably alter and widen the UJWALA Scheme within a period of six months as directed by order dated 24.08.2011 (vide paragraph 26 of the said order) made in this matter.
(e) An order or direction be made to the effect hat the amount paid or to be paid by the Central Government, State Governments and the Union Territories to the Secretary General of this Hon’ble Court as directed by order dated 24.08.2011, be deposited in the Bank Account of the Panel in the UCO Bank Supreme Court Compound Branch, in the name of “Panel Appointed by Supreme Court in Criminal Appeal No. 135/2011” to be operated jointly by the Chairman of the Panel Mr. Pradip Ghosh and Mr. Jayant Bhusan, a member of the Panel, in terms of the order dated 24.08.2011.
(f) Such appropriate orders as may be deemed fit and proper be made, for compliance by the Central Government of the earlier order made by the Hon’ble Court on 24.08.2011 with regard to office accommodation, secretarial staff assistance and furnishing the office with necessary infrastructure and to furnish report of compliance in this Hon’ble Court within a period to be fixed by the Hon’ble Court.”
We are of the opinion that the suggestions of the Panel are good suggestions. Sex workers face great difficulty in getting ration cards, voter’s identity cards or in opening bank accounts, etc. We are of the opinion that the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others.
We, therefore, recommend that the suggestions made by the Panel in its Third Interim Report (which has been quoted above) shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. If there is any difficulty in implementing them, then on the next date we should be told about such difficulty.
Needless to say, without a proper office and infrastructure the Panel will not be able to discharge its duties properly. We, therefore, again request the Central Government and the State Government of Delhi to do the needful in this connection expeditiously.
We are informed that in pursuance of our order dated 24.08.2011 the Central Government has deposited a sum of Rs. 10 Lakh with the Secretary General of this Court. Some of the States/Union Territories have made payment as directed by us. However, some of the States/Union Territories are yet to make payment. We direct that those States or Union Territories which have not yet made payment shall make payment within three weeks from today (except those which have no sex workers).
We further direct that the amount deposited with the Secretary General of this Court shall be transferred to the account of the Panel in the UCO Bank, Supreme Court Compound Branch in Savings A/C No. 02070210000939.
List this case on 15.11.2011 by which time another report shall be submitted by the Panel. We hope and trust that the recommendations made by the Panel will be implemented by then by the concerned authorities.
There have been a number of articles on the Cabinet Secretary’s report regarding tapping of telephones which appeared in some section of the media. It is important that the correct factual position is presented to the media. The provisions for authorization of interception are contained in Section 5(2) of Indian Telegraph Act, 1885 read with Rule 419(A) of the Indian Telegraph Rules, 1951 as well as Section 69 of the Information Technology Act, 2000 read with Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.
The Hon’ble Supreme Court has upheld the constitutional validity of interceptions and monitoring under Section 5(2) of the Act through its order dated 18.12.1996 in Writ Petition (C) No.256/1991 by People’s Union for Civil Liberties (PUCL) Vs. Union of India. It has also observed that the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “Right to Privacy”, and accordingly, held that telephone tapping would infringe the Right to Life and Right to Freedom of Speech & Expression enshrined in Articles 21 and 19(1)(a) respectively of the Constitution of India, unless it is permitted under the procedure established by law. The Hon’ble Court further observed that Section 5(2) of the Act clearly provides that ‘occurrence of any public emergency’ or ‘interest of public safety’ is a sine qua non for the application of these provisions. Neither of these are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
In this regard, the Hon’ble Court has recalled its observations in the case of Hukum Chand Shyamlal Vs. Union of India and others, 1976 stating that ‘economic emergency’ is not one of those matters expressly mentioned in the statute, and further that mere ‘economic emergency’ may not necessarily amount to a ‘public emergency’ and justify action under Section 5(2) of the Act, unless it raises problems relating to the matters indicated in the section. ‘Public emergency’ would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. It is one which raises problems concerning the interest of public safety, the sovereignty and integrity of India, the security of the State, friendly relations with sovereign States or public order or the prevention of incitement to the commission of an offence. ‘Public Safety’ means the state of condition of freedom from danger or risk for the people at large. It has been stated further that when either of these two conditions are not in existence, authorities cannot resort to telephone tapping, even though there is satisfaction that it is necessary or expedient to do so in the interests of sovereignty and integrity of India, security of the State, friendly relations with sovereign States, public order or for preventing incitement to the commission of an offence.
In the light of the above, the Hon’ble Supreme Court gave directions covering the issue of institutional safeguards to be put in place in respect of interception under Section 5(2) of the Indian Telegraph Act, which was incorporated in terms of Rule 419(A) of the Indian Telegraph Rule, 1951.
In the light of recent controversies on account of interception of certain telephone numbers by a designated authorized agency, which were extensively reported by media, the Hon’ble Prime Minister directed the Cabinet Secretary to look into the Rules, Procedures and Mechanism to avoid their misuse. After examining all the relevant issues, Cabinet Secretary recommended further comprehensive refinement of Rules and Procedures, in addition to providing for stronger penal provisions for violations by amending the law. It was also recommended to either remove the CBDT from the list of authorized agencies in respect of telephone interception as the income tax laws fall within civil jurisdiction and do not always impinge on the public safety or to specify stipulations regarding the extent of surveillance allowed to the agency, including the level at which requests are to be made for authorization by the Home Secretary. It is clarified that the law does not permit use of telephone tapping and monitoring of conversations to merely detect tax evasion. There are specific laws and rules that contain provisions for detection of unaccounted wealth and evasion of taxes, and interception of telephones without ‘public emergency’ or ‘public safety’ being at stake is not in accordance with the law, as exhaustively interpreted by the Hon’ble Supreme Court. The recommendations made by the Cabinet Secretary reiterate this established legal position, which should not be seen in terms of conflicts between individuals or interest groups.
JUDGEMENT OF THE SUPREME COURT SHOWS HOW CHIEF MINISTERS SUBVERT THE SYSTEM AND INTERFERE IN THE FUNCTIONING OF THE POLICE
(Arising out of SLP (Crl.) No.2614 of 2009)
State of Maharashtra & Ors. ..Appellant(s) Versus Sarangdharsingh Shivdassingh Chavan & Anr…Respondent(s)
J U D G M E N T GANGULY, J.
The facts of each case, which come up to this Court and especially those which are heard at length as appeals, have a message to convey. The message conveyed in this case is extremely shocking and it shocks the conscience of this Court about the manner in which the Constitutional functionaries behaved in the State of Maharashtra.
A writ petition was filed before Bombay High Court by Sarangdharsingh Shivdassingh Chavan – the first respondent in this appeal. He described himself as an agriculturist by profession. The allegation in the writ petition is of illegal money lending against the second respondent to the extent of charging 10% interest per month on the money lent.
In view of such exorbitant interest being charged and the illegalities which are alleged be committed in the recovery of such loan, certain complaints were filed against the second respondent and in the writ petition it is stated that as many as 34 complaints were registered against the second respondent till 28.6.2006.
It was also averred in the writ petition that nearly 300 farmers have committed suicide in Vidarbha region of Maharashtra as victims of such illegal money lending business and the torture perpetrated in the recovery of such money. A complaint has been made that the farmers do not get the benefit of various packages announced by the Government and the State machinery is ruthless against the farmers. The cause of action for filing the writ petition is the order of Collector in the District of Buldhana (hereinafter “Collector”) directing not to register any crime against Mr. Gokulchand Sananda, the second respondent herein, without obtaining clearance from the District Anti Money Lending Committee and also without obtaining legal opinion of the District Government Pleader. It appears that the said order was passed by the Collector in view of the instructions given to him by the then Chief Minister of Maharashtra. It has been alleged in the petition that there are several complaints and the number of such complaintsis about 50 against Sananda and his family members who are carrying on money lending business and the cases cannot be registered against them in view of the instructions given by the then Chief Minister.In order to understand the seriousness of the situation, it will be appropriate in the fitness of things, to set out the order dated 5.6.2006 of the Collector, Buldhana to the District Superintendent of Police, Buldhana:
“To District Superintendent of Police Buldhana
Sub: Regarding complaints against illegal money lending against MLA Dilipkumar Sananda and his family members.
Ref: instructions given by Hon’ble Chief Minister in meeting dated 1.6.2006.
On the above mentioned subject, detailed discussion took place at the residence of Hon’ble Chief Minister on 1.6.2006. In the said meeting, MLA Dilipkumar Sananda complained that deliberately by raising false allegations, against his family members, complaints regarding illegal money lending are being filed and without scrutinizing truthfulness of the said complaints, offences are being registered. In respect of said grievance, Hon’ble Chief Minister has taken serious note and given order that ‘if any such complaint is received then before registration of offence against MLA Dilipkumar Sananda and his family members, said matter/complaint be placed for decision before District Anti-Money Lending Committee and said Committee should obtain legal opinion of District Government Pleader and then only take decision on the same and take appropriate legal action accordingly’.
You are informed that as per the instructions of Hon’ble Chief Minister, matters against Sananda family be handled as per the provisions of Money Lending Prevention Act.”
It may be noticed that prior to the aforesaid discussion which the Collector had at the residence of the Chief Minister on 1.6.2006 in which meeting Mr. Dilipkumar Sananda, local MLA was present, something happened in the Police Station, Khamgaon City, District Buldhana on 31.5.2006. The said station diary shows that Mr. Padwal, P.S. to the Chief Minister telephoned twice to enquire about “the information regarding the offence” registered against Sananda and the Section under which the case has been registered. The second phone call as recorded in Station Diary shows that Mr. Padwal directed that no action should be taken as instructed by the Chief Minster and no offence should be registered. The text of the station diary dated 31.5.2006 is set out:
13.15 hrs. Phone from PS to Hon. CM At this time, Mr. Padwal, PS to Hon’ble Chief Minister, MS dialed and enquired about the information regarding offence registered against Sananda; we informed that offence is registered at 12.15 hrs.
13.25 hrs. Phone from PS to Hon. CM At this time, Mr. Padwal enquired about facts of the offence registered, sections applied; then we informed them about sections applied to the said registered offence, then he told that henceforth no action be taken as instructed by Hon’ble CM and further said that again no other offences be regist ered.
Khamgaon City Police Station
On the writ petition being filed challenging the aforesaid two communications, namely, the communication made by the P.S. to the Chief Minister vide the Station diary entry which is set out above and the order of Collector on the direction of the Chief Minister, the High Court in the impugned judgment allowed the writ petition. The High Court, inter alia, held that the directions of the Chief Minister in the telephonic message was proved by the communication of the Collector dated 5.6.2006 and the High Court held that such telephonic communication was made at the behest of Gokulchand Sananda, the second respondent herein. The High Court after examining the provisions of the Bombay Money Lenders Act and also the materials on record held that the letter dated 5.6.2006 and the telephonic message recorded in the Station diary entry exhibit gross abuse of power by the concerned authority and struck down both the communications.
9. The High Court, however, recorded that on the complaint filed by the writ petitioner – the first respondent herein, a chargesheet was filed for offences under Sections 341, 342, 363, 392, 504 read with Section 34 of Indian Penal Code and Section 32B of the Bombay Money Lenders Act, 1946. The criminal case is pending. The High Court also observed that they are not aware how many instances of illegal money lending do exist. The High Court expressed a hope that power of the Executive will not be abused in the manner in which it has been done in this case. The High Court, quashed the Collector’s order and allowed the writ petition awarding costs of Rs.25,000/- to be paid by the State Government.
10. However, the State of Maharashtra did not accept the judgment of the High Court and challenged the same before this Court by filing a special leave petition out of which the present appeal arises.
11. From the affidavit which was filed by the Collector before the High Court, it appears that the Collector has admitted that in Vidarbha region in Buldhana District the farmers committed suicide for various reasons and especially for the loan burden coupled with the fact that there was irregular rain fall.
12. The Collector admitted in paragraph (3) of the affidavit that on the complaint of Sananda before the Chief Minister about cases being registered
against him and his family members without investigation, the Chief Minister called the Collector at Mumbai and gave the instructions quoted above and thereupon the Collector conveyed the message of the Chief Minister to the Superintendent of Police, Buldhana. However, the Collector took a stand that by doing so he has not committed any illegality.
13. In the affidavit of the Superintendent of Police, Buldhana before the High Court, he admits that there are five cases already registered against the family members of Sananda under the Bombay Money Lenders Act and he has given details of those cases in his affidavit. He also submitted that on 31.5.2006 an offence came to be registered at police station, Khamgaon (T) on the complaint made by Shri Rajesh Shankar Kawadkar under Sections 341, 366, 392 read with Section 34 IPC and under Section 32(b) and 33 of the Bombay Money Lenders Act. He also admits to have received instructions from the Collector by the Collector’s order dated 5.6.2006 about the Collector’s meeting with the then Chief Minister of the Maharashtra and also about the manner in which the police has to deal with the complaints against Dilip Kumar Sananda and his family members. He further averred in his affidavit that by letter dated 9.6.2006 the Superintendent of Police conveyed that as per Section 154 of Criminal Procedure Code cognizable complaints are to be registered without undue delay. However, on receipt of the said letter the Collector sent his letter dated 14.6.2006 stating therein that under Section 36 of the Cr.P.C. the State Government can direct a senior police officer to take cognizance of the offence also.
14. In the course of hearing of this case, this Court by an order dated 11th February 2010 directed the learned counsel for the appellant to file an affidavit on the following points:
“1. The number of cases involving complaints against respondent No.2 and/or his family members.
2. The number of cases in which FIR have been registered against respondent No.2 and/or his family members.
3. The number of cases in which instructions like the one contained in letter dated 05.06.2006 of District Collector, Buldhana were or have been given by Hon’ble the Chief Minister or any other functionary or authority of the State Government.”
15. Pursuant thereto an additional affidavit was filed by one Ambadas, Assistant Police Inspector, posted to P.S. Khamgaon Gramin, District Buldhana, Maharashtra to the effect that 34 complaints were received in different police stations in Buldhana District against the members of Sananda family. In the affidavit it was also stated that in seven complaints chargesheets have been filed and the same are pending before different Courts below. In respect of other complaints the complainants have either settled their disputes or have withdrawn their complaints. It was also stated that not a single person including any member of the complainant’s family has committed suicide in view of dispute over money lending by Sananda family. This averment was, however, not necessary in terms of the order dated 11.2.10.
16. The learned counsel appearing for the first respondent raised a contention that the so called District Anti-money Lending Committee is not statutory. This Court has looked into the resolution dated 19th October 2005 which purports to constitute the said committee and this Court finds that the said committee has not been constituted in exercise of any statutory power and the said committee consists of the following persons:
“1. District Collector of the concerned District – President
2. District Superintendent of Police – Member
3. District Registrar, Cooperative Society – Member Secretary.”
17. This Court, therefore, finds that the contention of the learned counsel for the first respondent is correct and so far as the said committee is concerned it is not a statutory body.
18. Since, the learned counsel for the first respondent was arguing on the propriety of directions given by the then Chief Minister of Maharashtra and also on the propriety of Chief Minister’s Personal Secretary making telephone calls to the police station and giving instructions as to how complaints should be registered against the family of the second respondent, this Court thought that the then Chief Minister of Maharashtra, who was initially not a party to this proceeding, should be impleaded and be given a chance to make his representation before the Court. Therefore, this Court by an order dated 31st March 2010, gave notice to the then Chief Minister of State of Maharashtra, presently Union Minister, Department of Heavy Industries, Government of India and directed service of the entire paper book of Special Leave Petition on him in order to enable him to file an affidavit in the context of the letter dated 5th June 2006 sent by the Collector to the District Superintendent of the Police, Buldhana.
19. Pursuant to the said notice an affidavit was filed by Shri Vilasrao Deshmukh, the then Chief Minister of Maharashtra. In paragraph 5 of the said affidavit the content of the letter of the Collector dated 5.6.06 was not denied. Nor was it denied that on 31.5.06, his Private Secretary made two telephone calls to the concerned Police Station enquiring about cases registered against Sananda. However, in the said affidavit Mr. Deshmukh stated that he never interfered with any pending investigation against the family of Sananda and he further stated that investigation was conducted and the chargesheet was filed.
20. Considering the entire matter in its proper perspective, this Court is of the view that the way interference was caused first from the office of the Chief Minister by his Private Secretary by two telephone calls on 31.5.2006 and the manner in which District Collector was summoned by the Chief Minister on the very next day i.e. 1.6.2006 for giving instructions to specially treat any complaints filed against M.L.A. Mr. Dilip Kumar Sananda and his family has no precedent either in law or in public administration.
21. The legal position is well settled that on information being lodged with the police and if the said information discloses the commission of a cognizable offence, the police shall record the same in accordance with the provisions contained under Section 154 of the Criminal Procedure Code. Police Officer’s power to investigate in case of a cognizable offence without order of the Magistrate is statutorily recognised under Section 156 of Code. Thus the police officer in charge of a police station, on the basis of information received or otherwise, can start investigation if he has reasons to suspect the commission of any cognizable offence.
22. This is subject to the provisos (a) and (b) to Section 157 of the Code which leaves discretion with the police officer-in-charge of police station to consider if the information is not of a serious nature, he may depute a subordinate officer to investigate and if it appears to the officer-in- charge that there does not exist sufficient ground, he shall not investigate.
23. This legal framework is a very vital component of the Rule of Law in order to ensure prompt investigation in cognizable cases and to maintain law and order.
24. Law does not accord any special treatment to any person in respect of any complaint having been filed against him when it discloses the commission of any cognizable offence. In the context of this clear legal position which, as noted above, is a vital component of a Rule of Law, the direction of the then Chief Minister to give a special treatment to Shri Dilip Kumar Sananda, M.L.A and his family about registering of complaint filed against them is totally unwarranted in law. Mr. Vilasrao Deshmukh as the Chief Minister of State of Maharashtra is expected to know that the farmers of the State specially those in the Vidarbha region are going through a great deal of suffering and hardship in the hands of money lenders.
25. It is not in dispute that members of the family of Shri Dilip Kumar Sananda, a Member of Legislative Assembly, are engaged in money lending business and various complaints have been lodged against the members of such family.
26. From the affidavit filed by Shri Ambadas it is clear that 34 cases were filed against that family in respect of allegation of money lending.
27. From the communication of the Collector containing the instructions of the then Chief Minister, Mr. Vilasrao Deshmukh, it is clear that the Chief Minister was aware of various complaints being filed against the said family. Even then he passed an order for a special treatment in favour of the said family which is unknown to law. This was obviously done to protect the Sananda family from the normal legal process and a special procedure was directed to be adopted in respect of criminal complaint filed against them. In other words, the Chief Minister wanted to give the members of the said family a special protection which is not available to other similarly placed persons. It is clear from the Collector’s order dated 5.6.2006 where the Chief Minister’s instructions were quoted that the Chief Minister was acting solely on political consideration to screen the family of M.L.A from the normal process of law.
28. As Judges of this Court, it is our paramount duty to maintain the Rule of Law and the Constitutional norms of equal protection.
29. We cannot shut our eyes to the stark realities. From the National Crime Records Bureau (NCRB), it is clear that close to two lakh farmers committed suicide in India between 1997 and 2008. This is the largest sustained wave of suicides ever recorded in human history. Two thirds of the two lakh suicides took place in five states and those five states are Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Chhattisgarh. Even though Maharashtra is one of the richest state in the country and in its capital Mumbai twenty five thousand of India’s one lakh dollar millionaires reside, the Vidarbha region of Maharashtra, in which is situated Buldhana, is today the worst place in the whole country for farmers. Professor K. Nagraj of the Madras Institute of Development Studies who carried on a research in this area has categorized that Maharashtra could be called the graveyard of farmers.
30. The position is so pathetic in Vidarbha region that families are holding funerals and weddings at the same time and some time on the same day. In a moving show of solidarity poor villagers are accumulating their money and labour to conduct marriages and funerals of their poor neighbours. (See the report in Hindu dated 22nd May 2006).
31. This being the ground reality, as the Chief Minister of the State and as holding a position of great responsibility as a high constitutional functionary, Mr. Vilasrao Deshmukh certainly acted beyond all legal norms by giving the impugned directions to the Collector to protect members of a particular family who are dealing in money lending business from the normal process of law. This amounts to bestowing special favour to some chosen few at the cost of the vast number of poor people who as farmers have taken loans and who have come to the authorities of law and order to register their complaints against torture and atrocities by the money lenders. The instructions of the Chief Minister will certainly impede their access to legal redress and bring about a failure of the due process.
32. The aforesaid action of the Chief Minister is completely contrary to and inconsistent with the constitutional promise of equality and also the preambular resolve of social and economic justice. As a Chief Minister of the State Mr. Deshmukh has taken a solemn of oath of allegiance to the Constitution but the directions which he gave are wholly unconstitutional and seek to subvert the constitutional norms of equality and social justice.
33. The argument that some of the cases in which complaints were filed against the family of Sananda, were investigated and chargesheets were filed, is a poor consolation and does not justify the issuing of the wholly unauthorised and unconstitutional instructions to the Collector. It is not known to us in how many cases investigation has been totally scuttled in view of the impugned directions. Records disclosed in this case show that out of 74 cases only in seven cases chargesheets were filed and the rest of the cases were either compromised or withdrawn. How can poor farmers sustain their complaint in the face of such directions and how can the subordinate police officers carry on investigation ignoring such instructions of the Chief Minister? Therefore, the instructions of the Chief Minister have completely subverted the Rule of Law.
34. Dr. Singhvi, learned senior counsel appearing for Mr. Vilasrao Deshmukh relied on a decision of this Court in the case of Lalita Kumari v. Government of Uttar Pradesh & Ors. reported in 2008 (14) SCC 337. 35. In Lalita Kumari (supra), a Bench of this Court did not lay down any law. The Bench merely noted that there is a divergence of views between different Benches of this court on the issue whether upon receipt of information disclosing a cognizable offence, it is imperative for the police officer to register a case or discretion still lies with him to make some kind of a preliminary enquiry before registering the same. The Bench having noted the divergence of views on the aforesaid question referred the matter to a larger Bench.
36. We fail to appreciate the relevance of the aforesaid decision to the disputes involved in the present case.
37. In Lalita Kumari (supra), there was no instruction by any Chief Minister or any executive authority to give a special treatment to any group of persons in the matter of registration of criminal cases against them. Therefore, the opinion in Lalita Kumari (supra) does not in any way justify the instruction given by Mr. Vilasrao Deshmukh.
38. This Court is extremely anguished to see that such an instruction could come from the Chief Minister of a State which is governed under a Constitution which resolves to constitute India into a socialist, secular, democratic republic. Chief Minister’s instructions are so incongruous and anachronistic, being in defiance of all logic and reason, that our conscience is deeply disturbed. We condemn the same in no uncertain terms.
39. We affirm the order of the High Court and direct that the instruction of the Chief Minister to the Collector dated 5.6.06 has no warrant in law and is
unconstitutional and is quashed. We dismiss this appeal with costs of Rs.10,00,000/- (Rupees Ten Lakhs) to be paid by the appellant in favour of the Maharashtra State Legal Services Authority. This fund shall be earmarked by the Authority to help the cases of poor farmers. Such costs should be paid within a period of six weeks from date.
A bench of Justice Markandey Katju and Justice Gyan Sudha Misra has ordered the formation of Armed Forces Grievances Redressal Commission. The Bench ordered this in the case of Pushpa Vanti vs Union of India & others in which a a widow Pushpa Vanti, whose husband was an army major who had fought in three wars (in 1948, 1962 and 1965) and was decorated with fourteen medals. However, the petitioner is getting only Rs.80/- per month as pension, in these days when a kilogram of arhar dal costs that amount. She had prayed for fixation of her correct pension and arrears.
Shocked at the apathy of the retired soldiers and their families the bench observed that there is widespread discontent among the serving and former members of the armed forces (by which we mean the Army, Navy and Air Force) and their widows and family members regarding their service conditions e.g. pay scales, allowances, anomalies regarding pensions, inadequate pension (particularly to those disabled while in service), widows benefits, promotion matters (including promotion policy and process) etc.. They have a feeling that the bureaucrats do not care for them and do not properly address their grievances. As a result, thousands of ex- armed forces personnel have returned their medals, and some have even burnt their artificial limbs.
These grievances include the grievances relating to pay, allowances, one rank one pension, other pension matters, suitable benefits to be granted to war veterans, war widows, promotion matters, rehabilitation of soldiers who are discharged at a young age, etc.
Our courts of law are flooded with cases relating to members, both serving and retired, of the armed forces e.g. cases relating to pension, promotion, etc and the obvious reason is that the armed forces personnel have a feeling that their grievances are not being properly addressed.
Our ex-soldiers have not only been demanding but are agitating to get their legitimate dues. They were compelled to resort to public protests and even return their War-medals and burn their artificial limbs, as was done by Capt.C.S. Sidhu whose right arm was amputated while serving at the front but was getting a pittance as pension (see judgment of this Court in Union of India & Anr. vs. C.S. Sidhu in Civil Appeal No.4474 of 2005 dated 31st March, 2010).This, in our opinion, is not good for the nation.
The armed forces personnel should have a feeling that their grievances are heard by an independent body. Even if some of their demands are not accepted, they will have a feeling that they were given a proper hearing.
The court while expressing its anger on the apathy of the soldiers gave a clarion call to the government by quoting a statement made by Chanakya to the emperor Chandra Gupt Maurya :
“Pataliputra rests each night in peaceful comfort, O King, secure in the belief that the distant borders of Magadha are inviolate and the interiors are safe and secure, thanks only to the Mauryan Army standing vigil with naked swords and eyes peeled for action, day and night, in weather fair and foul, all eight praharas (i.e. round the clock), quite unmindful of personal discomfort and hardship, all through the year, year after year. To this man, O Rajadhiraja, you owe a debt: please, therefore, see to it, suo motu, that the soldier continuously gets his dues in every form and respect, be they his needs or his wants, for he is not likely to ask for them himself. The day the soldier has to demand his dues will be a sad day for Magadha; for then, on that day, you will have lost all moral sanction to be king!”
The bench directed the Central Government to set up within two months from today a Commission which shall be called the Armed Forces Grievances Redressal Commission.
This Commission will look into any grievances (sent to them in writing or by e-mail) by serving or former members of the armed forces (i.e. Army, Navy and Air Force) or their widows or family members and make suitable recommendations expeditiously to the Central Government in this connection.
The Commission will also frame and recommend to the Central Government a scheme for proper rehabilitation of discharged soldiers. At present the position is that a soldier is ordinarily recruited at the age of about 18 years, and if he does not rise above the rank of Jawan he is discharged after 15 years of service. If he is promoted, his tenure is extended on each promotion.
Thus, if he reaches the rank of Havildar but no further he will retire after 22 years of service, i.e. at the age of 40. Thus a soldier is retired when he is in the prime of life. During his service he spends only about 2 months per year with his family. There is no doubt a Resettlement Directorate in the Army Headquarters, but we are informed that it is not a very effective body. If a soldier is discharged between the age of 35-45 how will he support his family ? At that age he is likely to have a wife and children. Hence he should be given alternative employment so that he can support his family. The Commission will go into this matter also in detail and suggest appropriate schemes for rehabilitation of ex-armed forces personnel who are retired at a relatively young age.
The aforesaid Commission shall consist of the following members :
1. A retired Judge of the Supreme Court of India as the Chairman of the Commission.The first Chairman shall be Hon’ble Mr. Justice Kuldip Singh, former Judge, Supreme Court.
2. A former Chief Justice of the High Court as the Vice Chairman of the Commission. The Vice Chairman will officiate as the Chairman in absence of the Chairman. The first Vice Chairman shall be Hon’ble Mr. Justice S.S. Sodhi, retired Chief Justice of the Allahabad High Court.
3. A retired Chief of Army staff as a Member of the Commission.
The term of the first Commission will be for two years from the date of its constitution but it will be renewable at the option of the Central Government. The subsequent Commission members (after the two year term of the first Commission has expired) shall be appointed by the Central Government.
The Bench made it clear that this Commission is different from the Armed Forces Tribunal in the following ways :
1. The Commission is only a recommendatory body and not an adjudicatory body. Hence it is open to the Central Government to accept or not to accept its recommendations, though of course since such recommendations will be coming from a high powered body the Central Government must give due weight to the same.
2. Whereas the Armed Forces Tribunal can only decide cases in accordance with the rules, the Commission can recommend even change of the rules where it feels that the same are defective or inadequate. In other words, the Commission is not confined to following the relevant rules relating to service conditions, pension, etc. but it can recommend change of the same where it feels that the same are defective or inadequate.
The Court directed all authorities in India, Civil or Military (including the Secretary, Defence, Union of India, and the Chiefs of the Army, Navy and Air Staffs) to extend all cooperation to the Commission to enable it to discharge its functions effectively.The notification constituting the Commission as provided above will be issued by the Central government forthwith.