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TMI Blog2009 (4) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... G. Prakash, A. Subhashini, S. Wasim A. Qadri, Anil Katiyar, D.S. Mehra, Vanita, Shail Kumar Dwivedi, Gunnam Venkateswara Rao, Vandana Mishra, A.K. Jha and M.K. Jha, Advs JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal 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 inn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 controversi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. 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 pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 SCR 795 • Vishaka v. State of Rajasthan AIR 1997 SC 3011 • Vineet Narain v. Union of India 1998CriLJ1208 • State of W.B. v. Sampat Lal 1985CriLJ516 • K. Veeraswami (1992)IILLJ53bSC • Union Carbide Corporation v. Union of India AIR1992SC248 • Delhi Judicial Service Assn. v. State of Gujarat AIR1991SC2150 • Delhi Development Authority v. Skipper Construction Co. (P) Ltd. AIR1996SC2005 ; • Dinesh Trivedi, M.P. v. Union of India [1997]3SCR93 Common Cause v. Union of India [1996]1SCR89 • Supreme Court Advocates-on-Record Association v. Union of India AIR1994SC268 • Positive Mandamus Cases (i) Mandamus to enforce the law The situation in which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1975)IILLJ418SC 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 (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 Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... • Dinesh Trivedi, M.P. v. Union of India [1997]3SCR93 • Common Cause v. Union of India [1996]1SCR89 [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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