SECTION: PIL

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL 3URISDICTION
WRIT PETITION NO._____ OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
Manish Kumar

Petitioner

Versus
Union of India and Others

Respondents

INDEX OF FILING
SRL.
1
2
3
4
5
6
7
8
9

DESCRIPTION
Synopsis & List of Dates
Listing Proforma
Writ Petition

COPIES
1+3
1+3
1+3
1+3
1+3
1+3
1+3
1+3
1
Total Rs.

CT.
FEE

/-

DRAWN & FILED BY:

MANISH KUMAR
PETITIONER IN PERSON
NEW DELHI
DATED:

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL 3URISDICTION
WRIT PETITION NO._____ OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

Manish Kumar

Petitioner
Versus

Union of India and Others

Respondents

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

PETITIONER IN PERSON: MANISH KUMAR

INDEX OF RECORD OF PROCEEDINGS

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S.NO.

DATE OF RECORD OF PROCEEDINGS

PAGE NO.

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1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

INDEX
Srl.

Particulars

1.

Listing Proforma

2.

Check List

3.

Synopsis & List of Dates

4.

Writ Petition with Affidavit

5.

ANNEXURE-

6.

ANNEXURE-

7.

ANNEXURE-

Page Nos.

A-1
LISTING PROFORMA
IN THE SUPREME COURT OF INDIA
1.
2. (a)
(b)
3. (a)
(b)
4.
5.(a)
(b)
6.(a)
(b)
7.
8.
8A.
8B.

8C.
8D.
8E.
8F.

8G.
9.
10.

11.
12.

Nature of the Matter

Name (s) of Petitioner(s)/
Appellants(s):e-mail ID
Name (s) of Respondent(s):e-mail ID
Number of case:Advocate (s) for the Petitioner:e-mail ID
Advocate(s) for the Respondent(s):e-mail ID
Section dealing with the matter:Date of the impugned Order/
Judgment:Name of Honble Judges:In Land Acquisition Matters:i) Notification/Govt. Order No. (u/s
4,6):
Dated N/A issued by Centre/State of:
ii) Exact purpose of acquisition &
Village involved:
In Civil Matters:i) Suit No., Name of Lower Court:
Date of Judgment:
In Writ Petitions:Catchword of other similar matters:
In case of Motor Vehicle Accident
Matters:- Vehicle No:
In Service Matters:(i) Relevant service rule, if any:
(ii)G.O./Circular/Notification,
if
applicable or in question:
In Labour Industrial Disputes Matters:L.D. Reference/Award No., if applicable:
Nature of Urgency:In case it is a Tax matter:a) Tax amount involved in the matter:
b) Whether a reference/statement of
the case was called for or rejected:
c) Whether similar tax matters of same
parties filed earlier (may be for
earlier/other Assessment Year)?
d) Exemption Notification/Circular No:
Valuation of the matter:Classification of the matter:(Please fill up the number & name of
relevant category with sub category as

CIVIL
Manish Kumar
N/A
Union of India & Ors.
N/A
One
Manish Kumar (Petitioner in person)
manishkumar.advocate@gmail.com
N/A
N/A
XVI
27.08.2012
Honble Justice Mr. Shiva Kirti Singh
Honble Justice Mr. V. Nath
N/A

N/A
N/A
N/A
N/A
N/A
Interim Relief
N/A

N/A

13.
14.

15.

per the list circulated.)

No. of Subject Category with full name:
No. of sub-category with full name:
Title of the Act involved (Centre/State):
(a)
Sub-Classification
(indicate
Section /Article of the Statue):
(b) Sub-Section involved:
(c) Title of the Rules involved
Centre/State):
(d) Sub-Classification (indicate
Rule/Sub-rule of the Statute):
Point of law and question of law raised
in the case:

16.

Whether matter is not to be listed

before any Honble Judge?
Mention the name of the Honble
Judge:

17.

Particulars of identical/similar case, if

any
a) Pending cases:
b) Decided cases with citation:
Was S.L.P./Appeal/Writ filed against
same
impugned
Judgment/Order
earlier? If yes, particulars:

17A.

18.
19.
20.

21.

22.
23.
24.

06(Service Matter)
0607(Condition of Service)
N/A
N/A

Whether an instructor in workshop

can be equated with a teacher in
Engineering College for the purpose
of
determining
the
age
of
superannuation when there exists
intelligible
differentia
clearly
distinguishing the two positions/
posts
in
terms
of
education
qualifications, experience and job
responsibilities?
N/A

N/A
N/A

Whether the petition is against

interlocutory/final order/decree in the
FINAL ORDER
case:
If it is a fresh matter, please state the High Court of Judicature at Patna,
name of the High Court and the Coram Honble Justice Mr. Shiva Kirti Singh
in the impugned Judgment/Order:
Honble Justice Mr. V. Nath
If the matter was already listed in this
Court:
(a) When was it listed?
N/A
(b) What was the Coram?
c) What was the direction of the Court?
Whether a date has already been fixed
either by Court or on being mentioned,
N/A
for the bearing of matter? If so, please
indicate the date fixed:
Is there a caveator? If so, whether a
notice has been issued to him?
N/A
Whether
date
entered
in
the
N/A
Computer?
If it is a criminal matter, please state:a) Whether accused has surrendered:
N/A
b) Nature of Offence, i.e., Convicted
under Section with Act:
N/A

24E.

c) Sentenced awarded:
d) Sentence already under gone by the
accused:
(i) FIR/RC/ etc:
Date of Registration of FIR etc:
Name & Place of the Police Station:
(ii) Name & Place of Trial Court:
Case No. in Trial Court and Date of
Judgment:
(iii) Name and Place of 1st Appellate
Court:
Case No. in 1st Appellate Court &
date of Judgment:

N/A
N/A

N/A
N/A
N/A

(MANISH KUMAR)
PETITIONER IN PERSON
NEW DELHI
DATED:

SYNOPSIS
The petitioner prefers a writ petition under Article 32 of
the Constitution of India as public interest litigation for
the protection of Fundamental Rights of the Police
personnel of the country and for issuance of writ of
mandamus & certiorari against the administrative and
judicial decisions violating the various Fundamental
Rights guaranteed under the Constitution. It is also
prayed for issuance of directions for enforcement of
statutory provisions for the protection of rights of police
and general public from threat/damage to life and
property caused by violent agitations.

The petitioner, a practicing Lawyer and member of

Supreme Court Bar Association seeks indulgence of this
Honble Court for the protection of Fundamental Rights
of Police personnel of the country and issuance of
direction/guidelines to enforce the statutory provisions.
The declining morale of the police and threat of
administrative or legal proceeding have resulted into

increasing violent agitation on road or public places

causing serious threat to the security of the people in the
country.
In the recent time the trend of attack on Police has
reached to such a level that in almost every mass
agitation, however, small or big it may be, the police
personnel are targeted, injured and killed. The police
vehicles are set on fire and the public properties are
damaged. In the entire event the police become ultimate
victim. If the police take lawful actions, they are
subjected to administrative or political harassments.
They are transferred, put to suspension, dismissed or
ranked irresponsible for doing their statutory and
constitutional duties. If the police fail to take action the
same consequence follows.

In the recent time the suo-motu cognizance have been

taken by this Honble Court on the basis of media
reportings. The print and electronic media, for the
reasons best known to them, make scathing attacks on

the conduct and morale of police by displaying selective

photographs and video clips. Some recent examples are
as follows:1.

Suo-motu cognizance was taken of the incidents

regarding large scale destruction of public property
during gujjar agitation and failure of the police to
take preventive action in the State of Haryana, Uttar
Pradesh and Delhi. It was registered as WP (Crl) No.
77/2007.

The

writ

petition

was

decided

and

reported as 2009 (5) SCC 212.

2.

Suo-motu cognizance of incident regarding police

action on 04/05.06.2011 in Ramlila Maidan, New
Delhi. It was registered as WP (Crl) No. 122/2011. It
has been decided and reported as 2012 (5) SCC 1.

3.

Suo-motu cognizance of incident regarding police

action in Taran Taran, Punjab and Patna, Bihar. It
has been registered as WP (C) No. 139/2013.

The police are subjected to administrative and legal

proceedings for doing their duties mainly on the ground
of taking action or observing restrain. The Fundamental

Rights guaranteed under Article 14 and 21 and the

statutory rights available to them are violated. The low
rank officers are punished high police officers are
transferred or defamed for obeying orders and doing their
legal duties.
The police forces in India are most vulnerable, ill-trained,
over-worked,

strained

and

subjected

to

various

commands and duties. Despite all adverse working

conditions they are subjected to mob violence, media trial
and finally administrative or judicial actions.

It

is

respectfully

submitted

that

several

statutory

provisions as contained in Criminal Procedure Code,

1973, India Penal Code, 1860, Police Act. 1861, etc are
ignored or violated while taking action or deciding the
validity of police action. Any prima-facie opinion or
punitive action without detailed enquiry causes serious
prejudices and violates the statutory & fundamental
rights of the Police personnel. The presumption that the
police action was unwarranted or police have acted in a

barbaric manner seriously infringes the fundamental and

statutory rights of the police.

POLICE ACT, 1861

Section 23. Duties of police-officers:- It shall be the duty
of every police-officer promptly, to obey and execute all
orders and warrants lawfully issued to him by any
competent

authority;

to

collect

and

communicate

intelligence affecting the public peace; to prevent the

commission of offences and public nuisances; to detect
and bring offences to justice and to apprehend all
persons whom he is legally authorised to apprehend, and
for whose apprehension sufficient ground exists; and it
shall be lawful for every police-officer, for any of the
purposes mentioned in this section, without a warrant to
enter and inspect, any drinking-shop, gaming-house or
other place of resort of loose and disorderly characters.
29. Penalties for neglect of duty, etc:- Every police-officer
who shall be guilty of any violation of duty or wilful
breach or neglect of any rule or regulation of lawful order

made by competent authority, or who shall withdraw

from the duties of his office without permission, or
without having given previous notice for the period of two
months, or who, being absent on leave shall fail, without
reasonable cause, to report himself for duty on the
expiration of such leave or who shall engage without
authority in any employment other than his police duty,
or who shall be guilty of cowardice, or who shall offer any
unwarrantable personal violence to any person in his
custody, shall be liable, on conviction before a Magistrate,
to a penalty not exceeding three months pay, or to
imprisonment, with or without hard labour, for a period
not exceeding three months, or to both.
30. Regulation of public assemblies and processions and
licensing of the same:(l) The District Superintendent or Assistant District
Superintendent of Police may, as occasion required,
direct the conduct of all assemblies and processions on
the

public

roads,

or

in

the

public

streets

or

thoroughfares, and prescribe the routes by which, and

the times at which, such processions may pass.
(2) He may also, on being satisfied that it is intended by
any persons or class of persons to convene or collect an
assembly in any such road, street or thoroughfare, or to
form a procession which would, in the judgment of the
Magistrate of the district, or of the sub-division of a
district, if uncontrolled, be likely to cause a breach of the
peace, require by general or special notice that the
persons

convening

or

collecting

such

assembly

or

directing or promoting such procession shall apply for a

license.
(3) On such application being made, he may issue a
license, specifying the names of the licensees and
defining the conditions on which alone such assembly or
such procession is to be permitted to take place, and
otherwise giving effect to this section: Provided that no
fee shall be charged on the application for, or grant of any
such license.

(4) Music in the streets:- He may also regulate the extent

to which music may be used in streets on the occasion of
festivals and ceremonies.
3OA. Powers with regard to assemblies and processions
violating conditions of licence:- (l) Any Magistrate or
District Superintendent of Police or Assistant District
Superintendent of Police or Inspector of Police or any
police-officer in charge of a station may stop any
procession which violates the conditions of a license
granted under the last foregoing section, and may order it
or any assembly, which violates any such conditions, as
aforesaid, to disperse.
(2) Any procession or assembly which neglects or refuses
to obey any order given under the last preceding subsection, shall be deemed to be an unlawful assembly.
31. Police to keep order on public roads, etc:- It shall be
the duty of the police to keep order on the public roads,
and in the public streets, thoroughfares, ghats and
landing places, and at all other places of public resort,

and

to

prevent

obstruction

on

the

occasions

of

assemblies and processions on the public roads and in

the public streets, or in the neighbourhood of places of
worship, during the time of public worship, and in any
case when any road, street, thoroughfare, ghat or
landing-place may be thronged or may be liable to be
obstructed.
It has been provided that the police shall be punished for
being cowardice.

CRIMINAL PROCEDURE CODE, 1973

CHAPTER X
MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY,
A.-Unlawful assemblies
S. 129. Dispersal of assembly by use of civil force. (1)
Any Executive Magistrate or officer in charge of a
police station or, in the absence of such officer in
charge, any police officer, not below the rank of a
sub-inspector,

may

command

any

unlawful

assembly, or any assembly of five or more persons

likely to cause a disturbance of the public peace, to

disperse ; and it shall thereupon be the duty of the
members of such assembly to disperse accordingly.
(2)

If, upon being so commanded, any such assembly

does

not

disperse,

or

if,

without

being

so

commanded, it conducts itself in such a manner as

to show a determination not to disperse, any
Executive Magistrate or police officer referred to in
sub-section (1), may proceed to disperse such
assembly by force, and may require the assistance
of any male person, not being an officer or member
of the armed forces and acting as such, for the
purpose of dispersing such assembly, and, if
necessary, arresting and confining the persons who
form part of it, in order to disperse such assembly
or that they may be punished according to law.
S. 130.Use of armed forces to disperse assembly. (1) If
any such assembly cannot be otherwise dispersed,
and if it is necessary for the public security that it
should be dispersed, the Executive Magistrate of the

highest rank who is present may cause it to be

dispersed by the armed forces.
(2)

Such

Magistrate

may

require

any

officer

in

command of any group of persons belonging to the

armed forces to disperse the assembly with the help
of the armed forces under his command, and to
arrest and confine such persons forming part of it
as the Magistrate may direct, or as it may be
necessary to arrest and confine in order to disperse
the assembly or to have them punished according to
law.
(3)

Every such officer of the armed forces shall obey

such requisition in such manner as he thinks fit,
but in so doing he shall use as little force, and do as
little injury to person and property, as may be
consistent

with

dispersing

the

assembly

and

arresting and detaining such persons.

131.Power of certain armed force officers to disperse
assembly- When the public security is manifestly

endangered by any such assembly and no Executive

Magistrate

can

be

communicated

with,

any

commissioned or gazetted officer of the armed forces

may disperse such assembly with the help of the
armed forces under his command, and may arrest
and confine any persons forming part of it, in order
to disperse such assembly or that they may be
punished according to law; but if, while he is acting
under this section, it becomes practicable for him to
communicate with an Executive Magistrate, he shall
do

so,

and

shall

thenceforward

obey

the

instructions of the Magistrate, as to whether he

shall or shall not continue such action.
132. Protection against prosecution for acts done under
preceding sections. (1) No prosecution against any
person for any act purporting to be done under
section 129, section 130 or section 131 shall be
instituted in any Criminal Court except-

(a)

with the sanction of the Central Government where

such person is an officer or member of the armed
forces ;

(b)

with the sanction of the State Government in any

other case.

(2)

(a) No Executive Magistrate or police officer acting

under any of the said sections in good faith ;
(b) no person doing any act in good faith in
compliance with a requisition under section 129 or
section 130 ;
(c) no officer of the armed forces acting under
section 131 in good faith ;
(d) no member of the armed forces doing any act in
obedience to any order which he was bound to obey;
shall be deemed to have thereby committed an
offence.

(3)

In this section and in the preceding sections of this

Chapter,-

(a) the expression "armed forces" means the military,

naval and air forces, operating as land forces and
includes any other Armed Forces of the Union so
operating;
(b) "officer", in relation to the armed forces, means a
person commissioned, gazetted or in pay as an
officer of the armed forces and includes a junior
commissioned officer, a

warrant officer, a petty

officer, a non-commissioned officer and a nongazetted officer;

(c) "member", in relation to the armed forces, means a
person in the armed forces other than an officer.

The petitioner seeks leave of this Honble Court to place

some instances where the police restrained from taking
appropriate action and lost life while protecting the
majesty of law

A.

On 12 of February, 2013 one Police Officer was

killed by unruly mob in Kolkata and Police could
not prevent the incident.

B.

One Deputy Superintendent of Police was killed in

Pratapgarh UP and Police personnel had to run
away, may be due to fear of political or legal
prosecutions.

C.

G. Krishnaigh IAS and then DM Gopalganj, Bihar

was killed by unruly mob in the presence of
hundreds of police personnel and finally only one
person

was

convicted,

Police

remained

mute

spectators perhaps due to political or administrative

commands.
D.

More than 27 police personnel were injured and

Police Vehicles destroyed by mob on 03.06.2011 in
Forbeshganj, Bihar. Police opened fire and 4 persons
died. Writ Petition (Crl) No. 195/2011 seeking CBI
enquiry against the Police action, several complaint

cases have been filed and pending against injured

police personnel.
E.

One Police personnel died during the Delhi Gang

rape agitation in December, 2012

F.

In the first week of January, 2013 49 Police

Personnel were injured in Mumbai by unruly mob
and police could not take appropriate measure
perhaps again due to fear of loosing their jobs.

The media reporting, the prima-facie opinion of the

executive or suo-motu cognizance of the incident on the
basis of media reporting is violative of statutory and
constitutional rights of the Police. It not only demoralizes
the entire police force but at the same time encourages
the unruly people to become more violent against the
helpless police.

It is now a settled principle of law after the decision of

this Honble Court in the case of A.R. Antulay Vs R.S.
Nayak reported as 1988 (2) SCC 602 that even the

judicial decisions can be violative of fundamental rights.

The court cannot make an order inconsistent with the
fundamental rights guaranteed under Part-III of the
constitution.
The condition and predicament of the Police has been
recognized in several binding decisions. The nature of
agitation and conduct of agitators have changed. The
action of police cannot be viewed on the basis of media
reporting. The observation in the judgment of this
Honble Court reported as 1997 (1) SCC 416, D.K. Basu
v. State of W.B is worth mentioning:-

Para 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.

It has been observed that freedom of Individual must

yield to security of State. The security of State is ensured
by the rule of law. The police actions, particularly dealing
with unlawful assembly are always in open and putting
them to adverse inference or conclusion on the basis of
selective media reporting would amount to violation of
their fundamental rights. The judgment reported as 2009
(5) SCC 212 had proposed certain guidelines for such
agitation for the States.
The petitioner also prays for issuance of mandamus to
enforce the statutory provisions for the protection of
Police from administrative action and judicial inferences
without following the principle of natural justice.

It has been held in several binding decisions that Court

can issue Mandamus to enforce the law and also
guidelines in the absence of statutory framework. It has

been reiterated in judgment reported as 2009 (5) SCC

212 at para 19 & 25.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL 3URISDICTION
WRIT PETITION (CIVIL) NO.____OF 2013
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

Manish Kumar

Petitioner
Versus

Union of India and Others

1.

Respondents

Manish Kumar, Advocate

11/9 Pant Nagar,
Jangpura Extension
New Delhi-14.
Petitioner No. 1
Versus

1.

Union of India,
Through its Secretary,
Ministry of Law and Justice,
4th Floor, A Wing, Rajendra Prasad Road,
Shastri Bhavan,
New Delhi-110001
Respondent No. 1

2.

State of Arunachal Pradesh,

Through its Chief Secretary,

Arunachal Pradesh Civil Secretariat,

Itanagar- 791111
Respondent No. 2
3.

State of Andhra Pradesh,

Through its Chief Secretary,
Secretariat Building,
Hyderabad-500022
Respondent No. 3

4.

State of Assam,
Through its Chief Secretary,
Assam Sachivalaya, Block C, 3 Floor,
Dispur, Guwahati-781006
Respondent No. 4

5.

State of Bihar,
Through its Chief Secretary,
Old Secretariat,
Patna-800015
Respondent No. 5

6.

State of Chhattisgarh,
Through its Chief Secretary,
DKS Bhawan, Mantralaya
Raipur-492001
Respondent No. 6

7.

State of Goa,

Through its Chief Secretary,

Secretariat, Porvoriam,
Goa-403001.
Respondent No. 7
8.

State of Gujarat,
Through its Chief Secretary,
Block No.1, 3 Floor
New Sachivalaya Complex,
Gandhinagar-382010
Respondent No. 8

9.

State of Haryana,
Through its Chief Secretary,
Harayana Civil Secretariat,
Chandigarh-160009
Respondent No. 9

10.

State of Himachal Pradesh,

Through its Chief Secretary,
Secretariat, Shimla-171001
Respondent No. 10

11.

State of Jammu and Kashmir,

Through its Chief Secretary,
Civil Secretariat, Shrinagar-190001
Respondent No. 11

12.

State of Jharkhand,

Through its Chief Secretary,

Secretariat, Ranchi-834004
Respondent No. 12
13.

State of Karnataka,
Through its Chief Secretary,
3rd Floor, R. No. 320,
Vidhan Sauda, Secretariat,
Bangalore-560001
Respondent No. 13

14.

State of Kerala,
Through its Chief Secretary,
Secretariat, Thiruvananthapuram-695 001
Respondent No. 14

15.

State of Madhya Pradesh,

Through its Chief Secretary,
Mantralaya, Vallabh Bhawan,
Bhopal-462004
Respondent No. 15

16.

State of Maharashtra,
Through its Chief Secretary,
Room No.518, 5th Floor,
Main Building Mantralaya,
Mumbai-400032
Respondent No. 16

17.

State of Manipur, .

Through its Chief Secretary,

Room No.171, South Block,
Secretariat,
Imphal-795001
Respondent No. 17
18.

State of Meghalaya,
Through its Chief Secretary,
Meghalaya Civil Secretariat,
Shillong-793001
Respondent No. 18

19.

State of Mizoram,
Through its Chief Secretary, Block C,
Civil Secretariat, Aizawl-796001
Respondent No. 19

20.

State of Nagaland,
Through its Chief Secretary,
Nagaland Civil Secretariat,
Kohima-790001
Respondent No. 20

21.

State of Orissa,
Through its Chief Secretary,
General Admn. Dept.,
Orrisa Secretariat,
Bhubaneshwar-751001
Respondent No. 21

22.

State of Punjab,
Through its Chief Secretary,
Punjab Civil Secretariat,
Chandigarh-160001
Respondent No. 22

23.

State of Rajasthan,
Through its Chief Secretary,
Secretariat, Jaipur-302001
Respondent No. 23

24.

State of Sikkim,
Through its Chief Secretary,
Tashiling Secretariat,
Gangtok -737101
Respondent No. 24

25.

State of Tamilnadu,
Through its Chief Secretary,
Secretariat, Chennai-600009
Respondent No. 25

26.

State of Tripura,
Through its Chief Secretary,
Civil Secretariat, Agaratala-799001
Respondent No. 26

27.

State of Uttrakhand,
Througt its Chief Secretary,

4, Subhash Road,
Secretariat, Dehradun-248001
Respondent No. 27
28.

StateofUttarPradesh,
Through its Chief Secretary,
Lal Bahadur Shastri Bhavn,
UP Secretariat,
Lucknow-226001
Respondent No. 28

29.

State of West Bengal,

Through its Chief Secretary,
Secretariat, Writers Building
Kolkata-700001
Respondent No. 29

30.

Union Territory of Andarnan Nicobar,

Through its Chief Secretary,
Secretariat, Port Blair,
Andaman -744101
Respondent No. 30

31.

Union Territory of Chandigarh,

Through its Adviser to the Administrator,
Punjab Raj Bhawan, Sector-6
Chandigarh-160017
Respondent No. 31

32.

Union Territory of Dadar Nagar Haveli,

Through its Administrator,

Secretariat, Silvassa-396230
Respondent No. 32
33.

Union Territory of Daman and Diu,

Through its Administrator,
Fort Area, Secretariat,
Moti Daman-396220
Respondent No. 33

34.

Union Territory of Lakshadweep,

Through its Administrator, Secretariat,
Kavaratti-682555
Respondent No. 34

35.

Union Territory of Pondicherry,

Through its Chief Secretary,
Puducherry Administration, Chief Secretariat,
1 Beach Road, U.T. of Puducherry,
Puducherry- 605001
Respondent No. 35

36.

National Capital Territory of Delhi,

Through its Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi- 110002
Respondent No. 36

WRIT PETITION UNDER ARTICLE 32

OF THE CONSTITUTION OF INDIA

TO
THE HONBLE THE CHIEF JUSTICE OF
INDIA AND HISHONBLE COMPANION
JUSTICES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH

1.

The Petitioners have approached this Honble Court,

under Article 32 of the Constitution, on account of
the grave situation that has been created and
further precipitated by administrative and judicial
act of the State, resulting in the deprivation of the
fundamental rights of the police in the country as
guaranteed under Articles 14 and 21 of the
Constitution of India. In essence, the petitioners
seek certain directions/orders/ guidelines from this
Honble Court in relation to the issues involved in
the present writ petition.

2.

That

the

petitioner

has

not

approached

any

competent authority for the relief prayed for in the

writ petition.
3.

That the petitioner is a practicing lawyer in the

Supreme Court of India, enrolled with Bihar Bar
Counsel and a member of Supreme Court Bar
Association. The public interest litigation is being
filed in view of the facts and circumstances
mentioned in the writ petition. The Police Force
(Restriction of Rights) Rule 1966 restricts the right
of the police provided under Article 19 (1) (c) of the
Constitution. The petitioner has preferred the writ
petition for the protection of fundamental rights of
the police personnel and for issuance of appropriate
directions as prayed for in the writ petition.

4.

That the interest of general public is seriously being

affected due to declining morale of police personnel
and

unwarranted

interferences

in

political
controlling

or

administrative

the

daily

violent

agitations at public places affecting the normal life

and causing serious threat to private and public

property.
5.

That the petitioner is seriously concerned with the

recent incidents of attack on police and adverse
administrative and judicial presumptions against
the police on the basis of selective media reportings.

6.

That the police hesitate to take actions as per law

due to threat to punishment or prosecution and as
a result in every agitation police personnel are killed
or injured and huge damages are caused to private
and public property.

7.

That the statutory provisions and the various

decisions of this Honble Court are being ignored to
deal with and bring a balance between the right to
protest and limitations thereon. The security of the
State

is

being

compromised

due

to

political,

administrative and judicial presumptions against

every police action.
8.

That

Suo-motu

cognizance

was

taken

of

the

incidents regarding large scale destruction of public

property during gujjar agitation and failure of the

police to take preventive action in the State of
Haryana, Uttar Pradesh and Delhi. It was registered
as

WP

(Crl)

No.

77/2007.

The

order

dated

05.06.2007 was reported as 2007 (4) SCC 474. The

writ petition was finally decided and reported as
2009 (5) SCC 212. The judgment reported as2007
(4) SCC 474 is annexed as ANNEXURE-P-1. And the
judgment reported as 2009 (5) SCC 212 is annexed
as ANNEXURE-P-2
9.

That Suo-motu cognizance of incident regarding

police action in Taran Taran, Punjab and Patna,
Bihar. It has been registered as WP (C) 139/2013. A
true copy of the order dated 06.03.2013 is annexed
as ANNEXURE-P-3.

10.

That the police are being targeted in the absence of

appropriate action have lost life while protecting the
majesty of law. On 12 of February, 2013 one Police
Officer was killed by unruly mob in Kolkata and
Police could not prevent the incident. One Deputy

Superintendent of Police was killed in Pratapgarh

UP and Police personnel had to run away. More
than 27 police personnel were injured and Police
Vehicles

destroyed

by

mob

on

03.06.2011

in

Forbeshganj, Bihar. One Police personnel died

during the Delhi Gang rape agitation in December,
2012. In the first week of January, 2013 49 Police
Personnel were injured in Mumbai by unruly mob
and police could not take appropriate measure
perhaps again due to fear of losing their jobs.
11.

The media reporting, the prima-facie opinion of the

executive or suo-motu cognizance of the incident on
the basis of media reporting is violative of statutory
and constitutional rights of the Police. It not only
demoralizes the entire police force but at the same
time encourages the unruly people to become more
violent against the helpless police.

12.

That in the decision reported as 1988 (2) SCC 602

this Honble Court relied upon legal proposition
decided in the case of Prem Chand Garg Vs. Excise

Commissioner reported as AIR 1963 SC 996. The

observation of this Honble Court is quoted (para 50)
Though Article 142(1) empowers the Supreme
Court to pass any order to do complete justice
between the parties, the court cannot make an
order inconsistent with the fundamental rights
guaranteed by Part III of the Constitution. No
question of inconsistency between Article 142(1) and
Article 32 arose. Gajendragadkar, J., speaking for
the majority of the judges of this Court said that
Article 142(1) did not confer any power on this
Court to contravene the provisions of Article 32 of
the Constitution. Nor did Article 145 confer power
upon this Court to make rules, empowering it to
contravene the provisions of the fundamental right.
At page 899 of the Reports, Gajendragadkar, J.,
reiterated that the powers of this Court are no
doubt very wide and they are intended and will
always be exercised in the interests of justice. But
that is not to say that an order can be made by this

Court which is inconsistent with the fundamental

rights guaranteed by Part III of the Constitution. It
was emphasised that an order which this Court
could make in order to do complete justice between
the parties, must not only be consistent with the
fundamental rights guaranteed by the Constitution,
but it cannot

even be inconsistent

with

the

substantive provisions of the relevant statutory laws

(emphasis supplied).

GROUNDS
The writ petition has been filed in public interest on the
following grounds:
A.

Because the violation of fundamental rights of the

Police has caused serious threat to security of State,
general public, private and public property.

B.

Because the constitutional provisions, rule of law,

judicial decisions and statutory provisions are being

violated

due

to

administrative

and

judicial

presumptions against the validity of all the police

actions to protect the life and property of people of
India and Police personnel.
C.

Because In Nawabkhan Abbaskhan v. State of

Gujarat 1974 (2) SCC 121 it was held that an order
passed without hearing a party which affects his
fundamental rights, is void and as soon as the order
is declared void by a court, the decision operates
from its nativity. It is proper for this Court to act ex
debito justitiae, to act in favour of the fundamental
rights of appellant.

D.

Because in the decision of A.R. Antulay v. R.S.

Nayak, (1988) 2 SCC 602, It has been held that the
principle of finality on which the article proceeds
applies to both judgments and orders made by the
Supreme Court. But directions given per incuriam
and in violation of certain constitutional limitations
and in derogation of the principles of natural justice
can always be remedied by the court ex debito

justitiae. Shri Jethmalani's submission was that ex

debito justitiae, these directions could not be
recalled.

We

are

unable

to

agree

with

this

submission.
E.

Because this Honble Court can issue writ of

mandamus to enforce the statutory provisions and
in the absence of same can issue appropriate
guidelines to protect the rights of the citizen.

F.

Because the trend of attack on Police has reached to

such a level that in almost every mass agitation,
however, small or big it may be, the police personnel
are targeted, injured and killed. The police vehicles
are set on fire and the public properties are
damaged. In the entire event the police become
ultimate victim. If the police take lawful actions,
they are subjected to administrative or political
harassments.

They

are

transferred,

put

to

suspension, dismissed or ranked irresponsible for

doing their statutory and constitutional duties. If

the police fail to take action the same consequence

follows.
G.

Because the

police forces in India are most

vulnerable, ill-trained, over-worked, strained and

subjected to various commands and duties. Despite
all adverse working conditions they are subjected to
mob violence, media trial and finally administrative
or judicial actions.
H.

Because several statutory provisions as contained

in Criminal Procedure Code, 1973, India Penal
Code, 1860, Police Act. 1861, etc are ignored or
violated while taking action or deciding the validity
of police action. Any prima-facie opinion or punitive
action without detailed enquiry causes serious
prejudices and violates the statutory & fundamental
rights of the Police personnel. The presumption that
the police action was unwarranted or police have
acted in a barbaric manner seriously infringes the
fundamental and statutory rights of the police.

I.

Because

the

media

reporting,

the

prima-facie

opinion of the executive or suo-motu cognizance of

the incident on the basis of media reporting is
violative of statutory and constitutional rights of the
Police. It not only demoralizes the entire police force
but at the same time encourages the unruly people
to become more violent against the helpless police.
J.

Because

the

inconsistent

court
with

cannot
the

make

an

fundamental

order
rights

guaranteed under Part-III of the constitution.

K.

Because the condition and predicament of the Police

has been recognized in several binding decisions.
The nature of agitation and conduct of agitators
have changed. The action of police cannot be viewed
on the basis of media reporting. The observation in
the judgment of this Honble Court reported as
1997 (1) SCC 416, D.K. Basu v. State of W.B is
being ignored.

L.

Because the freedom of Individual must yield to

security of State.

M.

Because the fundamental rights of the police and

security of the general people is being compromised
in view of the facts and circumstances mentioned in
the writ petition.

Prayer
The petitioner therefore prays for issuance of appropriate
writ/order/direction by way of:
A.

Writ of mandamus & certiorari against the

administrative and judicial decisions violating
the various Fundamental Rights guaranteed
under the Constitution.

B.

Order or Direction for the enforcement of

statutory provisions for the protection of rights
of Police and general public from violent
agitations causing damage to life and property.

C.

Order or Direction restraining the Executive

and Judiciary from drawing a presumption

against the action of police acting under the

constitutional and statutory obligations.

D.

Order or Directions to the Union of India, all

the State and Union Territories to sensitize
and modernize the police force to deal with
present situation in effective manner.

E.

Order/guidelines to deal with the agitations as

suggested in the decision reported as 2009 (5)
SCC 212.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS

IS DUTY BOUND SHALL EVER PRAY.
DRAWN & FILED BY

MANISH KUMAR
PETITIONER IN PERSON
DRAWN ON;
PLACE;