Police Encounters are also known as Encounter killings" or "retaliatory killings" or "extra-judicial executions"
. The defense given by Police to justify such encounters is that it was done or carried out in their own self defense. The defense of encounter killing is only available to Police. On the contrary private defense is available to all citizens to confront with situations of grave danger to their life. Indian Penal Code (IPC), contains provisions related to private defense (Sections 96 to 100).
SUPREME COURT , in "PUCL vs State of Maharashtra AIR 2014" laid down guidelines and standard procedure to investigate a Police encounter. The Guidelines which were laid down are as follows:
Whenever any Police Department receives any substantial information or tip regarding any grave criminal offence it must always be recorded in written or electronic form. Although it must not contain the details of the alleged accused or his/her location.
Investigations of such encounters should be done in a transparent manner. It could be done by an independent Criminal Investigation Department (CID) team or by a team of another Police station under the supervision of Senior Officer.
Reports of all such encounters must without any delays should be sent to a Judicial Magistrate.
It is the duty of Police officers to inform National or State Human Right Commissions as the case may of any such encounters.
In such cases of encounters there should be no delay in sending First Information Report (FIR), panchnamas, and Police diary entries to the concerned court for investigation.
The dependants of the accused/ criminal must be informed immediately of such encounter.
In such cases of encounters a request for grant of compensation to the dependents of victim must applied as per the provisions of Section 357-A of the Code of Criminal Procedure.
The Police officers who was involved in such encounters must surrender their weapon for forensic and ballistic examination.
No promotional or gallantry awards must be given to the Police officers immediately after such encounters.
If the dependents of the accused/criminal thinks fit that the above laid procedure has not been followed then they can file a complaint with the Sessions Judge.
A Case was taken up for hearing on 12-06-2020 at punjab & haryana high court through video
conferencing due to the pandemic of COVID-19.
Investigating police officer had to produce recovery memo and all
other prima facie evidence collected by him, in the court.
while in court proceedings hon'ble justice RAJIV NARAIN RAINA finds the term 'Nigro' used while referring to
an African national in the challan papers ( charge sheet) presented before the trial court in an NDPS case.
Hon'ble court observes & orders
This is a highly offensive
word across the globe and no one has any business to use it, and much
less the police. Hence, it is directed never to use the unprintable word in
any police document including in challans(charge sheet) or anywhere else on case
papers including in investigation reports. This brings shame to India and
hatred for the country. The police appears to have assumed that every
black is a drug peddler and should be treated as such. This is terrible
thinking.
5. The Director General of Police, Punjab is requested to
consider the entire issue and notify instructions in this regard to the
police force calling upon them never to use the offensive term 'nigro' orCRM-M-13502-2020 2
'negro' while referring to “black” persons in case papers. They deserve
the dignity and respect in a foreign land as visitors or students in India
from Africa temporarily living in our country, which prides itself of
many peoples of all colours of the skin ranging from white to black and
aboriginal. This has nothing to do with investigation or crime.
6. Therefore, the investigating officers and the police officials
that record FIRs be immediately sensitized and warned on the issue by
ensuring that no person should be looked down upon on the basis of the
colour of his/her skin. All Africans are our friends and when they come
to India either as visitors or students they are our valuable guests and
we should be reminded that India is rich in its traditions of 'mehman
nawazi' and 'attithi sanskar/satkar' and prides itself on this. They should
simply be referred to by the country of their origin in case papers.
7. Mahatama Gandhi was politically nurtured in South Africa
for two decades pioneering the apartheid movement and fighting against
colour discrimination and for freedom against black laws as he did for
ours in different ways in the freedom struggle, and he counted many
friends from amongst those people. Let us follow that inspiring precept
and pay due respect to each other and other people. We are, professedly,
a tolerant sub-continent of “browns” in all its shades, but more often
than not, display a perverted and primitive mind-set looking down on
others without looking within ourselves. For many centuries we have
been slaves. Freedom does not lend its wings to our countrymen to flyanywhere they wish and in any manner they like and abuse foreigners
on the street calling them 'kalla'. To the contrary, freedom teaches love
for human dignity and respect for fellowman.
8. This aspect needs to be corrected by sanction of the law by
ordering strict action against the policemen who indulge in this
character assassination based on physical features, investigation of
crime apart, investigation which should be non-aggressive in the search
for truth and commission of cognizable offences. This is socially
unacceptable but what can one expect from an uneducated and
insensitive constabulary, as in this case. The pernicious practice should
be stopped forthwith and the police commanded on pain of disciplinary
action never to address anyone by that description, forget about writing
it down in official papers of permanent State record. .
ABOVE WRITTEN IS COURT'S ORDER& OBSERVATION .WHAT ABOUT GENERAL PUBLIC? IS SOCIETY AWARE OF WORD NIGRO ? IS SOCIETY READY TO GIVE EQUAL RESPECT TO EACH & EVERY MEMBER OF SOCIETY ?
LETS TAKE PLEDGE TO REMOVE THIS EVIL OF SOCIETY LETS PLEDGE TO RESPECT EACH & EVERYONE IRRESPECTIVE OF CAST ,COLOUR & RELIGION
Bhagat Singh At the age of 23, Bhagat Singh was hanged on 23 March 1931 along with revolutionaries Rajguru and Sukhdev.
Now, it has surfaced that his sentence was pronounced by the court, which did not have the approval of the legislature for its constitution. The death warrant issued for Bhagat Singh, Sukhdev and Rajguru was invalid. And, the trial violated the principle of natural justice.
WHY BHAGAT SINGH FACED TRAIL ?
Bhagat Singh and Batukeshwar Dutt threw bombs in the Central Legislative Assembly on 8 April 1929 in protest against the Public Safety Bill. He also threw out some handwritten sheets to illustrate his demands.
It was a low-intensity bomb that was not intended to kill or injure any member of the Legislative Assembly. As soon as the explosion occurred, Bhagat Singh and BK Dutt stood there and later surrendered themselves to the police.
The trial began on 7 May before the British Magistrate BP Pool. Bhagat Singh and BK Dutt were represented by Advocate Asif Ali, a member of the Indian National Congress, while public prosecutor Rai Bahadur was Suryanarayana. Stating that Bhagat Singh and BK Dutt "hurled bombs with the intent to kill or injure King Majesty's subjects", the judge framed the charges and presented the two revolutionaries to the Sessions Court under British Judge Leonard Middleton. Some of the questions asked in court were:
Judge: ‘Were you present in the Assembly on the 8th of April, 1929?”
Bhagat Singh: ‘As far as this case is concerned, I feel no necessity to make a statement at this stage. When I do, I will make the statement.”
Judge: ‘When you arrived in the court, you shouted, “Long Live Revolution!”. What do you mean by it?’ then asif ali lawyer of bhagat singh objected the question and objection was sustained
The two revolutionaries refused to cooperate in the trial, sparked by a false allegation by the police that Bhagat Singh opened fire in the Legislative Assembly. Bhagat Singh carried the pistol to the Central Hall but at the time of his arrest he handed it over to the police. Despite this, the court convicted him and sentenced him to life (14 years).
ANOTHER TRAIL FACED BY BHAGAT SINGH( LAHORE CONSPIRACY CASE)
But the British government was not satisfied with this alone. Bhagat Singh was linked to another case - the murder of British police officer John P. Saunders and head constable Chanan Singh. The police found their case based on similarities in the handwriting of leaflets thrown by Bhagat Singh in the Assembly Chamber and those found after the killing of Saunders at various places in Lahore.
This case is known as Lahore Conspiracy Case. Bhagat Singh, Sukhdev and Rajguru were prosecuted for the murder of Sanders and Chanan Singh. The trial in the Lahore Conspiracy Case started in Borstal Jail and was heard by first class Magistrate Pandit Shri Kishan, who was later conferred the title of Rai Sahab by the British Government.
HUNGER STRIKE IN JAIL BY BHAGAT SINGH,
Kureh Khak hai Gardash main Tapash si Meri ,
Main Voh majnu huan Jo Jindan main Bhee Azad Rahasher written by -Saheed Baghat Singh in jailgh in jail
Meanwhile, Bhagat Singh and his colleagues started a hunger strike to protest the prisoners' living conditions in the jail. He and other revolutionaries refused to cooperate with the trial, which did not progress much after the framing of charges against him, despite the fabricated witnesses, the accused-confessors and the evidence leveled.
The British government was losing patience as Bhagat Singh's popularity was increasing despite being in prison. On May 1, 1930, Viceroy Lord Irwin promised an ordinance to set up a special tribunal to conduct the hearing of the Lahore Conspiracy Case.
On 7 October, three weeks before its term ended, the tribunal convicted Bhagat Singh, Sukhdev and Rajguru for the murder of Saunders and Chanan Singh.
WHY CONVICTION WAS ILLEGAL
The entire case against Bhagat Singh was flawed. The FIR lodged in the murder of Saunders did not name the "two unknown" accused. Bhagat Singh was not named as an accused or suspect in the FIR. Even later his name was not added. It was only after the trial in the bomb case started that the British police linked him to the Lahore conspiracy case.
The ordinance that was brought to set up a tribunal to hear the Lahore Conspiracy Case never got the legislature's approval. Its period expired after the tribunal convicted Bhagat Singh. Under the provisions of the 1935 Act, an ordinance was required to procure the approval of the legislature.
The death warrant issued by the tribunal expired before being executed by Bhagat Singh, Sukhdev and Rajguru. The death warrant on which they were executed was not issued by the trial court, as the ordinance ended in its existence and did not receive legislative approval. Under the law, only the trial court was empowered to issue a death warrant. The death warrant thus issued and executed was invalid.
The trial against Bhagat Singh, Sukhdev and Rajguru declined the natural principle of justice. The accused were never presented before the tribunal. His defense was not heard. The defense counsel was not allowed to cross-examine approximately 450 prosecution witnesses. Only those witnesses who were allowed to cross-examine by defense counsel
usually one approach the court for own interest but there are some case which were beneficiary for the whole nation. out of those cases one case was banwari devi case or vishakha case. this case forced Indian parliament pass the law against sexual harassment at workplace .
BUT Prior to the Visakha Guidelines, the workplace was dangerous for many women, especially in the case of sexual harassment. In 1992, Bhanwari Devi was gang-raped by upper caste men in her village as she tried to raise her voice against child marriage. Her vagina swab was taken from her body 48 hours after the incident due to gross negligence. Ideally, this should be done within 24 hours. Shockingly, the judge presiding over his case (this was the seventh judge after the six others were removed) acquitted the accused, even stating, "Since the perpetrators were upper caste men , so rape could not happen. " This happened because Bhanwari was from a lower caste. After the acquittal over the acquittal, Visakha and some other women's groups filed a public interest litigation against the state of Rajasthan and the Union of India, forcing the latter to adopt Visakha guidelines, which now protect the working Women all over the country.
The Supreme Court had made it compulsory for every state, union territory and regulatory body to implement a legal mechanism for implementing the guidelines issued in the 'Visakha' case, allowing employers to prevent sexual harassment. To realize and ensure this. Women at their workplaces.
A three-judge bench of the Supreme Court clarified that the guidelines issued in the Visakha case should be implemented not only in form but also in substance to ensure a safe and secure place and environment for a woman. Could. His workplace. The bench also states that there is a lack of a law and proper mechanism to address complaints of sexual harassment of women, such as women doctors / nurses or architects and even domestic workers and in other cases, because often Women are victims of sexual harassment. Often reluctant to accept it due to some social stigma / fanaticism, they think that it affects their dignity and respect in society.
Sexual harassment at workplaces is an expression of the continuing gender discrimination in society that is rarely recognized. The bench has also stated that if there exists a case for modifying old acts and bringing in new laws to protect women from indecency, humiliation and humiliation occurring in their workplaces, homes and other places, it would certainly Will react To educate girls and women in all fields and protect them from violence in all forms (eg domestic violence, sexual harassment at work); latter on law was enacted by the Parliament namely Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 .
KNOW THE EXACT LAW OF SEXUAL HARASSMENT
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
WHAT IS SEXUAL HARASSMENT AS PER LAW?
AS PER LAW OF 2013 SEXUAL HARASSMENT INCLUDES:
.Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; .inappropriate questions or remarks about a person’s sex life
.Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
Unwelcome social invitations with sexual overtones, commonly seen as flirting
Unwelcome sexual advances
According to the LAW, “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem. It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.
The Act specifies five circumstances that amount to sexual harassment. These are:
Implied or explicit promise of preferential treatment in her employment
Implied or explicit threat of detrimental treatment
Implied or explicit threat about her present or future employment status
Interference with her work or creating an offensive or hostile work environment
Humiliating treatment likely to affect her health or safety.
Who is an ‘aggrieved woman’ as per the Act?
According to the Handbook on Sexual Harassment of Women at Workplace, the Act recognises the right of every woman to a safe and secure workplace environment “irrespective of her age or employment/work status”. Any woman coming to any workplace “whether in the capacity of regular, temporary, adhoc, or daily wages basis” is protected under the Act.
It further says such women can be “engaged directly or through an agent including a contractor, with or without the knowledge of the principal employer”; they may be working for remuneration, or on a voluntary basis, a contract worker, probationer, trainee, apprentice, or called by any other such name.
The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, cannot be made public, as per the Act.
How to file a complaint of sexual harassment at workplace?
The 2013 Act says the aggrieved woman may make, in writing, a complaint of sexual harassment. However, a written complaint is not mandatory. If she cannot give a written complaint, the Act says, any member of the ICC “shall” render “all reasonable assistance” to her for facilitating it. Also, if the woman is unable to make a complaint citing “physical or mental incapacity or death or otherwise”, her legal heir may do so.
Time-frame for making a complaint to ICC
According to the Act, the complaint of sexual harassment has to be made “within three months from the date of the incident”. If such incidents have taken place over a time, the complaint should be made within three months from the date of the last incident. However, the ICC has the discretion to “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”. The ICC needs to record these reasons to exercise the right.
after a complaint is made?
Once a complaint is made, the ICC can offer conciliation under Section 10 of the Act. Before starting an inquiry, the ICC may “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent though conciliation”. It is to be seen, however, that “no monetary settlement shall be made as a basis of conciliation”.
If conciliation is not an option, the ICC may straightaway forward the complaint to the police under RELEVANT SECTIONS OF IPC (word, gesture or act intended to insult the modesty of a woman) . Or, it can start its own inquiry and complete it within 90 days.
Enjoying powers similar to those of a civil court, the ICC can summon and examine any person on oath, can ask for production of related documents before it. During the inquiry, if the woman makes a written request, the ICC “may” also recommend her transfer, a three-month leave, or any other relief it deems fit. Once the inquiry is over, the ICC is to provide a report to the employer within 10 days, making available a copy of it to the victim too.
What happens after the ICC report?
If the ICC finds the allegations true, it will recommend to the company to take action against the accused for misconduct “in accordance with the provisions of the service rules”. In case the company does not have service rules, the recommended action may include disciplinary action, including a written apology, reprimand, warning, censure; withholding promotion/ pay raise/ increment; termination of service; counselling; community service.
The ICC can also recommend financial damages to the complainant. The amount can be decided taking into consideration “mental trauma, pain, suffering and emotional distress caused”, medical expenses incurred, loss of career opportunity, and income and financial status of the respondent.
Once the ICC furnishes its recommendations, the aggrieved woman or the respondent can challenge the report in a court of law within 90 days.
What happens to the ‘victim’ if her complaint is found to be false?
Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act deals with false complainant. If the ICC finds the complaint to be false, the Act says, it may recommend action against the woman or the person who has made the complaint. The Act, however, makes it clear that “a mere inability to substantiate a complaint or provide adequate proof need not attract legal action. Also, no action can be recommended against the complainant unless an inquiry establishes malicious intent on part of the complainant.
The 5 paise coin had been out of circulation for decades. But this is exactly the amount on which 73-year-old Ranveer Singh Yadav has been fighting the case for more than 40 years. Lakhs of rupees have been spent over the years by both parties as legal fees, with the Delhi Transport Corporation as the complainant.
Back in 1973, Mr. Yadav worked as the conductor of the DTC bus. The charge against him was that he charged a female passenger 15 paise, gave her a ticket of 10 paise and gave an additional 5 rupees.Following an allegation of investigating the employees on the bus, an internal investigation took place and in 1976 he was dismissed.Although Mr. Yadav won a case in Labor Court in 1990, in which his dismissal was illegal, the transport body appealed the following year. Till now, it was Rs. 47,000 to contest the case.
Mr. Yadav said that my children also used to ask me if I cheated. "I will be in pain to convince those I have not cheated ... other people go on pilgrimage, I am going to court."
When the High Court rejected the DTC's petition in January this year, it allowed the transport body to pay Rs. 30,000 to Mr. Yadav. The court ruled that CPF should be paid a gratuity of Rs 22 lakh and another Rs 37 lakh as CPF.
During the hearing, the court asked the DTC how many lakhs have been spent on litigation to recover 5 paise.
"There is a case where the defendant has been fighting a long battle with the DTC for more than 40 years and has not reaped the fruit despite winning the case in the Labor Court and High Court," the court said. said.
Mr. Yadav's wife Vimala said, "Whether the case is of 5 paise or 2 paise, the way we have been punished for it is lakhs of rupees. Even the currency has disappeared, but We are still stranded. "
The High Court had asked DTC to pay Yadav a gratuity of 6 lakhs and other benefits and said, "Here is a case where the defendant has been fighting a long battle with DTC for more than 41 years And despite winning the case in Labor court. Court, he has not been able to cut the fruits. "
Here a legal maxim is fully enforced "Justice delayed is justice denied" Ranveer Singh Yadav has spent 41 years of his life to prove that he has not cheated anyone for 5 paise. And the value of that 5 paise was given to him for 41 years of life and legal battle of millions of rupees. .
Lal Bihari has spent a significant part of his adult life being dead on paper. In fact he grew so used to his expired identity that he became known as Lal Bihari “Mritak” – “dead man.” In his village of Amilo, Uttar Pradesh, people on the streets simply call him “Mritak.”(dead man)
Bihari is not the only mritak. He is among the thousands who have been unlawfully registered as dead in government records by their relatives in order to capture their land and property. This often happens with the connivance of local officials.
Bihari fought for 18 years and managed to reclaim his identity in 1994. His fight hasn’t stopped. He became a full time activist to help those who face the same plight that he did – being stripped of an identity and land rights.
when Lal Bihari was 22 years old went to a bank for loan against his ancestral property that initially belong to his father, is been told that is dead according to records and the land belongs to his uncle. This may sound odd to many but this had happened in one of villages of Azamgarh district, Uttar Pradesh. In 1977, when Lal Bihari (born in 1955) went approached the bank for loan, he has been declared dead over a year by the official sitting there. To regain his identity, Lal Bihari had to fight many odds and finally after 18years of struggle the court gave him his life back on paper. According to the government’s RTI responses to petitions filed by Bihari – the other was in 2008 and indicated that 335 dead people had been declared “alive” – over 500 people have been recognised as living individuals.
Acrimony and greed led members of same family declaring the other person dead so as to acquire the land and unscrupulous work by the lekpal (low-level bureaucrat) in maintaining the record books devoid a living person of Right to Life. This case brought into five major citation, those are, The Protection of Human Rights Act, 1993;The Indian Penal Code; Article 21 in The Constitution Of India 1949;Section 36 in The Protection of Human Rights Act, 1993;Section 14 in The Protection of Human Rights Act, 1993.
The chronology of events in Lal bihari case
Lal Bihari took 18 years to get his identity back.
Phase 1
Lal Bihari approaches his birthplace Khalilabad for residence, income and caste certificates as He needed them to get a bank loan for his handloom business. On his arrival at the tehsildar’s office, he came to know that he has been dead since 30th July, 1976. His relatives had bribed the khatuni (record keeper) to declare him dead on the official papers and transfer one-fifths of the land to them. Shocked and shattered with the news, he started a new phase of life, which was regaining his identity.
Phase 2
Lal Bihari kidnapped his nephew and sent his shirt drenched with animals blood available at butcher’s shop. But he let the child go to his parents when didn’t register any case against him. If nephew’s parents would have registered a case against him then he would had a proof of his identity. After his nephew returned home, an article appeared in a regional newspaper called Swatantra Bharat and after hearing upon the news an MLA raised a question in the UP Assembly.
Phase 3
Lal Bihari got married at a young age, and applied for a widow pension for his wife hoping the government would rectify the mistake upon seeing him alive, but this also went in vain.
Phase 4
At this point Lal Bihari started to give when a politician named Shyam Lal appeared as a Guru to him and advised him to openly call him “Mritak”, as the passerby made fun of his identity and cracked joke on his situation. This idea appealed him so much so that he started the Mritak Sangh, an association of the living dead. But there was one problem: it had no members except him.
Phase 5
As the drama spurred at the Assembly, Lal Bihari sat on dharnas outside the Assemby in Lucknow. And finally got a visitor pass to enter the assembly, and heroically stood up from his place and sang the slogan of “Mujhe zinda karo” while the assembly was in session. He had to be thrown out of the assembly. He even bribed a police officer with 500 Rupees to register a case against him but it went into vain.
Phase 6
Lal Bihari sold his property to contest the 1988 Lok Sabha election from Allahabad against former Prime Minister VP Singh.Surprising even himself, he got about 1,600 votes. In 1989, he filed nomination papers against Rajiv Gandhi in Amethi and then promptly filed an application for countermanding the election, as he was dead. It was not countermanded, of course, but he got written about. In 1994, finally he was declared alive and got his identity back.
Now Mritak Sangh is a popular community, which helps other people like Lal Bihari to earn justice who have been declared dead by the family members in lure of property.
NOBEL PRIZE IN Peace – Presented to Lal Bihari, of Uttar Pradesh, India, for a triple accomplishment: First, for leading an active life even though he has been declared ,Legally dead; Second, to carry out a lively posthumous campaign against bureaucratic inertia and greedy relatives; And third, to form the Association of Dead People. Lal Bihari overcame the barrier of being dead, and managed to obtain a passport from the Government of India so that he could travel to Harvard and accept his award. However, the US government refused to allow them into the country. His friend Madhu Kapoor therefore came to the IG Nobel function and accepted the award on behalf of Lal Bihari. Several weeks later, Lal Bihari was presented the award at a special ceremony in India.
you can learn so many lessons from Lal Bihari's struggle but one thing you should learn that you cannot get everything in your life easily but you can get for sure what you deserves if you are strong enough to fight with odd's in you life
you can learn so many lessons from Lal Bihari's struggle but one thing you should learn that you cannot get everything in your life easily but you can get for sure what you deserves if you are strong enough to fight with odd's in you life
This case was filed in 1951 for fundamental right to get admission into educational
institutions maintained by the State. this case has two stories one relates to Sri
Srinivasan and another to Srimathi Champakam Dorairajan.
The State of Madras maintains four Medical Colleges at that time(in 1951) and
only 330 seats were available for students in those four Colleges. Out of those
330 seats, 17 seats were reserved for students coming from outside the State
and 12 seats were reserved for discretionary allotment by the State and the
balance of the seats available were apportioned between four distinct groups of
districts in the State.
Likewise, the State of Madras maintains four Engineering Colleges at that time(
in 1951) and the total number of seats available for students in those Colleges
were only 395. Out of those, 21 seats were reserved for students coming from
outside the State, 12 seats were reserved for discretionary allotment by the
State and the balance of the seats available were apportioned between the same
four distinct groups of districts.
For many years before the commencement of the Constitution, the seats in both
the Medical Colleges and the Engineering Colleges so apportioned between the
four distinct groups of districts used to be filled up according to certain
proportions set forth in what used to be called the Communal GOVERMENT ORDER.
Thus, for every 14 seats to be filled by the selection committee, candidates
used to be selected strictly on the following basis:
Non-Brahmins (Hindus) ... 6
Backward Hindus ... 2
Brahmins ... 2
Harijans ... 2
Anglo-Indians and Indian Christians ... 1
Muslims ... 1
Subject to the aforesaid regional and what have been claimed to be protective
provisions selection from among the applicants from a particular community from
one of the groups of districts used to be made on certain principles based on
academic qualifications and marks obtained by the candidates
In the case of the Medical Colleges where Srimathi Champakam Dorairajan
had applied for admission, not less than 20 per cent. of the total number
of seats available for students of the State were filled by women candidates
separately for each region, it being open to the selection committee to admit a
larger number of woman candidates in any region if qualified candidates were
available in that region and if they were eligible for selection on merits
vis-a-vis the men candidates in accordance with the general principles
governing such admissions as laid down in those rules. It appears that the
proportion fixed in the old Communal G. O. has been adhered to even after the
commencement of the Constitution on 26-1-1950. Indeed, G. O. No. 2208, dated
l6-6-1950, laying down rules for the selection of candidates for admission into
the Medical Colleges substantially reproduces the communal proportion fixed in
the oldCommunal Government order.
Proceedings At Supreme Court
Sri Srinivasan who had actually applied for admission into the Govt.
Engineering College at Guindy, filed a CASE (petition). praying for a writ of
mandamus or any other writ restraining the State of Madras all officers thereof
from enforcing, observing, maintaining or following the Communal G. O. in and
by which admission into the Engineering College was sought to be regulated in
such manner as to infringe and involve the violation of the fundamental right
of the Sri Srinivasan . under Art. 15 (1)(The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them) and Art. 29 (2) (No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them) of the Constitution,
in the affidavit filed in support of his petition. the Sri Srinivasan. has
stated that he had passed the Intermediate Examination held in March 1950 in
Group 1, passing the said examination in first class and obtaining marks set
out in para. 1 of his affidavit.
It will appear that in the optional which are taken into consideration in
determining the academic test for admission in the Engineering College the Srinivasan secured 369 marks out of a maximum
of 450 marks. The High court has by the same judgment allowed this application
in favour of Sri Srinivasan also and the State of madras filed an appeal which has been numbered 271 of
1951. The learned counsel appearing for the State of Madras conceded that these
two applicants would have been admitted to the educational institutions they
intended to join and they would not have been denied admission if selections
had been made on merits alone.
Art.29 'Cultural and
Educational Rights' runs as follows:
"(1)
Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the
right to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them."
It will be noticed that while Cl. (1) protects the language, script or culture
of a section of the citizens, cl. (2) guarantees the fundamental right of an
individual citizen. The right to get admission into any educational institution
of the kind mentioned in Cl. (2) is a right which an individual citizen has as
a citizen and not as a member of any community or class of citizens. This right
is not to be denied to the citizen on grounds only of religion, race, caste,
language or any of them. If a citizen who seeks admission into any such
educational institution has not the requisite academic qualifications and is
denied admission on that ground, he certainly cannot be heard to complain of an
infraction of his fundamental right under this Article. But, on the other hand,
if he has the academic qualifications but is refused admission only on grounds
of religion, race, caste, language or any of them, then there is a clear breach
of his fundamental right.
The learned Advocate- General appearing for the State of madras contends that
the provisions of this Article have to be read along with other Articles in the
Constitution. He urges that Art. 46 charges the State with promoting with
special care the educational and economic interests of the weaken sections of
the people, and in particular, of the Scheduled Castes and the Scheduled
Tribes, and with protecting them from social injustice and all forms of
exploitation. It is pointed out that although this Article finds a place in
Part IV of the Constitution which lays down certain directive principles of
State policy and though the provisions contained in that Part are not
enforceable by any Ct. the principles therein laid down are nevertheless
fundamental for the governance of the country and Art. 37 makes it obligatory
on the part of the State to apply those principles in making laws.
The argument is that having regard to the provisions of Art. 46, the State is
entitled to maintain the Communal G. O. fixing proportionate seats for
different communities and if because of that Order, which is thus contended to
be valid in law and not in violation of the Constitution, the petnrs. are
unable to get admissions into the educational institutions, there is no
infringement of their fundamental rights. Indeed, the learned Advocate-General
of Madras even contends that the provisions of Art. 46 override the provisions
of Art. 29 (2). We reject the above noted contentions completely. The directive
principles of the State policy, which by Art. 37 are expressly made
unenforceable by a Ct. cannot override the provisions found in Part III which,
notwithstanding other provisions, are expressly made enforceable by appropriate
Writs, Orders or directions under Art. 32.
The chapter of Fundamental Rights is sacrosanct and not liable to be abridged
by any Legislative or Executive act or order, except to the extent provided in
the appropriate Art. in Part III. The directive principles of State policy have
to conform to and run as subsidiary to the Chapter of Fundamental Rights. In
our opinion, that is the correct way in which the provisions found in Parts III
and IV have to be understood. However, so long as there is no infringement of
any Fundamental Right, to the extent conferred by the provisions in Part III,
there can be no objection to the State acting in accordance with the directive
principles set out in Part IV, but subject again to the Legislative and
Executive powers and limitations conferred on the State under different
provisions of the Constitution.
. In the next place it will be noticed that Art. 16 which guarantees the
fundamental right of equality of opportunity in matters of public employment
and provides that no citizen shall, on grounds only of religion, race, caste ,
sex , descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of any employment or office under the State
also includes a specific clauses in the following terms:
"(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments of posts in favour of any
backward class of citizens which, in the opinion of the State , is not
adequately represented in the services under the State."
SUPREME COURT' OF INDIA'S FINDING
If the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would
have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was
inserted in Art. 16, the omission of such an express provision from Art. 29
cannot but be regarded as significant. It may well be that the intention of the
Constitution was not to introduce at all communal considerations in matters of
admission into any educational institution maintained by the State or receiving
aid out of State funds. The protection of backward classes of citizens may
require appointment of members of backward classes in State services and the
reason why power has been given to the State to provide for reservation of such
appointments for backward classes may under those circumstances be understood.
That consideration, however, was not obviously considered necessary in the case
of admission into an educational institution and that may well be the reason
for the omission from Art. 29 of a clause similar to cl. (4) of Art, 16.
Take the case of the petnr. Srinivasan. It is not disputed that he secured a
much larger number of marks than the marks secured by many of the Non-Brahmin
candidates and yet the Non. Brahmin candidates who secured less number of marks
will be admitted into six out of every 14 seats but the petnr. Srinivasan will
not be admitted into any of them. What is the reason for this denial of
admission except that he is a Brahmin and not a Non-Brahmin. He may have
secured higher marks than the Anglo Indian and Indian Christians or Muslim
candidates but, nevertheless, he cannot get any of the seats reserved for the
last mentioned communities for no fault of his except that he is a Brahmin and
not a member of the aforesaid communities. Such denial of admission cannot but
be regarded as made on ground only of his caste.
It is argued that the petnrs. are not denied admission only because they are
Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brahmins
have an allotment of only two seats out of 14 and (c) the two seats have
already been filled up by more meritorious Brahmin candidates. This may be true
so far as these two seats reserved for the Brahmins are concerned but this line
of argument can have no force when we come to consider the seats reserved for
candidates of other communities, for so far as those seats are concerned, the
petnrs. are denied admission into any of them not on any ground other than the
sole ground of their being Brahmins and not being members of the community for
whom those reservations have been made. The classification in the Communil G.
O. proceeds on the basis of religion, race and caste. In our view, the
classification made in the Communal G. O. is opposed to the Constitution and
constitutes a clear violation of the fundamental rights guaranteed to the
citizen under Art. 29 (2) In this view of the matter, we do not find it
necessary to consider the effect of Art. 14 or 15 on the specific Articles
discussed above.
For the reasons stated above, we are of opinion that the Communal Government Order.
being inconsistent with the provisions of Art. 29 (2) in Part III of the
Constitution is void under Art 13. The result, therefore, is that these appeals
filed by state of madras stand dismissed
with costs.
Sri Srinivasan and Srimathi Champakam Dorairajan won the case .
what if they had not challenged the COMMUNAL GOVERNMENT ORDER IN THE court ?
then system would not be changed. Sri Srinivasan and Srimathi Champakam Dorairajan were aware of there rights . their awareness changed the whole system.
SO ALL OF YOU SHOULD AWARE ABOUT YOUR RIGHTS BECAUSE AWARNESS IS THE ONLY THING TO FIGHT AGAINST THE ODD'S OF SOCIETY ,
