No mala fide action in eviction, says court

J. Venkatesan

The Supreme Court, though strongly deprecating the midnight eviction of yoga guru Baba Ramdev and his followers, rejected the charge that there was mala fide action on the part of the Delhi police and the Union Home Ministry in passing the ban order on the night of June 4, 2011.

Justice Swatanter Kumar who wrote the main judgment said: “From the material placed before the Court, I am unable to hold that the order passed by the competent authority and execution thereof is mala fide in law or in fact or is an abdication of power and functions by the police. The action, of course, partially suffers from the vice of arbitrariness but every action necessarily need not be mala fide .”

Mr. Justice Kumar said: “Upon taking into consideration the cumulative effect of the affidavits filed on record and other documentary evidence, I am unable to dispel the argument that the decision of the Ministry of Home Affairs, Union of India reflected its shadow on the decision-making process and decision of the police authorities. I also find that there would be no illegality if the police authorities had acted in consultation with the Union Ministry as it is the collective responsibility of various departments of the State to ensure maintenance of law and order and public safety in the State.”

Building confidence

The Bench said: “The present case is a glaring example of trust deficit between the people governing and the people to be governed. Greater confidence needs to be built between the authorities in power and the public at large.”

Mr. Justice Kumar said: “While considering the ‘threat perception' as a ground for revoking such permissions or passing an order under Section 144 Criminal Procedure Code, ‘care perception' has to be treated as an integral part thereof. ‘Care perception' is an obligation of the State while performing its constitutional duty and maintaining social order.”

Pointing out that police personnel had used indiscriminate force, lathi charge and tear gas shells and thrown bricks on the followers, the Bench directed the department to register cases against them as also against those followers of Baba Ramdev who caused destruction to public properties and file charge-sheets in three months.

In his separate but concurring judgment, Mr. Justice Chauhan gave additional reasoning and said: “Proceedings under Section 144 of the Cr. P.C. , even if resorted to on sufficient grounds, the order could not be implemented in such unruly manner. Such a power is invoked to prevent the breach of peace and not to breach the peace itself.”

He said: “Baba Ramdev along with his large number of followers and supporters performed a Shanti Paath at about 10 p.m. on 4th June, 2011, whereafter, all those who had assembled and stayed back, went to sleep under tents and canopies to again get up in the morning the next day at about 4 a.m. to attend the schedule of Ashtang Yoga training to be conducted by Baba Ramdev. Just after midnight, at about 12.30 a.m. on the 5th of June, 2011, a huge contingent of about more than a thousand policemen surrounded the encampments while everybody was fast asleep inside. There was a sizeable crowd of about 20,000 persons who were sleeping. They were forcibly woken up by the police, assaulted physically and were virtually thrown out of their tents. This was done in the purported exercise of the police powers conferred under Section 144 Cr. P.C. on the strength of a prohibitory order dated June 4, 2011 passed by the Assistant Commissioner of Police. The manner in which the said order came to be implemented, raised a deep concern about the tyrannical approach of the administration and this court took cognisance of the incident calling upon the Delhi Police administration to answer this cause. The incident had ushered in a huge uproar and an enormous tirade of criticism, bringing to our notice the said unwarranted police action, that too, even without following the procedure prescribed in law.”

Mr. Justice Chauhan said: “The question is as to whether such an order stands protected under the restriction clause of Article 19 of the Constitution or does it violate the rights of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours. The incident also raises serious questions about the credibility of the Police Act, the procedure followed for implementation of a prohibitory order and the justification thereof in the given circumstances. The fact remains that implementation of prohibitory orders was taken when the crowd was asleep. The said assembly per se , at that moment, did not prima facie reflect any apprehension of eminent threat or neither danger to public peace and tranquillity nor any active demonstration was being performed at that dead hour of night.”

Sleep, a basic right

Holding that right to sleep was a fundamental right, Mr. Justice Chauhan said: “Sleep is fundamental and a basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third-degree method which at times is sought to be justified as a necessary police action to extract the truth out of an accused involved in heinous and cold-blooded crimes. It is also a device adopted during warfare where prisoners of war and those involved in espionage are subjected to treatments depriving them of normal sleep.”