Andhra Pradesh High Court - Amravati
Paritala Sunitha vs The State Of Andhra Pradesh on 21 November, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.16540 OF 2019
ORDER:
One Smt.Paritala Sunitha, w/o Paritala Late Ravindra filed this petition under Article 226 of the Constitution of India questioning the action of the respondents in scaling down the security cover to the petitioner from 2+2 to 1+1 which existed prior to 21.09.2019 as illegal, arbitrary, unconstitutional, in violation of principles of natural justice and violation of Article 21 of the Constitution of India, consequently set aside the notice dated 21.09.2019 and direct the respondents to restore the security cover to the petitioner existed prior to 21.09.2019.
The State provided 2+2 security cover to the petitioner considering her family back ground, the same was continued till 21.09.2019. She received a letter from the office of respondent No.5 informing that the security review committee in its meeting held on 12.06.2019 has decided to scale down the security cover provided to her from 2+2 to 1+1. Before scaling down the security, the official respondents i.e. security review committee failed to examine her family background and also about the threat from the rival groups i.e. threat perception and failed to issue notice before taking decision calling for her explanation before reducing security cover. The security cover is essential to the petitioner for the reason that there is any amount of threat from her rival group, and that in the year 1975 petitioner's rival group killed her father-in- law by name Paritala Sriramulu. Thereafter, her husband Late Paritala Ravindra and his brother Paritala Hari faced regular threat to their lives. After 1980, Paritala Hari was also murdered by rival MSM,J WP_16540_2019 2 groups and thereafter her husband faced severe problems and threat from his rival groups. In the year 1993, her husband Paritala Ravindra entered into politics and joined in Telugu Desam Party.
Husband of the petitioner was elected as Member of Legislative Assembly from Penukonda Constituency and discharged duties as cabinet minister of Labour Department in the combined State of Andhra Pradesh in N.T. Rama Rao's government. When her husband became more influential in the politics, the rival groups hatched a plan to eliminate him from the public life. In the said process, his rival groups planned a massive blast to eliminate her husband from the society and blasted a car bomb with remote control on 19.11.1997 at Jubliee Hills near Rama Naidu Studio on the occasion of "Sriramulaiah" film function. In the said incident, 23 persons were killed including media crew and 31 were severely injured, but her husband escaped with injuries and recovered.
In the process of elimination, the rival groups killed many associates of her husband and that on 07.09.2004 their rival groups murdered one Tagarakunta Prabhakar, who was close associate to her husband. After the said incident, her husband came before the media on 13.09.2004 openly stated that his rival groups killed his 16 associates and also made certain allegations against Y.S. Jagan Mohan Reddy, who is the son of the then Chief Minister alleging that he is responsible for the said incidents. After the said allegations, on instigation of the then ruling party leaders, the police entered into the petitioner's house at Venkatapuram Village, Ramagiri Mandal, at Aravind Nagar, Anantapuramu on MSM,J WP_16540_2019 3 26.09.2004 and searched the house without any valid reasons. Due to the said allegations made by her husband, the said Jagan Mohan Reddy, who is the present Chief Minister, filed a defamation case against her husband at Pulivendula Court, Kadapa District. When he started from Anantapuramu to reach Pulivendula to attend court proceedings, he faced many hurdles to reach the said Court.
It is contended that on 09.10.2004 rival groups of the petitioner murdered one Mr. R.K alias Malapati Venkateshwar Rao at Bellari and at that time the news was published disclosing that there is life threat to her husband. When the government changed in the year 2004, reduced security to her husband knowing that he has life threat. In-spite of several requests, the then government did not provide additional security to her husband, which lead to assassination of her husband on 24.01.2005 at Anantapuramu in the hands of his rival group.
It is specifically contended that the then Chief Minister ordered for investigation by Central Bureau of Investigation into the murder and after investigation, the Central Bureau of Investigation filed charge sheet, and 133 witnesses were examined in the trial. After full-fledged trial, the trial Court vide its judgment dated 25.08.2011 convicted 8 persons and sentenced them to life imprisonment. After the death of husband of the petitioner, she was elected as Member of Legislative Assembly from Penukonda Constituency and the government provided 2+2 security cover to her. After bifurcation of constituencies, she continued to elect as Member of Legislative Assembly from Raptadu Constituency. In the General Elections held in the year 2014, she was elected from MSM,J WP_16540_2019 4 Raptadu Constituency and discharged her duties as Cabinet Minister for Civil Supplies Department and also Women and Child Welfare. However, in the last elections, the petitioner did not contest and her son Paritala Sriram contested in Raptadu Assembly Constituency and he lost the elections. Thus, there is threat perception from the inception; considering her family background, the State provided 2+2 security to her and the same was continued. But, without taking into consideration her family background and past incidents, the official respondents have scaled down the security cover from 2+2 to 1+1. In the said process, the respondent No.5 issued a letter dated 21.09.2019 informing that they have decided to scale down her security cover from 2+2 to 1+1 in view of the decision of respondent No.4 on 12.06.2019. The respondents without considering the family background of the petitioner, several deaths that took place in her family, so also murder of associates of her husband by rival group, threat to the life of the petitioner, reduced the security cover and in case security cover is reduced, there is any amount of danger to her life and the decision taken by the respondent No.4 on 12.06.2019 is violative of Article 21 of the Constitution of India, thereby requested to declare the notice dated 21.09.2019 as illegal, arbitrary as the same was issued without hearing the petitioner and it is violative of principles of natural justice, and direct the respondents to restore 2+2 security cover to the petitioner as existed prior to 21.09.2019.
Respondent No.4 filed detailed counter alleging that the averments made in the affidavit filed along with the petition are vague and the petitioner did not approach the Court with any MSM,J WP_16540_2019 5 material in support of her claim. Mere continuation in public life for a longer period does not entitle the petitioner to have continuous security. Moreover, the alleged threat perception was only against her husband's political life and thereby, there was no threat to the life of the petitioner. She was elected as MLA during the year 2005, and she was provided with "position based security" of 2+2 PSOs as she was a constitutional functionary and the same has been continued. In 2014 she was elected as MLA and was inducted in the State Cabinet, worked as Minister for Women and Child Welfare and was provided with "position based security" scale of "Y+ with Escort" and the same scale of security was continued during her tenure as Minister in the State Cabinet. Further, she did not contest in the last General Elections, thereby her position based security of Y+ scale has been scaled down to 2+2 PSOs only in the State Level Security Review Committee held on 14.06.2019. Hence, from the year 2005 the security cover being provided to her is based on G.O. 655 dated 13.03.1997. As MLA and Minister she was being provided security cover as per the said G.O. Respondent No.4 further contended that the 'Yellow Book"
clearly stipulates that "the positional security may be withdrawn after 30 days of demitting office". Yellow book issued by Ministry of Home Affairs is a highly confidential document provides guidelines and rules for security categorization in respect of all VVIPs/VIPs including MLAs, MPs, etc. In the present circumstances, even though the petitioner did not contest in the elections in 2019, she was provided with 2+2 PSOs basing on threat perception at that point of time. However, basing on the present threat assessment MSM,J WP_16540_2019 6 and in the absence of any fresh inputs, her security has been scaled down from 2+2 PSOs to 1+1 PSOs on 21.09.2019 under proper intimation to the petitioner.
Respondent No.4 specifically contended that the threat of a person changes constantly depending upon the impending circumstances. The quantum of security provided shall usually be commensurate with the magnitude of existent threat perception.
As the security and threat perception are essentially co-existent, security is reduced basing on lack of threat perception. This Court in the case of "Katasani Rami Reddy v. Government of Andhra Pradesh1" held that "threat to one's life may be temporary and in such a case continuous security may not be needed. Therefore, whenever personal security is provided to a person, it must be constantly reviewed by the concerned Superintendent of Police and when on the basis of information available with him he genuinely feels that the threat has vanished, he may recall the security".
Thus, in view of the principle laid down in the above judgment, threat perception changes from time to time and taking into consideration of threat perception as on the date of passing order, the decision was taken. The respondent No.5 in his report, submitted to the State Level Security Review Committee, at present there is "no faction in Raptadu and the movements of radicals/Maoists are completely evaporated". Therefore, the SDPO, Dharmavaram and Inspector of Police, Itikalpalli circle have been clearly instructed to provide necessary bandobast when the Petitioner visits Raptadu.
1 1998 Crl.L.J.3897 MSM,J WP_16540_2019 7 The specific contention of the respondent No.4 is that the claim of the petitioner that there is possible threat to her life from several faction leaders belonging to opposite political parties, is not supported by any past attempts to attack on her life and limb by her political rivals. The respondent No.5 also took the same view and submitted threat perception report to the Committee.
The prescribed Rules/Guidelines for X, Y, Y+, Z and Z+ category and other protectees, specifically stipulates that "existence of threat to an individual from his/her professional rivals should not be considered the basis for provision of categorized security". Threat is a dynamic phenomenon. It changes its dimension and form from time-to-time and from place-to-place. This change can be individual specific, situation specific and place specific. The degree of threat may vary from individual to individual and from situation to situation, such as individual's nature of activities, importance in the scheme of decision making and strategic role played in the existing environment. The tendency to continue with the security arrangements even in the absence of any actual threat for extraneous considerations should be avoided. Therefore, the claim of the petitioner is not based on any material, more particularly as to the serious threat perception. Moreover, reduction of security cover to the petitioner is based on the G.O. referred above, thereby this Court cannot interfere with the notice dated 21.09.2019 and pass any order in her favour.
Sri Goalla Seshadri, learned counsel for the petitioner, contended that in view of the threats faced by the petitioner, which lead to assassination of her husband, father of her husband and several other persons, who are strong supporters of the petitioner's MSM,J WP_16540_2019 8 family more than 30 in number. The Court can infer threat perception to extend security cover of 2+2 to the petitioner and if such security cover is not provided to the petitioner, there is possibility of meeting same consequences, which her husband and others met earlier in the hands of the rival group. The request of the petitioner to continue the same security cover is only to protect her life and liberty guaranteed under Article 21 of the Constitution of India. Apart from that the allegation made in the counter, more particularly at the end of paragraph No.6, is suffice to infer that the petitioner is facing severe threat and keeping in view of threat, the SDPO, Dharmaavaram and Inspector of Police, Itikalpalli circle were instructed to provide necessary bandobast when the petitioner visits Raptadu. Therefore, this admission is suffice to draw inference that the petitioner is facing severe threat from the opponents. The State is under obligation to protect life and liberty of citizen of India in terms of Article 21 of Constitution of India. Since the respondents failed to provide required security cover of 2+2 to protect the life and liberty of the petitioner being Citizen of India, the Court can exercise power under Article 226 of Constitution of India and direct the respondent No.3 to provide necessary security cover i.e. 2+2 by issuing Writ of Mandamus and requested to issue such direction as prayed for.
Learned Special Government Pleader for State drawn the attention of this Court to clauses (1) and (7) of General Guidelines for providing security specified in G.O.Rt.No.655 Home (SC.B) Department dated 13.03.1997, the procedure to be followed for providing security cover and contended that the decision was taken to reduce the security cover only on account of vanishing MSM,J WP_16540_2019 9 threat perception based on the report of the concerned officials not otherwise. He also placed reliance on two judgments of this Court in "Venkata Satyanarayana v. Government of A.P.2" and "Katasani Rami Reddy v. Government of Andhra Pradesh"
(referred supra). On the basis of the principles laid down in the said judgments, Special Government Pleader contended that threat perception changes from time to time and the security cover provided to the petitioner earlier 2+2 is only on account of her position as MLA and Minister; and when she did not contest in the recent election, now she is an Ex-MLA and Ex-Minister, the question of increasing threat perception would not arise, normally.
Therefore, taking into consideration of present threat perception report submitted by the Superintendent of Police, the security cover is reduced from 2+2 to 1+1 on account of changed circumstances and requested to dismiss the petition.
Considering rival contentions and perusing the material available on record, the point that arises for consideration in this writ petition is as follows:
"Whether the petitioner is facing severe threat requiring security cover 2+2? If not, whether reducing security cover from 2+2 to 1+1 vide notice in C.No.16/R1- DSW/DAR/ATP/2019 dated 21.09.2019 is violation of any statutory provision or fundamental right guaranteed under Article 21 of the Constitution of India? If so, whether the respondents be directed to provide security cover of 2+2 based on the present circumstances?"
P O I N T:
The facts narrated above are not in dispute except to the extent of decrease of threat perception on account of changed 2 AIR 1998 AP 184 MSM,J WP_16540_2019 10 circumstances and the same is reported by the Superintendent of Police, Anantapuramu District to the State Level Security Review Committee constituted under clause (e) of G.O.Rt.No.655 (referred supra). The State level security review committee comprising of Joint Director S.I.B., Deputy Director, S.I.B., D.I.G. (Security), D.I.G. (Intelligence), Joint Secretary (Protocol) and I.G.P. (Grey Hounds) as members and I.G.P. (intelligence) as Nodal Authority/ Governor will meet twice a year in order to perform the function of providing security based on assessment of threat perception and also to consider fresh applications in accordance with the guidelines contained in G.O.Rt.No.655 (referred supra). The said guidelines are silent as to the time gap between two sittings specified in clause (e) of the G.O. In the absence of any specific time gap between two sittings specified in clause (e) of the G.O.Rt.No.655 (referred supra)., there is every possibility of exercising the power by committee depending upon the circumstances either to provide security to the concerned or to deny the security to the persons, at the instance of political hierarchy or due to their patronage with politicians. Therefore, clause (e), which deals with constitution of State Level Security Review Committee without fixing duration between two sittings, appears to give unbridled power to such committee to hold sittings twice in a year whenever they like, such confirmation of unbridled power on them may lead to serious consequences. Therefore, specific duration is to be fixed between first sitting and the other sitting in a year.
The facts narrated in the writ petition show that there was lot threat perception to the petitioner as the family of the petitioner MSM,J WP_16540_2019 11 faced severe threat during the lifetime of her husband. Bomb blast at Jubilee Hills, aimed to assassinate the husband of the petitioner is a fine example to infer serious threat perception faced by the family of the petitioner and subsequent event of murder of her husband and his associates in a series of incidents would indicate nature of threat faced by the family of the petitioner and the petitioner. Apart from that, murder of more than 30 persons, who were the associates and supporters of petitioner and her family is suffice to draw an inference as to the threat perception faced by the family of the petitioner as a whole. Though, the respondents contended that the threat perception report was called for from the Superintendent of Police for review of the security cover being provided to various persons, the said report is not placed on record before this Court along with the counter to verify the exact report submitted by the concerned Superintendent of Police to the authority.
Though the background of the petitioner and various incidents narrated in the petition like assassination of Tagarakunta Prabhakar and Paritala Hari and followers of Particala Ravindra indicate serious threats faced by the family of the petitioner, but whether they were considered or not by the officer, who submitted report, is not known. But this Court has no independent mechanism or expertise to find out as to whether there is any threat perception to the life of the petitioner. The petitioner did not specify from whom there is such threat to her life, liberty and property, but made specific allegations against the present Chief Minister of Andhra Pradesh and the members of the opponent political party. Political party is not an identifiable body, MSM,J WP_16540_2019 12 but it consists of number of persons. Therefore, it is difficult for her specify name of any individual or few persons in a group, on the basis of such non-disclosure of name of any individual, it is difficult to accept the contention of respondent No.4.
Providing security cover to the individual citizen is nothing but a burden to the State and the State cannot be burdened with the liability of providing armed escort/gun-man to such of those persons who indulge in factions and group rivalry, unless it is clearly established that there is direct threat perception to their life from known and identified persons or group of persons. Even then it would not be possible for the State machinery to provide adequate security to each and every individual who on their own conduct gets involved or implicated in criminal cases. It is true that the State is duty bound to protect the threatened group from such assaults. Failure to give adequate protection may well amount to failure to perform its constitutional as well as statutory obligations. It is true that the State must act impartially and carry out its legal obligations to safeguard the life, health and well-being of the people residing in the State without being inhibited by local politics. (vide "N.H.R.C. v. State of Arunachal Pradesh3").
The Division Bench of High Court of Andhra Pradesh at Hyderabad in "G.Subas Reddy v. State of Andhra Pradesh4", on reference by the Single Judge as to exercise of judicial review under Article 226 of the Constitution of India to compel the authorities to provide security to all the persons who are either leading factions or actively participating in the factions, laid down 3 [1996]1SCR278 4 1997 (1) ALD (Crl.) 19 MSM,J WP_16540_2019 13 certain principles for the guidance of the authorities concerned in the matter of providing security to the persons concerned. One of the principles laid down is under item No.(5), which will be applicable to the present case. Principle (5) reads as under:
"(5) Individual or individuals, who apprehend threat to peace and to his or their lives can approach the competent authority at the first instance at the district level and make application for deployment of special force for maintaining peace and for protection of his or their lives and liberty. On such application being made, the competent authority shall be duty bound to promptly make suitable orders without any delay.
In case the application is rejected by the district authority, the applicant shall have the right to make application before the superior authority in the hierarchy as indicated above, the last being before the Government of the State. The applicant/ applicants for such security or deployment of Special Police force shall, however, be responsible for the cost as envisaged under the Acts aforementioned and the Government shall have no authority at all to make any expense upon such special force from and out of the revenue of the State."
In "Katasani Rami Reddy v. Government of Andhra Pradesh" (referred supra) the learned Single Judge, taking note of the principles laid down by the Division Bench in "G.Subas Reddy v. State of Andhra Pradesh" (referred supra), held as follows:
"While following the principles laid down by the Division Bench, I will add further that, the questions whether security is to be provided to the individual or not by the State is dependent upon the threat perception with regard to that individual, and what is the amount of threat and whether the threat is real or imaginary, and in case there is threat, what is the degree of the threat to an individual's life, cannot be considered either by this Court or by any other agency other than the police force itself. Police is the competent authority and it is equipped with facilities like intelligence services to come to a conclusion about threat perception of an individual. Therefore, whenever an application is made before a District Superintendent of Police by an individual for providing personal security to him, while disposing of such an application the District Superintendent of Police should invariably record his finding with regard to the threat perception. Once such a finding is recorded, it will be open for such an individual to agitate the matter further, if the concerned Superintendent of Police does not come to correct finding with regard to threat perception.
MSM,J WP_16540_2019 14 This will also enable the District Superintendent of Police to decide as to how much personal security is needed by an individual. Otherwise, unless he knows the level of the threat he cannot be able to decide the matter. It is also well known that, some times threat to one's life can remain life long depending upon the circumstances and the incidents which are relatable with respect to such an individual, but some times threat to one's life may be temporary and in such a case continuous security may not be needed. Therefore, whenever personal security is provided to a person it must be constantly reviewed by the concerned Superintendent of Police and when on the basis of information available with him he genuinely feels that the threat has vanished, he may recall the security."
Even in "Venkata Satyanarayana v. Government of A.P." (referred supra) and in "R.Venkateswara Rao v. State of A.P.5", this Court took similar view.
In "P.R.Muralidharan and Ors. v. Swami Dharmananda Theertha Padar6" the Apex Court held as follows:
"It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact."
The facts of cases filed for providing security cover vary from person to person. No straight jacket formula is fixed for providing security cover. However, it is the duty of the authority to enquire into threat perception of individual taking into consideration of the family background and involvement in any cases and the threats faced by the individuals and consequences of such threats during past, getting themselves involved in any incident due to faction or otherwise, and find out whether the threat is real or imaginary and 5 1999 (4) ALD 432 6 2006 (4) SCC 501 MSM,J WP_16540_2019 15 if the threat is imaginary, the authorities are not under obligation to provide security cover to the individual. Even in the G.O.Rt.No.655 (referred above), the State enumerated the circumstances for providing security cover known as "General Guidelines for providing security", are as follows:
"1. While it is the duty of the State to protect every citizen, specific security cover to any individual can be provided on his threat perception.
2. A private person may be provided individual security on threat perception only on advance payment basis subject to availability of man- power with the unit officer concerned.
3. Constitutional Functionaries and Statutory Functionaries have to be provided security at State's cost, based on threat perception.
4. The security to categorized persons such as those who are in X, Y and Z category should be provided security at State's cost.
5. If protection is sought by political leaders during election period, theymay be given security at State's cost during the election period only.
6. A person having criminal background should not be given security except when the criminal case is closed or acquitted against him. Further, in case there is a genuine threat from naxalites of PWG or in case he is holding public office, then specific permission from I.G.P. Intelligence, who is the Nodal Authority, Should be taken before providing him.
7.In respect of factional groups, security should not be given to the affected parties since provision of security to one faction and ignoring requests of other faction is not proper and wherever it is felt necessary to give security to such person, the reasons for doing so shall be recorded by the competent authority.
8. Any person who has become a target of extremist by virtue of helping the State by giving some information etc., and there by invited the wrath of the extremists can be provided personal security officers at State's cost as it is a social obligation of the State. Such provision of security should be reviewed once in every 6 months I the Security Review Committee by the Nodal Authority.
9. Leaders of Political parties who do not occupy any "Public" office recognized by law are not entitled for protection at the cost of the State.
10. Senior officers of the State depending on threat perception can be provided protection at State's Cost by the State level Security Review Committee / Competent authority.
MSM,J WP_16540_2019 16
11. The security given by the unit officer or by the Nodal Authority will be up to a maximum period of 3 months. Fresh threat perception report should be called for every 3 months and action taken as per the report. A copy of the Threat Perception Report should be sent by the Unit Officers to Inspr. Genl. of Police (Intelligence).
12. In exceptional cases, a temporary security cover to those who do not fall under any of the above categories can be provided by the Nodal Authority for a maximum period of 1 month. After this period, regular threat perception report should be called for and action taken as per the procedure and after obtaining orders of Government.
13. The personal security officers given to the subjects should be rotated one in 3 months in order to ensure proper fitness and training in weapons and tactics."
Learned Special Government Pleader mainly contended that as per guideline No.1 though it is the duty of the State to protect every citizen, specific security cover to any individual can be provided on his/her threat perception. Similarly, in respect of faction groups, security should not be given to the affected parties since provision of security to one faction and ignoring requests of other faction is not proper and wherever it is felt necessary to give security to such person, the reasons for doing so shall be recorded by the competent authority (vide guideline No.7 referred supra) In the facts of the present case, the contention of the State is that the family of the petitioner is involved in faction and faction is between two (2) groups in the village and surrounding area. But there is absolutely nothing to substantiate this contention that the petitioner or their family members, who are alive or died, are the factionists. Mere branding a person as a factionist is not sufficient, there must be sufficient material to describe such individual as factionist, to deny the security cover, taking advantage of guideline No.7 of the guidelines referred supra. No doubt, series of incidents narrated in the petition would disclose that there are two rival MSM,J WP_16540_2019 17 groups in the area where the petitioner is residing and the petitioner's family suffered unnatural deaths due to murderous assault during past and they were eliminated by rival group. Even according to the allegations made in the affidavit filed along with the petition in various paragraphs, more particularly paragraph Nos.6 and 9, rival groups assassinated Tagarakunta Prabhakar and her husband Paritala Hari etc. This allegation itself is sufficient to show that there are two rival groups, one was lead by husband of the petitioner or her family members earlier. More particularly, after the death of her husband, no incident was reported on account of rivalry between two groups. Tagarakunta Prabhakar died on 07.09.2004 i.e. about 15 years ago and the husband of the petitioner met with unnatural death in the month of January, 2005 Thereafter, no incident of such murderous assault on account of group rivalry is reported, may be due to affiliation of petitioner with the politics and her election as a member of Legislative Assembly and discharging duties as Minister for some time.
When no incident was reported either on account of rivalry between two groups or factionism, decreasing security cover to the petitioner from 2+2 to 1+1 is justifiable reason and it is based on threat perception report submitted to the State Level Security Review Committee.
One of the contentions of the petitioner is that when she was M.L.A. and Cabinet Minister of Civil Supplies Department and also Women and Child Welfare, till general election 2019, security cover consisting of 2+2 and Y+ security was provided because she happened to be a Minister or M.L.A. Such security cover is based MSM,J WP_16540_2019 18 on her position as Cabinet Minister of Civil Supplies Department and also Women and Child Welfare. Even Yellow book clearly stipulates that "the positional security may be withdrawn after 30 days of demitting office."
Yellow Book deals with Security and other facilities to be provided to VVIPs/VIPs including MLAs and MPs. As on date, the petitioner is not a VVIP or VIP, neither she is MLA nor M.P. to claim security cover as provided in Yellow Book, but she is an ordinary citizen like any other citizen of India. When security cover of 2+2 is provided during her tenure as MLA or Y+ security as Minister, based on her position, when she was demitted office as MLA or Minister, the security shall be withdrawn in terms of guidelines issued in Yellow Book. But taking into consideration of earlier incidents, more particularly, death of her husband and his associates in the hands of rival group, the respondent provided security cover of 1+1.
Learned counsel for the petitioner drawn the attention of this Court to the last few lines of paragraph No.6 to contend that the respondents themselves admitted that the SDPO, Dharmavaram and Inspector of Police, Itikalpalli circle were instructed to provide necessary bandobast when the petitioner visits Raptadu. This allegation does not amount to judicial admission and bandobast is different from providing security cover to the petitioner on account of threat perception. Bandobast is only to avoid untoward incident on account of visit of such person or individual because of his/her family background. Even assuming that inference can be drawn from the allegation made in paragraph No.6 of the counter, still the respondents are providing 1+1 security cover to the petitioner only MSM,J WP_16540_2019 19 taking into consideration of past incident before 2005. What amount of security cover is to be provided is depending upon the decision taken by State Level Security Review Committee. Therefore, position based security cover was withdrawn on her demitting office as MLA and Cabinet Minister of Civil Supplies Department and also Women and Child Welfare, consequently, the respondents cannot be compelled to provide same security even after she lost her position as MLA or Cabinet Minister.
Providing security cover is only to protect the life of individual and the same cannot be utilised as a tool to exert threat on other rival groups and it is not a label of burocracy. Therefore, the Court cannot assess the threat perception of individual and cannot draw such inference from the undisputed facts narrated by the parties in the petition and counter. Even assuming that there is a threat to the life and liberty of the petitioner, providing 1+1 security cover is sufficient to protect the individual from such threats and the petitioner cannot claim security cover, which is being provided to VVIPs and VIPs in terms of Yellow Book even after demitting office as MLA and Cabinet Minister. Therefore, taking into consideration of the circumstances, providing security cover of 1 + 1 to the petitioner by the State is based on the decision taken by the State Level Security Review Committee constituted under clause (e) of G.O.Rt.No.655 (referred above). This Court while exercising power under Article 226 of the Constitution of India cannot sit over an appeal against the decision taken by the State Level Security Review Committee and compel them to provide necessary security cover to the petitioner. When the Committee based on the threat perception report, assessed the threat MSM,J WP_16540_2019 20 perception and took decision, in the absence of any material to establish that there is a serious threat to the life of the petitioner, it is difficult to issue a direction to the respondents to provide security cover of 2+2, as existed prior to 21.09.2019 as the petitioner is neither MLA nor Cabinet Minister to compel the State to provide such security cover.
The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only certain circumstances which are enumerated in "West Bengal Central School Service Commission v. Abdul Halim7" wherein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.
In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an 7 2019 (9) SCALE 573 MSM,J WP_16540_2019 21 error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
The petitioner also claimed consequential relief of Writ of Mandamus, but such relief cannot be granted as a matter of course as held in "State of Kerala v. A.Lakshmi Kutty8", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by 8 1986 (4) SCC 632 MSM,J WP_16540_2019 22 public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.9", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner to claim writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.10"
the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."9
1995 All.L.J. 534 10 (1996) 9 SCC 309 MSM,J WP_16540_2019 23 In "Union of India v. S.B. Vohra11" the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain12" the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on 11 (2004) 2 SCC 150 12 (2008) 2 SCC 280 MSM,J WP_16540_2019 24 the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) Condition for the issue of Writ of Mandamus: For the issue of this writ the following conditions are required to be fulfilled.
(1) Public duty -- The person or authority against whom this writ is sought to be issued must have public duties to perform and there must have been failure on his part in performance of his duties. The duty will be public duty if it is created by a Statute or rule of common law. Thus, the duty imposed by the Constitution, Statute, MSM,J WP_16540_2019 25 common law or rules or orders having the force of law is regarded public duty.- It cannot be issued to enforce the private duties. Thus it cannot be issued for the enforcement of the obligations arising out of a contract." For the issue of this writ it is necessary that the authority against whom it is issued must be a public authority. It may be issued even against a private body if the duty cast upon it is of a public nature. However, it cannot be issued against a private person or private body which does not perform public duty but performs only private duties.
(2) Duty to be mandatory -- The authority or the person against whom the writ is sought to be issued must have some public duties to perform, the performance of the duties by him must be imperative or mandatory and not discretionary and there must be failure on his part in the performance of the duties. If the authority or person is bound to perform the duty, the duly will be taken as a mandatory duty. If the duty is merely discretionary, the writ of mandamus cannot be issued to enforce it. For example, if by a rule the Government is given a discretion to grant Dearness Allowance to its employees, the writ of mandamus cannot be issued to compel the Government to grant the Dearness Allowance. If the discretion is exercised bona fide and not arbitrarily, the mandamus is not issued. But if the discretion is exercised arbitrarily or maliciously or without applying the mind or on the irrelevant consideration, the mandamus will lie. If the authority is under duty to exercise its discretion but he does not exercise discretion, the Court may issue mandamus asking the authority to act according to law and exercise its discretion. In a case the Supreme Court has held that even if the duty is discretionary a limited mandamus can be issued directing the public authority to exercise the discretion with a reasonable time in accordance with law. The writ of mandamus cannot be issued to provide for reservation.
(3) Petitioner's legal right to compel the performance of the duty -- The petitioner should have legal right to compel the authority or the person against whom he seeks the issue of the writ of mandamus to perform his public duty. The petitioner, thus, should have legal right to compel the performance of the public duty cast on the opponent. Thus he must have legal right to compel the authority concerned to perform his public duty or to refrain from doing something (4) Demand of the performance and its refusal -- For the issue of the mandamus it is necessary that the petitioner has called upon the authority concerned to perform its public duty and the authority concerned has refused to do so.
MSM,J WP_16540_2019 26 Thereafter, he submitted that in order to characterize a decision of the administrator as "irrational" the court has to hold, on material, that it is a decision "so outrageous" as to be in total defiance of logic or moral standards. He further stated that the test is to see whether there is any infirmity in the decision making process and not in the decision itself.
In view of the law laid down by various Courts referred supra, one must show existing right or failure of public officer to discharge public duty, or the decision of public authority is irrational/outrageous. The petitioner's security cover is reduced, not totally taken away, based on threat perception report placed before the State Level Security Review Committee, and since the date of death of petitioner's husband in the year 2005, no untoward incident occurred. As such the decision of the State cannot be said to be irrational or outrageous and the act of the State do not violates fundamental right guaranteed under Article 21 of the Constitution of India. Hence, I am of the view that in the circumstances narrated above, following the law, no direction to increase security cover or restore the security cover as existed as on the date of general election, be given.
On an overall consideration of the facts and circumstances of the case, security cover of 1+1 based on decision taken by the State Level Security Review Committee cannot be altered by this Court while exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
In view of my foregoing discussion, I find no merit in the contention of the learned counsel for the petitioner to issue a Writ MSM,J WP_16540_2019 27 of Mandamus as prayed for and the writ petition is devoid of any merit. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs. The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 21.11.2019 Ksp