Andhra Pradesh High Court - Amravati
Nara Chandrababu Naidu vs The State Of Andhra Pradesh, on 14 August, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
WRIT PETITION No.8280 OF 2019
ORDER:
1. The petitioner, who is the Ex-Chief Minister and present Member of Legislative Assembly-cum-Leader of opposition, Telugu Desam Party, filed the instant writ petition seeking a writ of mandamus declaring the action of respondents in scaling down his existing security cover w.e.f. 25.06.2019 as illegal, arbitrary, unconstitutional and violative of principles of natural justice, besides being politically motivated, and for a consequential direction to restore his security cover existing prior to 25.06.2019.
2. The petition averments succinctly are thus:
(a) The petitioner, who has been in active politics and in public life since 1978, has served as Chief Minister of undivided State of Andhra Pradesh for nine years in two spells and as first Chief Minister of the residuary State of Andhra Pradesh from 2014 to 2019 and he has been the Leader of opposition for two terms and now also.
(b) As a Chief Minister, the petitioner has taken several decisions for maintenance of law and order and curbing extremist activities and thereby exposing himself to the life threat. He was in the hit-list of Maoists who sought to annihilate him through a CLAY MORE-MINE blast on 01.10.2003 and he had a providential escape 2 UDPR,J W.P. No.8280 of 2019 with bleeding injuries. The said incident was occurred while he was the sitting Chief Minister of the combined State of Andhra Pradesh.
Ever since, he and his family members were in the hit-list of the Left Wing Extremists. Further, after AOB (Andhra Orissa Border) encounter in October, 2016, 'The Hindu' newspaper carried an article "Maoists threatened to target Naidu, Lokesh" on 27.10.2016. In view of all these incidents, the petitioner was provided with Z+ category security cover.
(c) The decisions taken by the Government headed by the petitioner during 2014-19 with regard to law and order issues and the occurrence of AOB encounter in October, 2016 made the petitioner final target of Left Wing Extremists. Added to it, on 23.09.2018, the Maoists gunned down the sitting TDP MLA from Araku, Sri Kidari Sarvaswara Rao and a former legislator, Sri Siveri Soma at Dumbriguda Mandal of Araku Valley of Visakhapatnam District which only goes to show that they are active in carrying out their threats. Apart from it, certain firm decisions of the Government during the same period to root out Red-Sander smuggling made the petitioner vulnerable to Red Sander Mafia which is an international menace. Above all, the petitioner's stint as Chief Minister has also resulted in several political rivals trying to harm him.
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(d) While so, despite the petitioner being a Z+ category protectee, the Government has scaled down the security and given him 2+2 security cover while withdrawing security to his family. As a Leader of the opposition party, the petitioner is required to move more frequently and at times under short notice. The petitioner also served as Leader of opposition in between 2009-2014, during which time he was being provided with much more security cover which has been reduced now. The State has to provide security cover which shall commensurate with the National Security Guards (NSG) cover provided by the Centre keeping in mind the past attempts on petitioner's life. The respondents have taken the impugned action all of a sudden though there was no change of circumstances except change in the ruling party. The impugned action crippled the petitioner from moving around in connection with his activities. The impugned action does not subscribe to the guidelines prescribed by the Division Bench of this Court in G.Subas Reddy v. State of A.P.1. The action impugned was taken without hearing the petitioner and hence, hit by the violation of principles of natural justice.
Hence, the Writ Petition.
3. The first respondent filed counter inter alia contending thus: 1
1996 (4) ALT 985 (DB) 4 UDPR,J W.P. No.8280 of 2019 It is true that the petitioner is a Z+ category protectee. He is still being provided with security cover well in excess of the requirement prescribed for the said category of protectees and therefore, it is not true to state that the life and limb of the petitioner are at risk because of the reduced security cover and that the petitioner is only given a 2+2 protection. In fact, the petitioner is being given security cover by a total of 97 personnel in Amaravati and 30 personnel more at petitioner's house in Jubilee Hills whenever he visits and stays at Hyderabad. It is not true to state that the present security cover is much lesser than the one provided to him while he was Leader of opposition from 2009 to 2014. During the said period, the petitioner was provided with 145 security personnel at one place i.e., his house at Jubilee Hills. Whereas, now the petitioner is provided with 97 security personnel at Amaravati and additional 30 security personnel at Hyderabad, whenever he visits and stays. Further, the security cover to the family of petitioner is being provided as per the threat perception and the stipulations of the Yellow Book. There are various factors and reasons for changing the security cover and the reasons for the difference in the security cover now and then are as below:
(i) Personal security of petitioner used to be taken care by Close Proximate Teams (CPTs) headed by Inspector in addition to 5 UDPR,J W.P. No.8280 of 2019 NSG team. Earlier, NSG used to provide mobile security cover to the protectee, which in effect was the second circle of protection around the petitioner. However, as per the revised protocol, the NSG are not taking care of proximate security of the protectee. Therefore, the NSG are now the CPTs around the petitioner. In that view, the CPTs of A.P. Police have become redundant. However, in accordance with the provisions of the Yellow Book, two PSOs round the clock are provided in three shifts.
(ii) Earlier, when the petitioner was the Chief Minister for State of Andhra Pradesh, the security arrangements used to be supervised by two Chief Security Officers of Additional Superintendent of Police rank by rotation. Now, since the petitioner is a Leader of opposition, the responsibility to supervise the security is entrusted to an officer of the rank of Deputy Superintendent of Police as per Yellow Book. A Deputy Superintendent of Police has been detailed on the job.
(iii) Earlier, there used to be a Pilot vehicle as per norms of Protocol fixed for the Chief Minister of State. Now, the Pilot vehicle has been dispensed with in accordance with the guidelines of Yellow Book. However, a member of the District Police Force having knowledge about the topography is being provided during visits outside the residence to act as Pilot.6
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(iv) Earlier, there used to be guards and Access Control Parties at all places of visits of petitioner viz., NTR Trust Bhavan, Farm House in Madinaguda in Cyberabad limits and Naravaripalli in Chittoor District. Now, the security at all these places is withdrawn since the petitioner rarely visits these places. However, adequate security arrangements, as per the scale, are being provided whenever the petitioner visits these places. Thus, the petitioner is provided with nearly double the security cover than what has been prescribed for Z+ category protectees. The petitioner is provided with 2 armed escorts of 1+3 with automatic weapons round the clock and the security cover provided to him is no less stronger than the NSG cover.
(v) The residence of petitioner in Amaravati is located in a route which is being regularly used by the Hon'ble Chief Minister of Andhra Pradesh, Ministers and other public representatives. Hence, strict sanitization and area domination is carried out by security forces daily. Therefore, deployment of dedicated force to secure the routes towards his residence is redundant. Nevertheless, a dedicated patrolling team is deployed round the clock to take care of the security of surrounding areas of the residence. Apart from that, whenever the petitioner attends local programmes, thorough anti sabotage checks, road openings, ring round teams and area domination are being 7 UDPR,J W.P. No.8280 of 2019 carried out based on local conditions in accordance with Yellow Book.
(vi) VIP security cannot be assessed solely in terms of number of personnel being deployed. Advancements in technology help in improving the overall efficacy of security cover as well as reducing the manpower requirement. Unlike in the past, the areas in and around the residence of petitioner are under thorough surveillance with advanced C.C. TV coverage monitored round the clock. Advance security gadgets like under vehicle surveillance system, X-ray baggage scanners are being used to carry out anti sabotage checks. Night vision goggles and thermal imagers facilitate to keep watch for treks from a distance even during night. Hence, the reduction in the number of men as compared to 2005 in no way be construed as reduction in security.
4. While admitting that it is the constitutional obligation of the State to provide security to every individual and more so to constitutional functionaries at the State expense, it is submitted in the case of petitioner also the State provides for protection and security cover nearly twice the number of security personnel than prescribed under Yellow Book for Z+ category protectees. The threat perception and detection of security cover is done by high level committee called 8 UDPR,J W.P. No.8280 of 2019 the State Level Security Review Committee (for short, 'the Committee') headed by Additional D.G.P. (Intelligence) as its nodal officer, the other members range from Inspector Generals to S.Ps. The said committee calls for threat perception reports for various candidates and continuously screens and revises the security cover.
5. Denying the petition allegations that the petitioner was not put to notice of reviewing of the security cover, it is contended that a Chief Security Officer of the rank of S.P. had personally briefed the petitioner of his security cover and explained in detail and the same was recorded on paper by the Officer. The petitioner cannot be extended the security cover, which was being provided when he was the Chief Minister of the State, and therefore, such comparison cannot be made by the petitioner. The Committee had taken all the relevant materials and accordingly provided the security.
6. Referring to the incidents transpired during the preliminary hearing of the petition, it is submitted in the counter that at that stage, the petitioner was provided with a comprehensive statement in relation to the security cover being provided to him detailing therein every aspect of petitioner's security cover. On perusal of the said document, the petitioner raised three issues before the Court.
(i) His close proximity team has been removed; 9 UDPR,J W.P. No.8280 of 2019 (ii) The C.S.O. provided to him was not reporting to duty and
so the petitioner requires a C.S.O. of his choice and
(iii) The jammer which was earlier a part of his convoy was not being provided.
(a) In the counter, the above issues are answered thus: The close proximate security of the petitioner is now being taken care by the NSG. The DGP of A.P. received communication from the NSG that they have comprehensively reviewed their security protocols and upgraded their close proximity security related protocols and hence they would be providing the close proximity security to the highly threatened people. This fact was tried to be intimated by NSG to the petitioner but the petitioner did not cooperate.
(b) The second issue is concerned, a Dy.SP rank officer who is assigned as CSO to the petitioner has been reporting to the duty. The request of the petitioner that he would like to have a CSO of his choice is not acceptable which is against the departmental principles and discipline and which will encourage favouritism and thus dilute the core values of fairness and equality. Mr.K.Madhusudan Rao, the CSO deputed at present to the petitioner, is a competent officer having 20 years of service and thorough knowledge of VIP security. 10
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(c) The third issue relating to provision of jammer is concerned, the jammer is provided to him all the times in Andhra Pradesh but once while he was on a visit to Hyderabad, the Hyderabad Police did not have a jammer to provide to the petitioner, though DGP sent a written request to his Telangana counterpart, the same was declined. After the said incident, the department at A.P. made arrangements to provide the petitioner with a jammer in Hyderabad also. The jammer which is a part of the convoy of the petitioner at A.P. will be sent to Hyderabad to provide security to the petitioner. The respondent thus prayed to dismiss the writ petition.
7. It is to be noted that as per order dated 18.07.2019 in I.A. No.2 of 2019, the Director General, NSG, New Delhi, is added as 5th respondent on the request of petitioner.
8. Heard Sri Dammalapati Srinivas, learned senior counsel, appearing on behalf of Sri Ginjupalli Subba Rao, learned counsel for the petitioner, learned Advocate General, appearing on behalf of respondent Nos. 1 to 4, and Sri B.Krishna Mohan, learned Assistant Solicitor General, appearing on behalf of respondent No.5.
9. The point for consideration is, whether the security of the petitioner is scaled down and if so, whether the writ petition can be 11 UDPR,J W.P. No.8280 of 2019 allowed and suitable direction can be given to the respondents in that regard?
10. POINT: I have given my thoughtful consideration to the sensitive issue involved in this matter. The subject of extension of security protection is no more res integra because a judicial scheme has been evolved and mandated in the form of guidelines by a Division Bench of this Court in G.Subas Reddy (1 supra) and guidelines 1 to 3 are germane for consideration, which are as follows:
"(1) The State has a duty to provide necessary security to the constitutional functionaries and if there is any expense upon such security, the Government can do so out of the funds of the exchequer of the State;
(2) The Government has a duty to protect the properties of the State including the Union and other State Governments and any expenses for security of the properties of the State can legitimately be borne out of the State's exchequer;
(3) Depending upon the threat perception in respect of such statutory functionaries which are discharging duties on behalf of the State, the Government may take a policy decision and provide security to such personnel to such extent as decided by the Government and expenses for the same can legitimately be borne by the State exchequer".12
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(a) In the light of above guidelines and having regard to the admitted fact that the petitioner is the Ex.Chief Minister and the present Member of Legislative Assembly-cum-Leader of the opposition and also that he is already a Z+ category protectee due to the threat perception to his life and limb, which still persists, he is entitled to the security at the expense of State. Of course, the respondents have not denied this fact and rather admitted in their counter. Therefore, the crucial question that falls for consideration of this Court is whether the respondents have either scaled down his Z+ category or without scaling down the same, have reduced the security personnel at different cordons.
11. It should be noted that during the preliminary hearing of this matter, having regard to the argument of learned counsel for the petitioner Sri Dammalapati Srinivas that the respondents on the guise of the recommendation of the Committee, reduced the number of security personnel at different stages of security cover without actually scaling down the Z+ category of the petitioner and also having regard to the sensitivity of the issue, instructed the learned Advocate General to furnish the particulars of number of security personnel of different ranks provided at different stages of the security cover to the petitioner and directed both the learned counsel to iron 13 UDPR,J W.P. No.8280 of 2019 out the differences, if any, and submit to the Court. Learned Advocate General accordingly furnished the necessary particulars to the learned counsel for petitioner and it appears they had a mutual discussion with the aid of relevant security officers and thereafter the learned Advocate General has filed his counter.
12. Learned Advocate General would submit that as per the Yellow Book which is a manual prescribed by the Government of India, Ministry of Home Affairs, for security arrangements for protection of individuals, a total number of 58 personnel of different ranks was prescribed for the security cover of a Z+ category protectee and in the instant case since the petitioner belongs to said category, the respondents have provided 97 security personnel which is more than the number prescribed by the Yellow Book and therefore the petitioner cannot have any legitimate grievance.
13. Per contra, learned counsel for the petitioner would submit that the respondents in counter mentioned as if 97 security personnel were allocated to the petitioner but in some of the papers furnished to him, mentioned the security cover as 74 but he is not much concentrating on the said variation but the main controversy is in respect of the following aspects.
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(a) Hitherto petitioner was provided with 5 member - close proximate team in three shifts but the same has been dispensed with now;
(b) The petitioner was provided with 2 CSOs and now only one CSO is provided who is also not attending the duty;
(c) The jammer which was earlier provided to the petitioner and was a part of his convoy is not being provided now.
Learned counsel thus submitted that if the above three issues are solved he will have no grievance regarding the security of the petitioner.
14. So far as the services of the close proximate team is concerned, learned AG would submit that in the past personal security of the protectee used to be taken care by the CPTs headed by an Inspector. However, in view of latest technological advancements and availability of several security gadgets, the NSG having realized that so many 'boots on ground' would be a redundancy, entrusted the close proximate security of the petitioner also to the NSG vide letter dated 13.02.2018 of Director General, National Security Guards, New Delhi, to the Director General of Police, A.P. Since the NSG which used to provide mobile cover security earlier, has changed its protocol and started taking the role of close proximate team, providing 5 15 UDPR,J W.P. No.8280 of 2019 member close proximate team in three shifts does not arise. However, in accordance with the provisions of the Yellow Book 2 PSOs at a time round the clock are provided to the petitioner.
15. At this juncture, Sri B.Krishna Mohan, learned Assistant Solicitor General, on instructions, would however, submit that NSG has been mandated to provide mobile security to the protectee when the highly threatened person (HPT) is on the move from one place to another. NSG with the assistance of local police provides security to the protectee during movement. When the protectee is static at his house/office/guest house/place of function, it is the responsibility of the local police to provide protection to HTP. He would further submit that the petitioner has been provided mobile security as per standard protocol of NSG which is applicable to all its NSG protectees in the country. NSG mobile security to the petitioner has not been scaled down in any way after he demitted Office of the Chief Minister. His security has been recently reviewed by the Ministry of Home Affairs (MHA) and it has been decided to continue his NSG mobile security in Z+ category.
16. Thus, there is a dichotomy of argument between learned Advocate General and Assistant Solicitor General. While the former would argue that of late the role of CPT has been taken over by NSG, 16 UDPR,J W.P. No.8280 of 2019 the latter would submit that NSG provides only mobile security to the protectee but when the protectee is in static condition, the responsibility rests with the CPT. In this context, a perusal of the copy of the letter, dated 13.02.2018, said to be addressed by Director General, NSG to DGP A.P., as well as the copy of proceedings of the Co-ordination meeting held with NSG, CPF by OSD/DIG (Security), dated 24.01.2019, produced by Advocate General support his version as if the NSG which was originally intended to provide mobile security cover, now by virtue of revised protocol is performing CPT duties. However, that is not the end of the matter. The copy of the written instructions dated 23.07.2019 produced by the learned Assistant Solicitor General connotes as if NSG is mandated to provide only mobile security to the protectee. Having regard to the sensitivity of the issue, this Court is not inclined to express its opinion, rather direct both the high level security agencies to solve out the difference of opinion within a specified time frame and in the meanwhile, to extend the CPT coverage as it used to be there in the past.
17. Nextly, the claim of the petitioner that previously he had 2 CSOs and now only one CSO is provided to him who is also not attending the duty is concerned, the submission of learned Advocate General is that while the petitioner was officiating as the Chief 17 UDPR,J W.P. No.8280 of 2019 Minister, his security arrangements were supervised by 2 CSOs of Additional Superintendent Police rank by rotation; now that the petitioner is the leader of opposition, the responsibility to supervise the security is entrusted to an officer of DSP rank as mandated in the Yellow Book. Learned AG would further submit the petitioner addressed a letter to the Director General of Police, stating therein as if the AG agreed before the Court to draft suitable Chief Security Officer of the choice of the petitioner and thus requested the DGP to draft one named officer as his CSO. Learned AG would submit that he never conceded that a CSO of the choice of the petitioner would be drafted and posted which is against the principles and disciplines of the Police department and if agreed it will dilute the core values of the fairness and equality.
In the above context, when perused the Yellow Book produced by the learned AG, on the guidelines relating to the security of Z+ category protectee, it inter alia states that one Inspector/Sub-Inspector of Police will be in charge of security arrangements round the clock under over all supervision of an officer not below the rank of Dy.SP/ASP. In that view, I find considerable force in the submission of learned AG. Since the petitioner is a Z+ category protectee, he is entitled to one CSO. As rightly submitted by learned AG, previously 18 UDPR,J W.P. No.8280 of 2019 while the petitioner was holding the office of Chief Minister, he must have been provided two CSOs. However, now that he is the leader of opposition-cum-a Z+ category protectee, respondents cannot be found fault for providing only one CSO. Further, as submitted by learned AG, posting of CSO cannot be the choice of the petitioner but must be based on objective assessment of operational efficacy of available officers, suitable to handle the highly sensitive and responsible task. Of course, if there are any lapses on the part of the officer so posted, the petitioner has the liberty to report to his higher ups for change of guard.
18. Then, jammer issue is concerned, learned AG while submitting that it was only once when the petitioner went to Hyderabad, the jammer could not be provided since the counterparts at Hyderabad declined the request of A.P. officials to provide jammer, assured that the department has made arrangements to provide the petitioner with a jammer in Hyderabad also.
19. In the light of above discussion, the writ petition is disposed of with the following directions:
(i) The petitioner, who is a Z+ category protectee, shall be provided a security cover by 97 personnel of different ranks, as submitted by the respondents in their 19 UDPR,J W.P. No.8280 of 2019 counter, till such security cover is revised by the concerned authorities.
(ii) In addition to above, the security coverage of close proximate team (CPT) is concerned, since there is a difference of opinion among respondents about the role of NSG, it is directed that within three (3) months from the date of this order, respondent Nos.1 to 5 shall come to a concurrent opinion about the role of NSG. If it is ultimately decided by them that the NSG takes over the role of CPT apart from providing mobile security to the protectee, then two PSOs round the clock in three shifts shall be provided to the petitioner. On the other hand, if it is ultimately decided that NSG looks after only the mobile security of the petitioner, then the CPT shall be restored to the petitioner with 5 members in three shifts.
The decision taken among the respondents shall be communicated to the petitioner in writing through a responsible officer.
(iii) The petitioner shall be provided with one CSO but the choice of selection does not rest with the petitioner.
(iv) The petitioner shall be provided with a jammer both in static and mobile conditions. No order as to costs. 20
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20. As a sequel, miscellaneous petitions pending, if any, shall stand closed.
______________________________ U. DURGA PRASAD RAO, J Date:14.08.2019 Dsh