Gauhati High Court
Jugal Baruah vs Union Of India (Uoi) And Ors. on 26 August, 2002
Equivalent citations: AIR2003GAU37, (2003)1GLR142, AIR 2003 GAUHATI 37, (2003) 1 GAU LR 142
Author: A.H. Saikia
Bench: P.P. Naolekar, A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Both these Writ Petitions have been filed under the nomenclature of Public Interest Litigation (hereinafter referred to as PIL) seeking judicial intervention of this Court under Articles 226 of the Constitution of India projecting the grievances against the proposed shifting of the entire establishment of Special Service Bureau (for Short 'SSB') from North Eastern Region (hereinafter called as N.E. Region) by the respondents - Union of India and others, for its deployment to various other places in Indo-Nepal Border in the States of West Bengal and Bihar. Since both the writ Petitions carry a common issue based on similar and identical factual matrix, we propose to hear both the matter analogously and thereby to dispose of the same by this common order.
2. The entire pivot of the controversy revolves round the proposed shifting of SSB Unit from N.E. Region especially from Assam and Arunachal Pradesh to other parts of the country.
3. The common case, in short compass, of the Petitioners is that the SSB being a Para Military Force for short the 'Force') under the Ministry of Home, Govt. of India, has been formed as far back as in 1963 following the Indo-China War in the year 1962 with specific aims and objectives to check border infiltration providing vital intelligence inputs from the remote areas and to perform social activities for all round growth and development of rural population in remote and border areas of the N.E. Region bordering the neighbouring countries namely Bhutan, China Myanmar and Bangladesh. While SSB, manned by a strong determined Force of over 30,000 (thirty thousand) trained Volunteers working in different Divisional Headquarters located in four Divisional Headquarters of N.E. Region and other Area Headquarters spreading across the seven stated, has been discharging and performing their respective duties and works with utmost sincerity and committed devotion in these sensitive areas in the interest of security of the country. But suddenly the Respondents are seeking to shift the entire SSB Unit from the N.E. Region to other parts of the country, namely West Bengal, Bihar and Uttar Pradesh for the reason best known to them. Such hurried and hasty decision of shifting of this vital Organisation has been taken by the Respondents without specifying any valid and acceptable reasons and more importantly without the knowledge and against the sentiments of the people of this Region. This unanticipated action on the part of the respondents in shifting the SSB which has already been estimated as one of the best force for its commendable social and voluntary services in this region, without showing any cogent or overwhelming justification, is an arbitrary and illegal exercise of administrative power so vested upon the respondents and, therefore, a mandamus has been sought not to give effect to the proposed move to shift SSB with lock, stock and barrel from this region.
4. Be it noted that in PIL No. 11/2002 the Petitioner is a business man having his permanent residence at Tezpur in the State of Assam and has been associated actively with several socio-cultural organisation in the District and the State. By this Public Interest Litigation, the Petitioner has sought to agitate an issue that involves public interest on behalf of the large number of people who are in a dis-advantage position on account of the social and economic disabilities/impediment and are unable to approach this Hon'ble Court to assail and enforce their rights on account of their in capacities.
5. The Petition in PIL No. 15/2002, being an ex-service man of SSB, is a social worker having his residence at Gohpur Tiniali in the Papumpare District in the State of Arunachal Pradesh and have also been actively associated with the several socio-cultural Organisation in the State of Arunachal Pradesh. Being a social worker and deeply concerned with the issues of topical as well as public interest, the Petitioner also seeks to espouse the common cause as sought by the Petitioner in PIL No. 11/2002.
6. We have heard Mr. A. R. Borthakur, learned Senior Counsel representing the Petitioner in PIL No. 11/2002 and Mr. D. K. Misra, learned Senior Counsel representing the Petitioner in PIL No. 15/ 2002. Also heard Mr. C. Choudhury, learned Senior Central Govt. Standing counsel and Mr. Y. Doley, learned Additional Central Govt. Standing counsel for the Respondents.
7. Denouncing the proposed shifting of SSB Unit, Mr. Borthakur, learned Senior Counsel has forcefully contended that the intended displacement of the SSB unit in its entirety from the N.E. Region smacks of oblique motivation and wilful discrimination against the entire people of N.E. Region. In a bid to deprive the people of mass employment as well as overall development and beneficial activities enjoyed by them due to the laudable social service rendered by SSB, in this region since its inception, the Respondents have deliberately initiated the impugned shifting. This is a clear case of arbitrariness and unreasonableness that needs immediate interference of this Court by exercising the power of judicial review.
8. According to Mr. D. K. Misra, learned Senior Counsel appearing on behalf of PIL No. 15/2002, the SSB has been created initially as a force for the N.E. Region with a definite purpose to safe guard and protect the Border areas in the interest of national security and by the advent of SSB, the people of this Region particularly the State of Arunachal Pradesh have been benefited tremendously. His contention is that the SSB as a whole comprises of 10,500 males and female persons in Arunachal Pradesh with their involvement in the field activities as well as other areas aimed at baord national objectives. But the Respondents/Govt. of India, without taking into account all the relevant considerations and ground realities, it is learnt, have taken this abrupt decision by way of policy decision of shift the SSB unit from the State of Arunachal Pradesh and deploy them in Indo-Nepal border vide order No. 1/SSB/A-2/2001(2) 972-1038, Dtd. 12.4.2002 directing shifting of SSB Areas (non-uniform) to Indo-Nepal Border before 31.5.2002 and vide No. 1/16/2001-SSB/E - 11/1065-1163. Dt. 24.4.2002 directing shifting of all Battalions (uniform and armed) to Indo-Nepal border by 3.1.5.2002 and W/T message No. 1/SSB/ D/2001(1) Pt. A (P & S) dated 31.12.2001. Mr. Misra has stated that such decision the Respondent No. 1 to dismantle SSB Unit in the State of Arunachal Pradesh and thereby transferring the personnel from far distance places and leaving no trace of its presence in the State of Arunachal Pradesh in particular and the N.E. State in general shall have serious negative and adverse fall out for the people of this Region and Arunachal Pradesh in particular and as such, the entire action must be treated as wholly unreasonable, irrational and betrays the fact that no application of mind ever existed or facts ever appreciated in its entirety before this hasty decision was taken. That being so, the Petitioner has sought for a mandamus by way of direction not to give effect to the proposed move to shift all the offices of the SSB located in the State of Arunachal Pradesh as per orders/Notifications dated 12.4.2002 as well as 24.4.2002.
9. Debunking the contentions and allegations of arbitrariness and motivation advanced on behalf of the Petitioners, the Respondents have filed their counter. The relevant records have also been produced for perusal.
10. Mr. C. Choudhury, learned Sr. Central Govt. Standing counsel relying on the affidavit-in-opposition filed by the Respondents as well as the relevant records, has categorically denied the allegations made in the writ petition stating that the proposed shifting is purely and simply a policy decision of the Government taken on the security reason. This policy decision has been taken by the Govt. to deploy the entire SSB Unit in the Indo-Nepal Border considering the sensitiveness of those areas and placement of the entire SSB Unit from N. E. Region shall be made in the different parts in the States of West Bengal, Bihar and Uttar Pradesh bordering Nepal. It is contended by Mr. Choudhury that such deployment has to be made in the national interest and the Petitioner cannot be permitted to question such Govt. policy touching the very sensitive issue like national security.
11. We have discreetly scanned the materials available on record being placed before us. On careful perusal of the same, it clearly appears that on 29.6.2001 in terms of the recommendation made on 19.2.2001 by the Group of Ministers on Reforming the National Security System, the Govt. of India, Ministry of Home Affairs decided for deployment of Intelligence Wings of various Border Guarding Forces in various parts of the States bordering neighbouring countries. The records shows that SSB has been proposed to be deployed in Indo-Nepal Border when BSF for Indo-Pak Border, Gujarat, Rajasthan, Punjab & Parts of J & K. including Indo-Bangladesh Border and both ITBP and AR to be deployed in the Indo-China Border and Indo-Myanmar Border respectively. As a sequel of such Government decision the Government of India vide order No. 1/SSB/A-2/2001(2)972-1038 dated the 12th April, 2002 has order relocation of the SSB Unit from their existing Headquarters of Area Organisers, etc. to the new locations on Indo-Nepal Border as per Annexure-A. The Annexure-A indicates that it is not only from N. E. Region but also from other part of the country like Uttaranchal, the SSB Unit has also been detailed to the Indo-Nepal Border. The order vide No. 1/16/2001-SSB/E-II-1065-1163 dated 24.4.2002 the Govt. of India, Ministry of Home Affairs has ordered restructuring of SSB unit of Indo-Nepal Border pursuant to the approval of re-allocation of the 25 Battalions of SSB Unit by the Ministry of Home Affairs. This order dated 24.4.2002 transpires that the SSB Units across the country namely Division from U. P., Himachal Pradesh, Jammu & Kashmir, Rajasthan and Gujarat, South Bengal and North Bengal and Sikkim including Arunachal Pradesh, Manipur Shillong, have been found wholly restructured and deployed on various parts of the country. It also goes to show that besides SSB unit of Assam, Divisions from Uttaranchal, U.P Division and West Bengal have also been deployed in the Indo-Nepal Border. It may be mentioned that these above referred orders have been sought to be interfered in PIL No. 15/2002. On such careful scrutiny, we are satisfied that the instant shifting measure of SSB has been taken by the Respondents in the national interest on the security reasons for its deployment in the Indo-Nepal border which is, being open and porus, more sensitive to be managed compared to that closed border and, therefore, it requires closer supervision and better management which can be managed only by SSB. Since the entire matter relates to the security of the country based on policy decision, in our considered view, this Court cannot and shall not sit over such Govt. Policy. A conspectus perusal of record does not display any sort of un-reasonableness or arbitrariness on the part of the Respondents in arriving at such policy warranting interference by this Court as alleged.
12. In a chain of decisions, the Apex Court has discouraged and disapproved the judicial review of Govt. decision unless such action is un-constitutional or contrary to the Statutory provision or arbitrary and irrational decision. It is the domain and wisdom of the Govt. to take a decision in the exigencies of national interest. In such matter the power of judicial review is very limited and circumscribed. The Apex Court in W. B. Housing Board v. Brijendra Prasad Gupta and Ors., reported in (1997) 6 SCC 207 held that action based on a Govt. policy unless un-constitutional or contrary to statutory provisions or arbitrary, irrational or in abuse of power cannot be subject-matter of judicial review. In paragraph 32 of the aforesaid Judgment Hon'ble Mr. Justice Wadhwa observed as follows -
"The courts normally do not interfere in the policy matters of the State. If, however, the policy so formulated is against the mandate of the Constitution or any statutory provision it can certainly be tested on the principles of judicial review. When an act falls within the policy of the State which has been formulated for the benefits of the poor and needy and which policy cannot be faulted, the court should stay its hands and need not examine the details minutely with a magnifying glass to find some fault here and there unless there are allegations of mala fides. An overall view is to be taken of the matter and this potent weapon of judicial review cannot be used indiscriminately."
13. In Krishnan Kakkanth v. Govt. of Kerala and Ors. reported in (1997) 9 SCC 495 the Apex Court in paragraph 36 of the Judgment ruled as under -
"To ascertain unreasonableness and arbitrariness in the context of article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid "embarking on uncharted ocean of public policy".
14. In another case reported in (1998) 4 SCC 117 (State of Pubjab v. Ram Lubhaya Bagga and Ors.) the Apex Court observed that the wisdom of policy matter cannot be judicially scrutinised unless the said policy is arbitrary or violative of law. In paragraph 25 Hon'ble Mr. Justice Misra speaking for the Court recorded as follows -
".... So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provisions of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belongs to the executive."
15. In an epic decision 'Narmada Bachao' case (Narmada Bachao Andolan etc. v. Union of India and Ors.) in AIR 2000 SC 3751 the Apex Court while dealing with the question of judicial review of policy decision by the Government on a PIL expressed the views that if a policy decision is taken by the Government after due care and consideration unless the same is in conflict with any law or mala fide it will not be in the public interest to require the Court to go into and investigate those areas which are the function of the executive. Hon'ble Mr. Justice Kirpal (as he then was) writing the Judgment for the Court observed in paragraph 259 as under -
"At the same time, in exercise of its enormous power the Court should not be called upon or undertake governmental duties or functions. The courts cannot run the Government nor the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the constitution casts on it a great obligation as the sentinel to defend the values of the constitution and rights of Indians. The Courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this court that in matter of policy the Court will not interfere."
16. In the light of the above precedents, we unhesitatingly hold that the policy decision of the Govt. based on reasonableness and fairness and not being contrary to law and mala fide that too significantly when taken on security reason, cannot be questioned in the Court of law and this Court must exercise restrain to sit over such decision. A policy decision adopted in the National interest on security reason is immune from judicial review. It is patent that complex questions of policy decision of Govt. are not justiciable. Therefore the allegations of arbitrariness and discrimination in the instant case are manifestly absurb and ex facie untenable.
17. Since these Petitions have been filed as Public Interest Litigation, we feel it fit and proper to discern and highlight the scope of PIL in the present context. In a case of Shri Sachidanand Pandey and Anr. v. State of West Bengal and Ors., reported in AIR 1987 SC 1109, Hon'ble Khalid, J, while dealing with a PIL Petition was compelled to note as follows in paragraphs 45 and 58 of the judgment -
".... This case goes by the name "Public Interest Litigation." I wish to delineate the parameters of public interest litigation concisely, against the background of the facts of this case, so that this salutary type of litigation does not lose its credibility. Today public spirited litigants rush to Courts to file cases in profusion under the this attractive name. They must inspire confidence in Courts and among the public. They must above suspicions."
"58.......Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reasons. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions,"
The said observations of Hon'ble Mr. Justice Khalid found support in another decision reported in (1999) 6 SCC 552 (Malik Brothers v. Narendra Dadhich and Ors.). The Apex Court in the said case examining a PIL categorically indicated in paragraph-2 as under -
"... a public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the courts of law in a public interest litigation are for the betterment of the society at large and not for benefitting any individual. But if the court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected, it would be the bounden duty of the court not to entertain such Petitions as otherwise a very purpose of innovation of public interest litigation will be frustrated. It is in fact a litigation in which a person is not aggrieved personally but brings an action on behalf of the down trodden mass for the redressal of their grievance."
18. In Narmada Bacjhao case (supra) the Apex Court observed that Court should refrain from interfering with any decision taken up by the Government on due deliberation just because a Petitioner by filing a PIL alleges that such decision ought not to have been taken because an opposite view against the said policy, which view may have been considered by the Government, is possible. In paragraph 260 of the said decision the Court held as under -
"In respect of public projects and policies which are initiated by the Government the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in Public Interest to require the Court to go into an investigate those areas which are the function of the executive. For any project which is approved after due deliberation the Court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite, view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision."
19. Having regard to the above judicial decisions and upon hearing the learned counsel for the parties, we are of the considered view that redressal of public injury, enforcement of public duty, protection of social rights and vindication of public interest must be the parameters for entertaining a PIL. The court has a bounden duty to see whether any legal injury is caused to a person or a cluster of persons or an indeterminate class of persons by way of infringement of any Constitutional or other legal rights while delving into a PIL, The existence of any public interest as well as bona fide are the other vital areas to come under the Court's scrutiny. In absence of any legal injury or public interest or bona fide a PIL is liable to be dismissed at the threshold. It is to be borne in mind that ultimately it is the Rule of law that is to be vindicated. As such there is a need for restraint on the part of the Public Interest Litigants when they move Courts. The Courts should also be cautious and selective in accepting PIL as well. In order to check the free flow of PIL, the Supreme Court has laid down 10 guidelines which are as follows -
"1. Bonded Labour matters.
2. Neglected children.
3. Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Laws (except in individual cases)
4. Petitions from Jails complaining of harassment, for pre-mature release and seeking release after having completed 14 years in Jail, death in the Jail (sic) released on personal bond, speedy trial as a right.
5. Petitions against police for refusing to register a case, harassment by police and death in police custody.
6. Petition against atrocities on women, in particular harassment of bride, bride-burning, rape, murder, kidnapping, etc.
7. Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Castes and Scheduled Tribes and economically backward classes.
8. Petitions pertaining to environmental pollution, disturbances of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance.
9. Petitions for riot-victims.
10. Family pension."
Matters which are not to be entertained as PIL are indicated as below : "
(1) Landlord - Tenant Matters, (2) Service matter and those pertaining to Pension and Gratuity.
(3) Complaints against Central/State Government Deptts. and Local Bodies except those relating to item Nos. (1) to (10) above.
(4) Admission to medical and other educational institution.
(5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts".
(See Prantosh Roy and Ors. v. State of Assam and Ors. reported in (2001) 1 GLR 242) The present case does not come within the above guidelines. On the contrary, it falls under Clause (3) of the matters which are not to be entertained as PIL as noticed above. In the case in hand, it appears that admittedly the Petitioners have not alleged unconstitutionality and illegality of the policy decision of Government save and except the Respondents' arbitrariness, discrimination and motivation. It is also not the case of the Petitioners that any Constitutional or statutory rights whatsoever either of the Petitioner or the people of N. E. Region have been contravened by such withdrawal of SSB Unit from N. E. Region. Since we have already safely noticed that the policy decision to reinduct the SSB from its present location and reassign it to the job of border guarding force on the Indo-Nepal Border is not arbitrary or discriminatory, there is no public interest involved in these PILs. Rather, it is viewed that the entire exercise of such shifting has been made in the public interest on the security reasons. Accordingly, these Petitions cannot be included within the parameters of PIL as pointed hereinabove.
20. Having bestowed upon our anxious consideration to the rival contentions of the parties as well as on meticulous scrutiny of the material available on record and in the light of what has been observed above, we without any hesitation, hold both Writ Petitions in form of PIL are not at all maintainable.
21. Consequently, for the foregoing reasons and discussions, these Writ Petitions are dismissed. However taken overall, we are disinclined to pass any order as to costs.
Records so placed before us to be delivered forthwith to Mr. Choudhury, the learned Sr. C. G. S.C.