Madras High Court
Alarmelu Mangai vs The Secretary To The Government Of Tamil ... on 27 April, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.14781 of 2004 Alarmelu Mangai .. Petitioner Vs. 1.The Secretary to the Government of Tamil Nadu, Public Department, Fort St. George, Chennai-9. 2.The Director General of Police, C.R.P.F., C.G.O Complex, Lodhi Road, New Delhi-110 003. 3.The Additional Deputy Inspector General of Police, G.C., C.R.P.F., Avadi, Chennai-65. 4.The Superintendent of Police, Chengai East District, Chennai-16. 5.Mr.S.K.Dey (Subethar Major) Inspector of Police, Type III, Quarters No.324, GC, CRPF Avadi. Chennai-65. 6.Mr.Thangadurai, Inspector of Police, Muthapudhupet, Incharge, F2 Tank Factory Police Station, Avadi, Chennai-65. 7.Mr.Suresh, Head Constable Muthapudhupet, Incharge, F2 Tank Factory Police Station, Avadi, Chennai-65. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to pay compensation of Rs.50 lakhs in favour of the petitioner for the wrongs committed on her by them. For Petitioner : Mr.V.Vaithiyalingam for Mr.M.Gnanalingam For Respondents : Mr.R.Neelakandan, GA for R1 Mr.Gopi Krishnan for RR2 and 3 Mr.V.Lakshmi Narayanan, Amicus curiae - - - - ORDER
Heard the arguments of Mr.V.Vaithiyalingam, learned counsel for Mr.M.Gnanalingam, learned counsel appearing for the petitioner, Mr.R.Neelakandan, learned Government Advocate for first respondent, Mr.Gopi Krishnan, learned Standing Counsel appearing for respondents 2 and 3 and Mr.V.Lakshmi Narayanan, Amicus curiae counsel for the court.
2.The petitioner has filed the present writ petition, seeking for a direction to the respondents to pay compensation of Rs.50 lakhs for the wrongs committed by the respondents. Pending the writ petition, she has also sought for restraining the third respondent and his men from forcibly evicting her from quarters No.1124, Special E Block, Type 1, GC, CRPF, Avadi, Chennai. The writ petition was admitted on 26.5.2004. In the application regarding quarters, an interim injunction was granted. Subsequently, by an order, dated 11.3.2005, the injunction application was dismissed on the ground that the petitioner has no locus standi for the quarters as it was allotted only to her husband. On notice from this court, on behalf of the respondents, a counter affidavit, dated Nil (September, 2004) was filed.
3.The case of the petitioner was that the petitioner is a Post Graduate in Mathematics. She is married to N.Govindasamy, who is a CRPF Constable posted at Tripura. They had three children, i.e. Lakshmi, who was nine years old, Karthik aged 6 years and the third child is Kishore, who was 4 years old at that time. They are studying at the Kendriya Vidyalaya School, CRPF, Avadi. She was staying alone with her three children in the quarters No.1124, Type 1, Special E Block, GC, CRPF, Avadi for more than three years. Since her husband was posted to the North Eastern sector, she tried her best to bring back her husband to a posting in Tamil Nadu. But that did not succeed. She was taking tuition to her children as well as the children of neighbourhood. She knew one Bagawan, who is a relative of her husband and was serving in the CRPF.
4.The said Bagawan invited her to participate in the birthday celebration of his youngest daughter by name Jugee on 23.1.2004. She had also participated in the said function along with her three children. They were all in a jubilant mood and were having dinner. Half way through the function, there was a knock on the door of Bagawan's quarters. A team of the local police personnel led by the 6th respondent (Inspector of Police) and some CRPF personnel led by the 5th respondent (S.K.Dey, Subethar Major) entered that house. On seeing the petitioner, the sixth respondent abused and charged her as if she was having illicit intimacy with Bagawan. When Bagawan requested them to behave decently, the seventh respondent, an Head Constable attached to Tank Factory Police Station, pushed him aside using filthy words and the 6th respondent assaulted him. The petitioner was forced to get into the jeep along with her children. When she resisted from being taken forcibly, the 6th respondent outraged her modesty and dragging her to the Jeep by holding on to her lock.
5.Bagawan along with his three female children and the petitioner along with her children were taken to F2 Tank Factory Police Station at midnight in the guise of conducting an enquiry. All were kept in the police station upto 2.00 a.m on 24.1.2004. Thereafter, they were set free without conducting an enquiry. It was later the petitioner came to know that the raid was conducted only on the instruction of third respondent, i.e. Additional Deputy Inspector General of Police., GC, CRPF, Avadi. The said incident was published in all the leading daily newspapers and weeklies including the New Indian express, Daily Thanthi, Junior Vikatan, Malai Murasu and India Today. The incident brought disrepute to her character and her Right to Privacy and liberty were infringed because of the callous and rude attitude of the respondents 3 to 7. Ever since the incident, she was made to undergo untold humiliation and to face disgrace in the society. She was unable to face her neighbours in general and her relatives in particular. The mental agony, insults and disgrace can never be compensated. After this incident, her husband also abandoned her. The petitioner at one point of time decided to end her life, but considering the future of her three minor children, changed her mind to face the realities of life. Therefore, she has come forward to file the present writ petition.
6.Though the respondents were served, only respondents 2,3,5 and 7 have filed a common counter affidavit. The other respondents have not filed any counter affidavit. The counter affidavit was sworn to by one George C.Francis, who was the Additional DIGP, GC CRPF, Avadi. According to the third respondent, the petitioner's husband was allotted quarters who was at the relevant time was serving the 42nd Batallion at Tripura. They received a written complaint from one Constable Murugan of the 142nd Battalion on 23.1.2004. It also contained signature of 7 women residing in the campus, complaining that the petitioner was visiting quarters No.1261 occupied by Bagawan, who was a widower. She was found staying at odd hours in the night. On receipt of the said complaint, the third respondent being the Estate Officer-cum-Chief Metropolitan Magistrate ordered the Deputy Commandant (Administration) to carryout a surprise check in the quarters in which Bagawan was staying with his children in order to decide as to whether cognizance was to be taken under Section 10(n) of the CRPF Act. The Deputy Commandant (Administration) in turn informed Mr.Thangadurai, Inspector of F2 Tank Factory Police Station (sixth respondent) having local jurisdiction to accompany them during the surprise check.
7.Thereafter, the Deputy Commandant (Administration), Subedar major, Battalion Havildar Major, Company Havildar Major, one Head Constble (Mahila) of CRPF and the sixth respondent (Thangadurai) and one Constable (Mahila) of local police station carried out a surprise check in quarters No.1261 at 11.05 p.m. On knocking the door, Constable Bagawan opened the door. He was asked about the presence of the petitioner. Constable Bagawan stated that no woman was present in his quarters. The Deputy Commandant (Administration) and Inspector Thangadurai ordered Mahila Head Constable Alagammal of GC, CRPF and the mahila Constable of local police station to go inside the flat and check up the rooms. They found the petitioner hiding in the bedroom and she was brought outside. Bagawan informed the search party that she came to take tuition for his children. Both Bagawan and the petitioner entered into a wordy altercation with Inspector Thangadurai. The sixth respondent felt that they should be further questioned. Hence Bagawan was taken to F2 Tank Factory Police station and the petitioner was taken to the All Women Police station along with Head Constable Mahila Alagammal of CRPF and a Constable Mahila of local police. After about 30 minutes questioning, the State police felt that the relationship between both the parties involved is by mutual consent and it is a trivial matter from the legal point of view. Hence no case was registered against them and they were allowed to come back to the camp in the same vehicle.
8.It is claimed that during surprise check, there was no abuse or harassment either by the State police or by the CRPF to the petitioner. The raid was made on the basis of a complaint. Since the matter was of a trivial nature, the third respondent decided that the prosecution under Section 11(n) of CRPF Act was not called for and no cognizance was taken. A preliminary enquiry was conducted into the habit of the petitioner. It was found that she was regularly visiting Bagawan at odd hours and was indulging in activities detrimental to the good order and discipline in the residential quarters of the CRPF. Initially when she was questioned, she stated that she came to the quarters for giving tuition. In her representation and in the writ petition, she claimed that she went for the birthday celebration of Bagawan's daughter. Therefore, her statement was false. It was also claimed that since there was a complaint from the residents about the inappropriate relationship of the petitioner with the Constable Bagawan, who is a widower, it had become necessary to verify the veracity of the complaint. Hence a surprise check was ordered.
9.It was also claimed that the petitioner's residence was found locked. Only thereafter, Bagawan's quarters was checked, during which time the petitioner was found hiding in his bedroom. It was also claimed that the news item published in the magazines and news papers had emanated due to the petitioner's statement and not by the CRPF. It was further claimed that Govindasamy posted at Tripura came to Avadi on leave with effect from 7.4.2004 to 5.6.2004 and their marital bond was not snapped. The said Govindasamy has been reposted to GC Avadi and he is residing in the same quarters. They are living together in the quarters with effect from 13.8.2004. It was further claimed that the petitioner's indulging inappropriate relationship in the CRPF quarters with scant respect for well established social and moral conduct required in a Government residential colony was violative of provisions of Section 8(c) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It was also claimed that there was no trace of any birthday celebration found on 23.1.2004. Since there was a statutory duty to keep discipline inside the quarters and in order to see that there is no illegal acts or wrong is done, the inspection was carried out. Hence, there was no question of payment of any compensation by them.
10.It is not clear as to why the other respondents, i.e. 4th and 6th respondents never filed any counter affidavit, explaining their role in the episode. When this case came up on 12.10.2009, this court appointed Mr.V.Lakshmi Narayanan, Advocate as amicus curiae to help this court. The learned counsel also readily agreed to discharge his duties as amicus curiae.
11.On the pleadings and counter pleadings, it is clear that the incident as narrated above had taken place and it was done at the instance of the third respondent's order. Though the third respondent kept himself away from being present, the other respondents have barged into the private quarters of Bagawan. They not only insulted Bagawan, but also misbehaved with the petitioner. She was also dragged along with the children of Bagawan as well as her children and was taken to the police station in the middle of the night. She was kept in the police station for half an hour for questioning. The fact that the three children of the petitioner were also taken to the police station was not denied in the counter affidavit filed by the third respondent. Therefore, it can be safely presumed that in the same flat, their children were also present at the relevant time. Therefore, the question of neighbours getting suspicion and on account of their suspicion, the third respondent being informed and his ordering for the inspection of quarters during 11.00 p.m. in the night cannot be a spontaneous event. When the three children of Bagawan and the three children of the petitioner were found in the house at the time of inspection, they could have safely left the house rather than abusing and insulting not only Bagawan, but also assaulting the petitioner. She was dragged by holding her hair by the sixth respondent. The allegations found in paragraphs 3 and 4 in the affidavit were not even denied by the sixth respondent. The fourth and sixth respondents have been served with notices in this regard.
12.Though the third respondent claims to have sky high powers over the quarters allotted to the men in the force, his power to supervise the quarters can be made only under Section 8 of the Public Premises (Eviction of Unauthorised Occuapnts) Act, 1971. Under the said provisions, the Estate Officer has been given power of a civil court for summoning and enforcing attendance of any person requiring the discovery and production of documents. The power was conferred on a Estate Officer only for the purpose of evicting an unauthorised occupants of Government quarters. The petitioner residing in the quarters of her husband is not unauthorised. The Act nowhere contemplates such power to enter into the residential quarters just before midnight and to harass any home maker and to further give a false statement and dragging her to a local police station for a so-called questioning.
13.The stand of the third respondent himself is that no case was registered as it was a trivial incident. The very attempt by the respondents to give huge adverse publicity and unnecessary harassment over trivial issue calls for strong condemnation. In the incident in question, no provision of CRPF Act was attracted. It is a matter coming within the jurisdiction of the State police. Respondents 4 and 6 must be aware of the provisions of Code of Criminal Procedure under which they exercised their powers. Hence it is necessary to refer to Section 160 of Cr.P.C., which reads as follows:
"160.Police officer's power to require attendance of witnesses.- (1)Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides." (Emphasis added)
14.In this context, it is necessary to refer the following passage found in para 19 of the judgment relating to Nandini Satpathy v. P.L. Dani reported in (1978) 2 SCC 424.
"19. Before discussing the core issues, we wish to note our regret, in this case, at a higher level police officer, ignorantly insisting on a woman appearing at the police station, in flagrant contravention of the wholesome proviso to Section 160(1) of the CrPC. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personnel, behind this legislative proscription which keeps juveniles and females away from police company except at the formers safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatising or suspicious provisions now writ across the Code." (Emphasis added)
15.Therefore, the action of the respondents is infringement of Section 160 of Cr.P.C. Further, there is no provision under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 by which an Estate Officer in the absence of an unauthorised occupant holding on to a Government quarters can barge into the residential quarters and conduct an enquiry, which is not contemplated under law.
16.Mr.V.Lakshmi Narayanan, Amicus curiae brought to the notice of the court certain decisions which may have bearing on the present case. He submitted that even under the cases registered under the Suppression of Immoral Traffic in Women and Girls Act (Cenral Act 104 of 1956) (presently Prevention of Immoral Traffic Act), the courts have emphasised the power of the police officer under Section 15(1) of the Act and held that a search made without record is illegal. It was held in State of Rajasthan v. Rehman reported in (1960) 1 SCR 991 = AIR 1960 SC 210 that the law requires reasons should be recorded in writing and search made without such record is illegal. Even in case of prosecution under the Act, such record should be produced during trial and cannot be left to the officer to assert that reasons were recorded.
17.The learned counsel referred to the judgment of this court in Ratnamala Vs. State of Tamil Nadu reported in AIR 1962 Mad 31, wherein it has been held that even a prostitute is entitled to protection of her person. It was emphasised that she is as much entitled to protection as the most respectable woman and intrusion of privacy of woman with an intention to insult her modesty is an offence. The learned counsel brought to the notice of this court the following passage found in paragraph 14, where this court expressed its anguish over an officer using such techniques while implementing an order under the Immoral Trafficing Act, which reads as follows:
"14....No doubt, as the learned Public Prosecutor argues, in S.15(6) of the Central Act 104 of 1956, the special police officer is exempted from liability in any civil or criminal proceeding, in respect of anything lawfully done for the purpose of the search. But I am quite unable to agree that this exemption could be utilised to conduct a search in disregard of elementary decencies, even if they be decencies relating to a prostitute, in the manner disclosed, and most unfortunately disclosed by the record in this case. Here, we have an instance of the officer, accompanied by witnesses, proceeding into the bedroom of a young girl and pushing open a closed door without even the civility of a knock of the warning to her to prepare for the intrusion. Such conduct would be quite inexcusable, unless the officer thereby hopes to gather the evidence which is essential for proof of any charge. But, since prostitution is not an offence, I am really quite unable to see how the officer and party were justified in thus bursting into the bedroom of a girl and surprising P.W.1 and the third accused together in a state of undress. There can be no doubt that such conduct implies an outrage on the modesty of the girl; and I must reiterate that the modesty of a prostitute is entitled to equal protection, with that of any other woman. The technique of such raids must be totally altered; otherwise, grave abuses of the law might enter into the very attempt to enforce the law. I put it to the learned Public Prosecutor whether the officer would similarly think himself justified, in proceeding into a bathroom, where an young girl suspected to be a prostitute was having a bath, in the hope of finding incriminating evidence; the learned Public Prosecutor was compelled to concede that, as raids were conducted at present, such an incident could conceivably occur. The implementation of this Act will hence become an evil, unless it is not merely accompanied by tact and delicacy, but regard is also paid to the true spirit of the legislation, and the technique of the implementation is revolutionized, giving a very subordinate part, if part need be given to it at all, to the unfortunate practice of designing traps and using decoy witnesses...."
18.Thereafter on the question of claiming Right to Privacy, the counsel placed reliance upon the judgment of the Supreme Court in Gobind v. State of M.P. reported in (1975) 2 SCC 148. In that case, the Supreme Court had considered the question as to whether the domiciliary visits of police intrudes into the right of privacy guaranteed under Article 21 of the Constitution. While deciding such a matter, the Supreme Court in paragraph 13 had observed as follows:
"13. In Kharak Singh v. State of U.P.1 the majority said that personal liberty in Article 21 is comprehensive to include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(l)(d). According to the Court, while Article 19(1)(d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue. The Court said:
We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois2 where the learned Judge pointed out that life in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21 means not merely the right to the continuance of a persons animal existence, but a right to the possession of each of his organs his arms and legs etc. We do not entertain any doubt that the word life in Article 21 bears the same signification. Is then the word personal liberty to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a mans home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to assure the dignity of the individual and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as personal liberty having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire constitutional theories. The Court then quoted a passage from the judgment of Frankfurter, J. in Wolf v. Colorado3 to the effect that the security of ones privacy against arbitrary intrusion by the police is basic to a free society and that the knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples. The Court then said that at Common Law every mans house is his castle and that embodies an abiding principle transcending mere protection of property rights and expounds a concept of personal liberty which does not rest upon any element of feudalism or any theory of freedom which has ceased to exist. The Court ultimately came to the conclusion that Regulation 236(b) which authorised domiciliary visits was violative of Article 21 and as there is no law on the basis of which the same could be justified, it must be struck down as unconstitutional. The Court was of the view that the other provisions in Regulation 236 were not bad as no right of privacy has been guaranteed by the Constitution.
19.In paragraphs 16 and 22 of the very same judgment, the Supreme Court further observed as follows:
16. In Griswold v. Connecticut4 a Connecticut statute made the use of contraceptives a criminal offence. The executive and medical directors of the Planned Parenthood League of Connecticut were convicted in the Circuit Court on a charge of having violated the statute as accessories by giving information, instruction and advice to married persons as to the means of preventing conception. The Appellate Division of the Circuit Court affirmed and its judgment was affirmed by the Supreme Court of Errors of Connecticut. On appeal, the Supreme Court of the United States reversed. In an opinion by Douglas, J., expressing the view of five members of the Court, it was held that the statute was invalid as an unconstitutional invasion of the right of privacy of married persons. He said that the right of freedom of speech and press includes not only the right to utter or to print, but also the right to distribute, the right to receive, the right to read and that without those peripheral rights the specific rights would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance, that the various guarantees create zones of privacy, and that protection against all governmental invasion of the sanctity of a mans home and the privacies of life was fundamental. He further said that the inquiry is whether a right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and that privacy is a fundamental personal right, emanating from the totality of the constitutional scheme under which we (Americans) live .
22. There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of State.
20.Permitting domiciliary visits on history sheeters by the Police, the Supreme Court finally struck a note of caution in paragraph 33 and it reads as follows:
"33. When there are two interpretations, one wide and unconstitutional, the other narrower but within constitutional bounds, this Court will read down the overflowing expressions to make them valid. So read, the two regulations are more restricted than counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead a life of crime crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperilling safety of society cannot be regarded as warranting surveillance under this regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging perilously near unconstitutionality."
21.The counsel also relied upon the decision of the House of Lords judgment in Morris Vs. Beardmore (1980 (3) WLR 283), wherein Lord Diplock held while dealing with the case of police man visiting the house of a driver of a motor car for the purpose of making him to undergo breath test held it was not authorised by law. In page 289 of the Report it was observed as follows:
"My Lords, if this be right it must apply not only to comparatively venial trespasses such as that committed in the instant case, but also to cases where entry to the private house of the person sought to be breathalysed has been obtained by the police by forcing doors or windows or overcoming reasonable force lawfully exerted by that person or on his behalf to remove them from the premises. I find it quite impossible to supose that Parliament intended that a person whose common law right to keep his home free from unauthorised intruders had been violated in this way, should be bound under penal sanctions to comply with a demand which only the violation of that common law right had enabled the constable to make to him. In my opinion, in order to constitute a valid requirement the constable who makes it must be acting lawfully towards the person whom he requires to undergo a breath test at the moment that he makes the requirement. He is not acting lawfully if he is then committing the tort of trespass on that person's property, for section 8(2) gives him no authority to do so.
It is not disputed that the superintendent was trespassing on Beardmore's property when Beardmore was required to undergo the breath test. For this reason I feel compelled to allow this appeal.
22.Thereafter, the learned counsel placed reliance upon the judgment of the Supreme Court in Rudul Sah v. State of Bihar reported in (1983) 4 SCC 141, where the Supreme Court considered the illegal detention of a person by police and granted compensation without such persons relegated to the remedy by way of civil suit. It held to be not necessary that in every case such direction should be given. In paragraphs 9 and 10, the Supreme Court had observed as follows:
"9. ..... But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. ......
10. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the States counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioners rights. It may have recourse against those officers.
23.The learned counsel further placed reliance upon the judgment of the Supreme Court in Paschim Banga Khet Mazdoor Samity v. State of W.B.,reported in (1996) 4 SCC 37, wherein the Supreme Court in paragraph 9 had observed as follows:
"9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State, in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. (See: Rudul Sah v. State of Bihar4; Nilabati Behera v. State of Orissa5; Consumer Education and Research Centre v. Union of India6.) Hakim Seikh should, therefore, be suitably compensated for the breach of his right guaranteed under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we fix the amount of such compensation at Rs.25,000. A sum of Rs.15,000 was directed to be paid to Hakim Seikh as interim compensation under the orders of this Court dated 22-4-1994. The balance amount should be paid by Respondent 1 to Hakim Seikh within one month."
24.The learned counsel also relied upon the judgment of the Supreme Court in Chairman, Rly. Board v. Chandrima Das reported in (2000) 2 SCC 465 where even for violation of right of a Foreign citizen, the court had entertained a petition under Article 21 and granted compensation. While doing so, the Supreme Court had observed that the right under Article 21 is some thing more than mere animal existence. In paragraphs 33 and 36, the Supreme Court had observed as follows:
"33. Let us now consider the meaning of the word LIFE interpreted by this Court from time to time. In Kharak Singh v. State of U.P. 37 it was held that the term life indicates something more than mere animal existence. (See also State of Maharashtra v. Chandrabhan Tale 38.) The inhibitions contained in Article 21 against its deprivation extend even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha v. Union of India25 it was held that the right to life under Article 21 means the right to live with dignity, free from exploitation. (See also Maneka Gandhi v. Union of India 39 and Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni 40.) .....
36. It has already been pointed out above that this Court in Bodhisattwa case21 has already held that rape amounts to violation of the fundamental right guaranteed to a woman under Article 21 of the Constitution.
25.After fixing liability on the State to compensate the victim whose fundamental right under Article 21 was violated, the Supreme Court held that the State cannot escape from the liability even action was done by its servants. The sovereign immunity theory was rejected in paragraph 42 and it reads as follows:
42. Running of the Railways is a commercial activity. Establishing the Yatri Niwas at various railway stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the railway stations and the Yatri Niwas, are essential components of the government machinery which carries on the commercial activity. If any of such employees commits an act of tort, the Union Government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal decision46 therefore, cannot be pressed into aid. Moreover, we are dealing with this case under the public law domain and not in a suit instituted under the private law domain against persons who, utilising their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed.
26.On a similar incident of police force entering the house of a private citizen that on complaint was brought before the division bench of the Andhra Pradesh High court vide its judgment in Sadruddin Javeri Vs. Government of Andhra Pradesh and others reported in 2000 (243) ITR 579 (AP), the court found fault with the police action and in paragraph 27, it was observed as follows:
"27.Speaking on the guarantee under Art.21 of the Constitution, it has been often repeated by the Courts that right to life extends to all aspects of living in dignity and in a civilised system as that of ours in India the home or the house in which any law abiding citizen lives in privacy is his most cherished possession. He or she in the privacy of the house enjoys every freedom and any violation of privacy is intrusion into his or her right under Art.21 of the Constitution of India. Laws have for the said reason limited substantially entry into the privacy of the house of men of law only under a search warrant as contemplated under Ss.93 to 100 of the Cr.P.C, 1973 or without warrant only when any police officer having authority to arrest has reason to believe that the person to be arrested has entered into or is within any place and any person residing in or being in charge of such place on demand of the police officer would not allow him free ingress thereto and afford all reasonable facilities for a search therein as in s.47 of the Cr.PC and as earlier discussed to seize certain properties under s.102 of the Cr.PC in the circumstances enumerated therein. Although the mere lodgment of a case there is no deprivation of the liberty which is guaranteed under Art.21 or the right to life therein registration of a case creates apprehension and registration of a false case is a threat to liberty which cannot be denied to any person living in our land of India save by prescribed procedure of law. Penal laws of the land to take notice of such false accusations and make a false prosecution punishable as under S.182 and s.211 of the 'IPC' and other provisions thereof. Besides physical torture which many times follow such illegal actions, mental torture is always present and in the case of the petitioners it is irresistible to conclude that when persons in position as that of respondents 3 to 5 in Writ Petn. 4926 of 1996 with other policemen acted as alleged by them that they suffered in more than one way. Their fortress of privacy was exposed and ransacked. Their possessions illegally taken away from them. Threatened by arrest for the offence which they never committed, they had to move for bail and move from Court to Court finally to seek the protection of the guardians of law under Art.26 of the Constitution of India. If we are civilised society and we have a civilised system of law, we cannot ignore the violation of the right under Art.21 of the Constitution of India. The extra legal methods that respondents 3 to 5 appear to have adopted, by which serious infractions to the petitioners right under Art.21 occurred must be remedied in law as well as in equity....."
27.In paragraph 31 of the same judgment having found there was infringement of a right under Article 21, the court granted compensation and that passage reads as follows:
"31.Having considered the matter in all relevant aspects, we are not inclined in the instant case to give any specific finding as to whether any cash as alleged by the petitioners has also been taken away by the 5th respondent and others. We are, however, inclined on the facts of the instant case to order for immediate release of all the properties seized from the house of the petitioner and by way of compensation to award to them an amount in a sum of Rs.5 lakhs payable by the Government of the State on condition that the Government will be free to proceed departmentally against respondent Nos.3 to 5 in Writ Petn.No.4926 of 1996 and recover from them and said amount of compensation and/or otherwise suitably deal with them in accordance with law. The petitioners, besides the above, shall be entitled to sue the respondent for compensation, if any, in accordance with law and if so advised to make appropriate application in the Court of competent jurisdiction against the 5th respondent and others for the offences that might be found to have been committed by illegal entry into their house, illegal seizure of their properties and illegal prosecution by keeping them under the threat of the complaint in Cr.No.26 of 1996. "
28.The Supreme Court in dealing with the amendment made to Section 73 of the Andhra Prdesh Legislative Act in District Registrar and Collector v. Canara Bank reported in (2005) 1 SCC 496 held that the right to privacy of a person exist apart from right to privacy with reference to place such as home. In this context, the Supreme Court quoted with approval its earlier decision in R.Rajagopal Vs. State of T.N reported in 1994 (6) SCC 632. Paragraph 40 reads as follows:
"40. A two-Judge Bench in R. Rajagopal v. State of T.N.25 held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. It is the right to be let alone. Every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed. The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, Peoples Union for Civil Liberties v. Union of India26, X v. Hospital Z27, Peoples Union for Civil Liberties v. Union of India28 and Sharda v. Dharmpal29.
29.The Supreme Court did not have the hesitation to struck down Section 73 which authorised any person to enter into any house and search the house if in the opinion of that authority that there are documents liable to be impounded are available. In paragraph 58, it was held as follows:
"58. ...... Possessing a document not duly stamped is not by itself any offence. Under the garb of the power conferred by Section 73 the person authorised may go on a rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercise of such power may be remote, but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility. The exercise may prove to be absolutely disproportionate to the purpose sought to be achieved and, therefore, a reasonable nexus between stringency of the provision and the purpose sought to be achieved ceases to exist.
30.The learned counsel also placed reliance upon the judment of the Supreme Court in Sube Singh v. State of Haryana reported in (2006) 3 SCC 178, where the Supreme Court held that the Court can Award compensation for violating Article 21 for cases involving custodial death and torture. In other cases, parties can be delegated to normal remedy in law.
31.Therefore, there is no legal difficulty in ordering compensation to the petitioner for infringement of her Right to Privacy and the ordeal of public humiliation meted out to her by the action of the respondents. Though the public humiliation and mental agony gone by the petitioner can never be compensated in terms of money, yet the respondents cannot be allowed to go scot-free for their constitutional infringement of the right of the petitioner and for having made public humiliation of the petitioner who is not a stranger to the quarters, but the wife of serving Constable who was defending the Country in its North Eastern border.
32.Merely because the petitioner did not have a male escort, that does not give license to the respondents to barge into a house and make a public humiliation of the petitioner, that too in the presence of her minor children. The incalculable damage to her reputation will have haunting memories to her children in future. It must not only be strongly condemned, but the present order should be a deterrence on similar action in future by the respondents. This court do not find any iota of material over which a reasonable opinion was formed so as to enable the respondents to enter into a private house that too just before the midnight.
33.Further, as already noted, there is no authorisation under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for carrying out such raids. Even the Cr.P.C. does not enable them to question a woman by taking her to the police station that too at midnight. The third respondent though claimed to have power of a Chief Metropolitan Magistrate as per the provisions of the CRPF Act, this court did not think that a person having such magisterial power will behave in this fashion. Even as per their own admission, the matter was trivial in nature and there was a consent between the parties. Even assuming without admitting that there was some relationship between the petitioner and the said Bagawan, that does not empower the respondents to do moral policing and snooping in into the private affairs of individuals. That there was a complaint from neighbours was not borne out by records and the assault and outraging the modesty of the petitioner and public humiliation heaped on her is not denied by any counter affidavit either by the State Police and in the counter affidavit by the other respondents.
34.In the light of the above, the writ petition will stand allowed. The second and third respondents are hereby directed to pay compensation of Rs.5,00,000/- (Rupees five lakhs only) to the petitioner within a period of eight weeks from the date of receipt of copy of this order. No costs.
35.This court records its appreciation for the service rendered by Mr.V.Lakshmi Narayanan, Amicus Curiae and for the considerable time spent in bringing relevant materials and case laws, which had a bearing on this case.
vvk To
1.The Secretary to the Government of Tamil Nadu, Public Department, Fort St. George, Chennai-9.
2.The Director General of Police, C.R.P.F., C.G.O Complex, Lodhi Road, New Delhi-110 003.
3.The Additional Deputy Inspector General of Police, G.C., C.R.P.F., Avadi, Chennai-65.
4.The Superintendent of Police, Chengai East District, Chennai 16