Bombay High Court
Arun Gulab Gavli vs The State Of Maharashtra And Ors. on 29 September, 1999
Equivalent citations: (2000)102BOMLR390
Author: Ranjana Desai
Bench: Ranjana Desai
JUDGMENT A.V. Savant, J.
1. Heard both the learned Counsel: Shri R.W. Adik for the petitioner Arun Gavli and the Advocate-General Shri C.J. Sawant for the Respondents.
2. This Petition was heard along with companion Writ Petition No. 364 of 1999 filed by Ramesh Jagdish Sharma for whom we have heard the learned Counsel Shri S.M. Gupte and the learned Advocate-General for the respondents. Since the petitions raised common questions of law, by consent, they were heard together. However, since the facts differ, they are disposed of by two separate Judgments. By consent, however, this Judgment will also cover the legal contentions that are raised in Criminal Writ Petition No. 364 of 1999.
3. At the outset, we must indicate the questions of law which arise in the two petitions; one of Arun Gavli and the other of Ramesh Sharma. They are as under:-
(i) Whether the protection of life and personal liberty guaranteed by Article 21 of the Constitution includes a right in favour of a person like the petitioner, to claim that the State must afford him armed police protection for 24 hours a day; everyday i.e. round the clock.
(ii) If there is no such right flowing from the mandate of Article 21, whether the State can, by an executive fiat, like the Circular dated 9th August, 1990, as amended on 12th May, 1997, distinguish between law abiding persons on the one hand and persons having a criminal background on the other, for the purpose of deciding whether armed police protection round the clock is to be granted or not ?
(iii) If a person like the petitioner makes out a specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, would the State be still justified in refusing to grant armed police protection to him even qua that particular occasion or place.
4. In order to appreciate the contentions raised before us, it is necessary to set out, in brief, the pleadings. In the petition which is filed under Article 226, invoking the provisions of Articles 14, 19(1)(d) and 21 of the Constitution, as also the provisions of the Bombay Police Act, 1951, the reliefs prayed for are as under:-
21. The Petitioner, therefore, prays that:
(A) This Hon'ble Court be pleased to issue a writ of mandamus under Article 226 of the Constitution of India or any other appropriate writ and/or direction in the nature of writ of mandamus, directing the Respondents to grant police protection to the petitioner at his own cost and further direct them to keep the police vigil at the places mentioned by him in his letter dated 21st December, 1996 at Exh. I. (B) Pending the hearing and final disposal of the present petition, the Respondents be directed to provide police protection to the petitioner forthwith on such terms and conditions as this Hon'ble Court deems fit and proper in the circumstances of the case.
(C) Pass any such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case.
It would be evident from the above that, the relief in terms of prayer (A) is in two parts:-
(i) issuance of a Writ of Mandamus directing the respondents to grant police protection to the petitioner at his own cost;
(ii) further direction to the respondents to keep police vigil at the place mentioned by the petitioner in his letter dt. 21st December, 1996 - Exh. "I" to the Petition.
Turning to Exhibit "I" dated 21st December, 1996, the places mentioned are:-
(i) The main entrance of Dagadi Chawl. Byculla, Mumbai where the petitioner resides;
(ii) The Shankar - Parvati Temple near the Dagadi Chawl where the petitioner resides; and
(iii) At all places such as the Sessions Courts, the Magistrate's Courts, the residence of the petitioner's relatives, his native place and the religious places he visits.
In short, the petitioner demands armed police protection at all the above mentioned places at all times. Prayer (B) is an elaboration of prayer (A).
5. The Petitioner, who claims to be a law-abiding citizen, was involved in as many as 30 criminal cases. The details of 18 cases (out of 30) are set out in the annexure to the affidavit dated 16th September, 1999 filed by Dhanraj Vanjari, Inspector of Police, Agripada Police Station, Mumbai. It will be convenient to mention the details of the 18 cases as under:-
__________________________________________________________________________________ Sr. Police Station C.R.NO. Sec. of law (P.T. = No Pending Trial)
1. Agripada 86/87 143 to 249, 307 of the I.P.C. P.T.
2. D.C.B., C.I.D. 95/87 3, 25 of the Arms Act. P.T.
3. Gamdevi 247/87 302, 114 of the I.P.C. P.T.
4. Mahim 443/87 363, 307, 114 of the I.P.C. P.T.
5. Byculla 609/88 302, 34 of the I.P.C. P.T.
6. D.C.B., C.I.D. 7/89 386, 506(2) of the I.P.C. P.T.
7. D.C.B., C.I.D. 32/89 3, 25 of the Arms Act. P.T.
8. Chembur 95/89 143 to 149, 307 of the I.P.C. P.T.
9. M.R.A./D.C.B. 392/92 387,386,384,502(2) P.T. ______ 159/92 120(b) P.T. ______
10. D.N. Nagar 312/93 302,120(b),34 of the I.P.C. P.T. 92/93 r/w 3,25 of the Arms Act
11. D.B. Marg 82/94 302, 34 of the I.P.C. P.T.
12. Agripada 42/97 216(A) of the I.P.C. P.T.
13. Agripada 196/97 395, 397, 452, 341 P.T. 506(2) 34 I.P.C. r/w 3,25, 27 of the Arms Act.
14. Malbar Hill 18/98 302, 34,120(b) of the I.P.C. P.T. r/w 3,25,27 of the Arms Act.
15. Vartak Nagar 244/97 143, 386, 364, 342, P.T. Thane 506(2) of the I.P.C. r/w 25(1)(b)(a) of the Arms Act
16. Agripada 193/97 143 to 149, 324, 34 P.T. 506(2) of the I.P.C.
17. Bandra 578/96 342, 386, 34 of the I.P.C. P.T. D.C.B., C.I.D.
18. Manchar Pune 86/99 143, 147, 148, 149, U.I. 353, 332, 333, 341, 427, 504, 506 of the I.P.C.
(Under Investigation) __________________________________________________________________________________ Total cases registered against him - 30 As on today pending trial - 18 The cases actually pending trial are the first 17 in the Chart, the last being under investigation. A perusal of the Chart shows that some of the cases relate to offences punishable under Section 302 of the Indian Penal Code.
6. Apart from the above, in para 4 of the petition, there is a reference to Special Case No. 42 of 1991, in the Special Court at Mumbai under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short, T.A.D.A.). That case ended in acquittal on 27th September, 1993. It related to the murder of one Manoj Kulkarni. Yet another Special Case No. 51 of 1991, is referred to in para 5 of the Petition, which is stated to be pending in the Special Court, at Mumbai, under the provisions of the T.A.D.A. The petitioner was also involved in C.R. No. 113/94 of the Colaba Police Station, Mumbai, in respect of attempt on the life of one Ashwin Naik, who is stated to be the brother of dreaded gangster Amar Naik, who is supposed to have been shot dead in a police encounter. This case ended in acquittal on 7th September, 1996.
7. It is further stated in para 5 of the petition that the petitioner was also involved in the murder of one Ramesh More, a leader of the Kamgar Sena. He was arrested in Special Case No. 4 of 1995 in that behalf and the said trial is pending. This case relates to C.R. No. 92/1993 at the D.N. Nagar Police Station, Andheri, which is mentioned at Item 10 in the Chart above. It is further stated in para 5 of the petition that the petitioner is also implicated in Sessions Case No. 1062 of 1995, pending in the Sessions Court, at Mumbai, for the murder of one Babubhai Shah and the trial is pending. This Sessions Case No. 1062 of 1995 relates to Item 11 in the Chart above viz. C.R. No. 82/1994 of the D.B. Marg Police Station. These averments in the petition themselves show that the petitioner has been involved in several criminal cases where he has been charged with having committed serious offences, including the offence of murder. The averments in the petition do not cover all the cases in which the petitioner has been involved, the details of which are set out in the Chart.
8. It is then averred in para 6 of the petition that there are various gangs operating in the city of Mumbai such as, Dawood Ibrahim gang, Amar Naik gang. The respondents contend that the petitioner himself controls and operates the Arun Gavli gang, which is a gang rival to those led by Dawood Ibrahim and Amar Naik. The petitioner denies that he operates any gang and claims that he is a law-abiding citizen. In para 7 of the petition, there is a reference to the two orders passed by the Aurangabad Bench of this Court viz.
(i) Order dated 1st July, 1996, passed in Writ Petition No. 360 of 1996 where it was directed that the petitioner should be given due police protection when he is being transferred from one jail to another for the purpose of further investigation;
(ii) Order dated 7th August, 1996 in Writ Petition No. 318 of 1996 where it was directed that the State should give proper security to the petitioner while he was being taken out of Aurangabad Central Prison and lodged in another prison and while he was being transported from one place to another for the purpose of interrogation and brought back.
The petitioner has referred to his being granted bail in the cases pending against him.
9. The petitioner has then referred to the various representations made by him demanding police protection. There is a representation dated 30th October, 1996 made by his wife Smt. Asha Gavli and another representation of the same date made by his mother Smt. Laxmibai Gavli. Yet another representation was made by the petitioner's wife to the Governor of Maharashtra on 14th October, 1996 and she was informed on 2.11.1996 that the representation was forwarded to the Commissioner of Police, Mumbai for appropriate action. On 19.12.1996 and 21.12.1996 the petitioner made two separate representations to the Commissioner of Police, Mumbai giving different addresses, (different rooms of his residence in the Dagadi Chawl and claimed police protection. Since there was no response to these two representations, the petition has been filed claiming the reliefs as mentioned above,
10. This petition was admitted on 4.2.1997 and the limited interim order that was granted was that, as and when the petitioner is required to attend the Court proceedings in Mumbai, he will be accorded adequate police protection to enable him to attend the Court proceedings.
11. The first affidavit-in-reply dated 31st January, 1997, is by Assistant Commissioner of Police (A.C.P.), Crime Branch, C.I.D., Mumbai, Shri R.T. Kulkarni. In his affidavit A.C.P. Kulkarni states that the petitioner is indulging in several illegal activities and has an highly objectionable criminal record. He is involved in offences like murder, illicit use of firearms, extortion. He is considered to be a don of the underworld and wants police protection only to cover his illegal activities which was not permissible in law. The affidavit states that no specific instance of a threat to the petitioner's life was made out and, on some general apprehension, no police protection could be granted to him. A.C.P. Kulkarni has then referred to the provisions of the Bombay Police Act, 1951 and the Bombay Police Manual Rules. Chapter V of the Bombay Police Act, 1951 deals with the special measures for maintenance of public order and safety of State. Section 47 falling in the said chapter deals with employment of additional police on application of a person. This is for the purpose of keeping peace, to preserve law and order or to enforce any of the provisions of any Act in respect of any member, class or classes of offence or to perform any other police duty at any place. It is contended that the petitioner is not entitled to any such protection under Section 47 of the Bombay Police Act.
12. A.C.P. Kulkarni further states in his affidavit that even the protection granted under Rule 482 of the Bombay Police Manual Rules was not available to the petitioner since Rule 482 contemplates supply of guards or escort to private individuals or bodies if police are needed by private persons to guard their properties or to keep peace. He then sets out the details of protection to be granted to the dignitaries and public servants holding high offices where the Central Government has, by issuing guidelines, categorised the types of protection such as Category "X", "Y", "Z" or "Z+". Obviously, the protection contemplated under such categories is not the protection which the petitioner can seek. Therefore, the affidavit states that he is not entitled to claim any protection, either under the provisions of the Bombay Police Act, the Bombay Police Manual Rules or the guidelines framed for the protection of dignitaries. Then, it is stated that the petitioner is in fact indulging in various offences. He has not made out a specific case of apprehension of an actual threat to his life which could be considered on its merits. The petitioner is indulging in illegal activities to gain an upper hand in the underworld. A.C.P. Kulkarni states that the petitioner is not at all entitled to seek any police protection. Police protection cannot be granted to one gang operating in the underworld to secure an upper hand over the rival gang. It is then stated that petitioner's application dated 18/19.12.1996, which was addressed to the Police Commissioner was considered carefully and his request to provide police protection was declined. The affidavit concludes with a reiteration of the fact that the petitioner, who is indulging in illegal activities, cannot be protected by granting armed police protection and hence, is not entitled to any relief.
13. A rejoinder has been filed by the petitioner's wife. She has reiterated the contention raised in the petition that the members of a rival gang viz. Dawood Ibrahim gang are keeping a watch on the petitioner at the Dagadi Chawl and the petitioner apprehends serious threat to his life from Dawood Ibrahim's gang. Smt. Gavli has placed reliance on the provisions of Section 47 of the Bombay Police Act and stated that, independently of the petitioner's right under the said provision, he is entitled to police protection "as contemplated by the provisions of Article 21 read with Article 19 of the Constitution." Then, in para 7 of the rejoinder, Smt. Gavli has narrated certain instances of persons with criminal background having been granted police protection. They include, two members of the Legislative Assembly, a Municipal Corporator, two political activists as also one political activist in whose case police protection was granted as per the directions of the Home Department, Union of India. We will deal with this contention, later, because an argument is advanced that, independently of the alleged right of the petitioner under Article 21, there is hostile discrimination against him in as much as, even criminals similarly situated, have been granted police protection, whereas the petitioner has been denied the same. The rejoinder denies other allegations made in the affidavit of A.C.P. Kulkarni and Smt. Gavli reiterates that the petitioner is a peace-loving citizen and is not involved in any illegal activities. The rejoinder concludes with the reiteration of the petitioner's right under Articles 14, 19 and 21 of the Constitution and Section 47 of the Bombay Police Act.
14. There are further affidavits filed; one by the petitioner himself on 7th December, 1998 and the other by his wife on 23rd July, 1999. But it is not necessary to refer to the same since there is a repetition of the averments made in the earlier pleadings. We must, however, refer to the affidavit dated 4.8.1999 filed by Sub-Inspector Ashok Chavan. He refers to the order of externment dated February 20, 1999 passed against the petitioner under the Bombay Police Act, 1951 externing him beyond the limits of Mumbai and Thane Districts. This resulted in his settling down at village Vadgaon Peer, Taluka Ambegaon, District Pune. He made a complaint to the concerned police station that he needed police protection since he apprehended danger to his life from the underworld gangsters such as Shakeel, Chhota Rajan, Dawood Ibrahim and others. On 7.7.1999 the Manchar police station issued a notice to the petitioner under Section 149 of the Code of Criminal Procedure for the purpose of maintaining law and order. It was observed that various persons were visiting the petitioner and he was organising rallies which were likely to disturb law and order. He was, therefore, called upon to desist from indulging in such activities which would result in disturbance of law and order. The last affidavit is by Inspector Ramesh Ghadwale, which refers to the charge of discrimination levelled in the rejoinder filed by Smt. Gavli where, as many as 8 instances were cited where alleged criminals are said to have been granted police protection. This averment is to be found in para 7 of the Rejoinder dated 25.2.1997 filed by Smt. Gavli. In para 4 of his affidavit, Ramesh Ghadawale has set out the grounds on which, in each of those 8 cases, police protection was either granted or not granted and the reasons there for. We will deal with the details of these when we consider the argument based on Article 14 of the Constitution.
16. Coming to the first question of the alleged right flowing from Article 21, it has to be borne in mind that the petition has been filed under Article 226 of the Constitution. Article 226 empowers the High Court to issue certain writs, directions, orders, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Clause (1) of Article 226 reads as under:-
(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part HI and for any other purpose.
(Emphasis supplied) Thus, it will be clear that the power of the High Court to issue writs under Article 226 can be exercised for two purposes viz. (a) for enforcement of fundamental rights conferred by Part III; and (b) for any other purpose viz. legal rights other than the fundamental rights conferred by Part III.
17. Both the learned Counsel, Shri Adik and Shri Gupte have confined their arguments, and in our opinion rightly so, to a fundamental right flowing from Article 21 of the Constitution. Thus, it is not necessary for us to consider whether the petitioner has any other legal right, apart from the fundamental right conferred by Part III of the Constitution. If this Court comes to the conclusion that the petitioner's fundamental right has been violated, it may issue a writ under Article 226. Since the petitioner has confined his argument to a right flowing from the mandate of Article 21, we find it necessary to quote Article 21 as follows:-
21. Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 19(1) is couched in positive language, as far as the citizens are concerned viz. "All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practise any profession, or to carry on any occupation, trade or business. Article 21 is available to any person. He need not to be a citizen of this country. In order to constitute "deprivation", within the meaning of Article 21, there must be some direct, overt and tangible act threatening the fullness of the life of a person or a member of the community, as distinguished from a vague or remote act threatening the quality of life of people at large. It is well-settled that the right to life enshrined in Article 21 means something more than mere survival. It includes the right to live with human dignity. It includes all aspects of life which go to make a man's life meaningful, complete and worth living.
18. As held by the Apex Court in Smt. Maneka Gandhi v. Union of India Article 21 protects both life as well as personal liberty.-The words "personal liberty" in Article 21 primarily mean freedom from physical restrung of a person by incarceration or otherwise. The Apex Court has, in the case of Unni Krishnan, J. P and Ors. v. State of Andhra Pradesh and Ors. (to which we will make a detailed reference later), enumerated the various rights which fall under Article 21 since the expression "personal liberty" is of the widest amplitude. Bearing in mind the approach of the Apex Court in interpreting the mandate of Article 21, the question still remains whether Article 21 can be so construed that a person like the petitioner, can insist that the State must afford him armed police protection round the clock.
19. It seems to us that the language of Article 21, which appears in Part III of the Constitution, clearly shows that the Article was intended to afford protection to life and personal liberty against State action and not against violation thereof by private individuals. In this behalf, we may refer to the decision of a Constitution Bench in P.D. Shamdasani v. The Central Bank of India Ltd. . The question arose before the Apex Court with reference to the transfer of shares by the petitioner Shamdasani who approached the Court under Article 32 of the Constitution. The right claimed was under Article 19(1)(f) and Article 31(1), as they stood originally. In para 3 of the Judgment the Apex Court observed that neither Article 19(1)(f) nor Article 31(1), on its true construction, was intended to prevent wrongful individual acts or to provide protection against merely private conduct. It was further observed that the language and the structure of Article 19 and its setting in Part HI of the Constitution clearly show that the article was intended to protect those freedoms against State action, other than in a legitimate exercise of its power to regulate private rights in public interest. The Court then concluded that violation of rights of property by individuals was not within the purview of the article. After so observing, the Court proceeded to observe in para 5 that the declaration of the fundamental right of private property under Article 31(1) was in the same negative form in which Article 21 declared the fundamental right to life and liberty. Though there was no express reference to the State under Article 21, the Court observed that it could not, on that account, be suggested that Article 21 was intended to afford protection to life and personal liberty against violation by private individuals. The words "except by procedure established by law" appearing in Article 21 clearly refer to a mandate against the State and the protection is against State action. It may be convenient to reproduce para 3 and the relevant portion in para 5 of the Judgment in Shamdasani's case as under:-
3. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Article 19(1)(f) nor Article 31(1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by Clause (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property" subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in Clauses (2) to (6). The language and structure of Article 19 and its setting in Part HI of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.
5....
Even assuming that Clause (1) has to be read and construed apart from Clause (2), it is clear that it is a declaration of the fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty. There is no express reference to the State in Article 21. But could it be suggested on that account that, that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly exclude such a suggestion.
(Emphasis supplied)
20. The view expressed in Shamdasani's case was reiterated in Smt Vidya Verma, through next friend R.V.S. Mani v. Dr. Shiv Narain Verma of the Judgment, the Apex Court made it clear that violation of rights of property by a private individual was not within the purview of either Article 19(1)(f) or Article 31(1) (as they originally stood). It was, therefore, held that a person whose rights of property are infringed by private individual must seek his remedy under ordinary law and not under Article 32. The Court then referred to the wording of Article 21 and made it clear that though there was no express reference to the State in the mandate of Article 21, it could not, on that account, be suggested that Article 21 was intended to afford protection to life and personal liberty against its violation by private individuals.
21. We are referring to these authorities at the outset since what the petitioner contends is that, having regard to the criminal background alleged against him, he apprehends danger to his life from the rival gangs.
We have referred earlier to the fact that, there are as many as 30 criminal cases registered against the petitioner out of which, 17 are pending trial as mentioned in the Chart in para 5. There is a specific reference, to certain criminal gangs operating in this city such as those led by Dawood Ibrahim or Amar Naik and what the petitioner apprehends is danger to his life from persons belonging to rival gangs since, it is alleged, that he is also involved in various crimes. The respondents contend that the petitioner himself controls and operates the Arun Gavli gang which is a rival to the other gangs mentioned above. The petitioner, therefore, claims armed police protection round the clock as if he has such a right under Article 21 and there is a corresponding duty on the State to provide him armed police protection round the clock.
22. We may in this behalf refer to another Constitution Bench decision in R.M.D. Chamarbaugwalla and Anr. v. Union of India where the question arose whether the right under Article 19(1)(g) could be claimed for carrying on the trading activities in the nature of gambling competitions. The Apex Court was considering the validity of the Prize Competition Act, 1955. In para 4 of the Judgment the Court held that "trade and commerce protected by Article 19(1)(g) and Article 301 are only those activities which could be regarded as lawful trading activities; that gambling is not trade but 'res extra commercium', and that it does not fall within the purview of those Articles". It was held that as regards gambling competitions, the petitioner could not claim protection under Article 19(1)(g).
23. Bearing in mind the ratio of the above decisions, we will consider whether the petitioner has made out a case of a right under Article 21. It is well-settled that right is an interest recognised and protected by moral or legal rules. It is an interest, the violation of which would be a legal wrong. Respect for such interest would be a Tegal duty. In order that the interest becomes a subject of the legal right, it has to have, not merely legal protection, but also legal recognition. The elements of a legal right are that a right is vested in a person and is available against a person, including the State, which is under a corresponding obligation and duty to respect that right and has to act or refrain from acting in any manner so as to prevent the violation of that right. It is only if there is such a legal right vested in a person, that he can seek protection against the State as is sought to be claimed by the petitioner.
24. While considering the cases, to which our attention has been invited by both the learned Counsel, Shri Adik and Shri Gupte, we must bear in mind the distinction between the case of a person who is in the custody of the State pending investigaiiton into a crime, or an accused pending trial in a Court of law or a convict who has been sentenced to a term of imprisonment, as against a person like the petitioner who is free citizen and who is alleged to be indulging in criminal activities and is involved in a series of criminal offences. He is claiming protection as a result of a threat which emerges as a consequence of his indulging in crime. We will also have to bear in mind the sophisticated manner in which crimes are planned and committed in modern days with the help of electronics and sophisticated telecommunication system and the result of granting protection to a criminal and the effect thereof on the society at large.
25. Great emphasis was led by Mr. Adik and Mr. Gupte on the two decisions of the Apex Court in Sunil Batra's cases - (i) Snail Batra v. Delhi Administration and Ors. and (ii) Sunil Batra v. Delhi Administration . In Sunil Batra (i), the question arose with reference to two petitioners Sunil Batra and Charles Shobhraj, one was an Indian and the other was a French and the challenge was to the distressing disablement by bar fetters. It was in this context that the Apex Court observed in para 53 of the Judgment, that Part III of the Constitution does not part company with the prisoner at the gates of the prison and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. The Apex Court upheld the rights which the prisoners had even while serving a long term of imprisonment. It has to be remembered that the prisoners were in the custody of the State, which was ignoring the mandate of Article 21
26. In Sunil Batra (ii), the question was of the rights of the prisoners in the light of torture practised upon another prisoner viz. Prem Chand by a jail warder Maggar Singh as a means to extract money from the victim through his visiting relations. It was Sunil Batra, who approached the Apex Court. In para 54 of the Judgment, the Court held that there was no reason why visits by the family members and friends should be unreasonably restricted. It was directed that subject to conditions of security and discipline, visits may be allowed by family members, close friends and legitimate callers. This was a part of the prisoner's kit of rights and had to be respected. It is obvious that the said observations in none of the two decisions in Sunil Batra's cases have any application whatsoever to the facts of the present case. The petitioner is not in the custody of the State; he is not in jail. He is a free citizen and the pleadings show that he is involved in serious crimes. It is because he is involved in serious crimes that he apprehends danger to his life from rival gangs. It is in these set of facts that he wants the State to protect him by giving armed police protection round the clock.
27. Our attention was then invited to the decision in Smt. Maneka Gandhi v. Union of India to show that the words "personal liberty" appearing in Article 21 must be given the widest meaning and would include everything which goes to make life meaningful. No one can dispute that proposition, but it must be remembered that what was being agitated was the right to have a passport to go abroad and the passport was impounded without following the procedure of law. It was in this context that the Apex Court construed the meaning of the words "personal liberty" appearing in Article 21. We do not think that the ratio of the decision in Maneka Gandhi's case can support the petitioner's case on the first question viz. getting armed power protection round the clock.
28. Realize was also placed on the decision in Francis Coralie Mullin v. Adminisuator Union Territory of Delhi and Ors. . This was a case of detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the question was whether the detenu's right under Article 21 included a right to consult a legal adviser and to meet the members of his family. Referring to its earlier Judgments, the Apex Court held that the right to life guaranteed under Article 21 includes the right to live with human dignity and all that goes with it viz. the bare necessities of life such as adequate nutrition, clothing and shelter, facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. It was, therefore, held that any form of torture or cruel inhuman or degrading treatment to even a detenu would be offensive to human dignity and constitute an inroad into his right to live and would be prohibited by Article 21, unless it is in accordance with the procedure prescribed by law. Obviously, no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness. Such a law would plainly be unconstitutional and void being hit by the provisions of Articles 14 and 21. The relevant observations are to be found in para 8. We do not think that the ratio of the above decision in Francis' case can have any application to the question raised before us.
29. Both the learned Counsel, Mr. Adik and Mr. Gupte then placed heavy reliance on two recent decisions of the Apex Court in support of their contention that the petitioner has a right under Article 21 to insist that the State must afford him armed police protection round the clock. The two cases are (i) Unnikrishnan J.P. and Ors. v. State of Andhra Pradesh and (ii) The National Human Rights Commission v. The State of Arunachal Pradesh . Unnikrishnan's was a case where the Apex Court was considering the question of certain medical colleges charging capitation fees for admission. The question arose whether the right to receive education was a fundamental right guaranteed by the Constitution. The Apex Court was also required to consider the question whether the private managements had the fundamental right to establish an educational institution under Article 19(1)(g). It was in this context that the Court considered the provisions of Article 21. The Court referred to the earlier decision in Maneka Gandhi's case and other cases and observed that there were several unenumerated rights which fell within the span of Article 21 since the words "personal liberty" were of the widest amplitude. What was emphasised before us by both the learned Counsel was the observations in paras 29 and 30 of the Judgment where the Apex Court enumerated the various rights flowing from Article 21. We find it convenient to reproduce them as under:-
29. This Court has held that several unenumerated rights fall within Article 21 since personal liberty is of widest amplitude.
30. The following rights are held to be covered under Article 21:
1. The right to go abroad Satiuanl Singh Sawhney v. D. Ramaruthaam. A.O.O., New Delhi.
2. The right to privacy. Gobind v. State of M.P. In this case reliance was placed on the American decision in Griswold v. Connecticut.
3. The right against solitary confinement. Sunil Batra v. Delhi Administration.
4. The right against bar fetters. Charles Sobrqj v. Supdt. Centraljail.
5. The right to legal aid. M.H. Hoskot v. State of Maharashtra.
6. The right to speedy trial Hussainara Khatoon v. Home Secretary, State of Bihar.
7. The right against handcuffing. Prem Shankar Shukla v. Delhi Administration.
8. The right against delayed execution. T.V. Vatheeswaran v. State of T.N.
9. The right against custodial violence. Sheela Barse v. State of Maharashtra.
10. The right against public handing. A.G. of India v. Lachma Devi.
11. Doctor's assistance. Paramanand Katra v. Union of India.
12. Shelter. Shantistar Builders v. N.K. Totame.
30. In the case of National Human Rights Commission, (for short, N.H.R.C.) v. State of Arunachal Pradesh (supra), the Apex Court was dealing with the obligation of the State to protect the life and liberty of non-citizens also. The question was of rehabilitation of the Chakma refugees, who were settled in the State of Arunachal Pradesh. They were asked by a group of persons (All Arunachal Pradesh Students Union) to leave the State. The N.H.R.C. filed a petition under Article 32 to the Apex Court seeking to enforce the right of about 65000 Chakma/Hajong tribals. The Chakmas were formerly from the erstwhile East Pakistan (now Bangladesh) and were displaced by Kaptai Hydel Power Project in 1964. The question of grant of citizenship to the Chakmas was pending the consideration of the Central Government. Since the Chakma refugees apprehended their forcible expulsion from the State of Arunachal Pradesh, the N.H.R.C. approached the Apex Court contending that the right of the Chakmas guaranteed under Article 21 was violated. The first respondent State of Arunachal Pradesh contended that the State enjoyed a special status under the Constitution and having regard to its ethnicity, even the laws and regulations applicable during the British regime continued to apply. It was contended that the settlement of Chakmas in large numbers in Arunachal Pradesh would destroy its ethnic balance and its cultural identity and the special provision made in the Constitution for the State of Arunachal Pradesh would be set at naught. It was in this context that the Apex Court upheld the right of the refugees under Article 21 of the Constitution. The question as to whether the persons indulging in crimes claiming armed police protection round the clock did not arise for consideration of the Apex Court in the case of Chakma refugees. It was in the light of the pleadings of the N.H.R.C. and the State of Arunachal Pradesh that the Apex Court observed that our country was governed by rule of law and every person was entitled to equality before law and equal protection of laws. Thus, the State was bound to protect the life and liberty of every human being, be he a citizen or otherwise. No Stale Government can tolerate threats by one group of persons to another group of persons. H was in this context that the Apex Court gave certain directions in the operative part of the order protecting the Chakma refugees from forcible expulsion from the State of Arunachal Pradesh. We do not think that the ratio of either of the two decisions; Unnikrishnan J.P.'s case and Chakma refugees' case can apply to the facts of the case before us. The facts of Arun Gavli's case are gross, as indicated earlier.
31. Sbri Sawant, the learned Advocate General, has on the other hand, invited our attention to certain decisions of the Apex Court to contend that there is no such righl available to the petitioner, as is claimed before us. In para 19, we have already referred to the case of P.D. Sha.mdasa.nl AIR 1952 SC 59 (supra) and reproduced the observation of the Apex Court. Relying upon the said observations, Shri Sawant contended that criminals like Arun Gavli and Ramesh Sharma can not insist that the State must give them armed police protection round the clock. He contends, and in our opinion rightly, that granting of armed police protection to such criminals round the clock would be putting a premium on their criminal activities and would create a very odd situation in the society. Wherever these criminals go, they would be safely protected by armed police round the clock. This may protect not only their life and personal liberty, but would encourage and facilitate their indulging in crime. As indicated earlier, with the modern telecommunication systems being available to persons like the petitioner, we are of the view that granting armed police protection round the clock to the petitioner, would encourage and facilitate his indulging in crimes. For instance, if armed police guard is provided to the petitioner at his residence round the clock, nothing prevents him from contacting his 'friends' on cellular phones without being disturbed or threatened by his enemies. What he apprehends is the threat to his life and personal liberty from his enemies and not by any State action which alone is forbidden by the mandate of Article 21. It is clear to vis from the observations of the Apex Court in P.D. Shamdasani's case that what Article 21 protects is only invasion of a person's right to life and personal liberty by the State. If there is a threat to the petitioner's right to life and personal liberty by a rival criminal, it is difficult to spell out a right under Article 21 in favour of the petitioner to the extent that the State must provide him with armed police guard round the clock. As mentioned in para 20 above, the ratio of the decision in P.D. Shamdasani's case has been specifically approved by the Apex Court in Vidya Sharma's case in .
32. Our attention was invited by the learned Advocate General to the decisions in - (i) Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal and Ors. (ii) State of Punjab and Anr. v. Suraj Parkash Kapur, etc and (iii) State of Orissa v. Ram Chandra Dev and Ors. . We will refer to these cases in brief to show that a person like the petitioner cannot approach this Court under Article 226 contending that since the apprehends threat to his life from a rival criminal gang, it is obligatory on the State to afford him armed police protection round the clock.
33. In the case of Calcutta Gas Company, the Apex Court discussed the powers of the High Court under Article 226 and made it clear that though Article 226 did not prescribe in terms the classes of persons entitled to apply there under, it was implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. As we have indicated at the outset, Article 226 confers wide powers on the High Courts to issue directions and writs in the nature specified therein for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. Relying upon the ratio of the decision in Calcutta Cos Company's case and, in particular, the observations in para 5 of the Judgment, the learned Advocate-General rightly contended that the peti tioner has neither any right conferred by Part III of the Constitution nor by any other statute and hence, the remedy under Article 226 was wholly misconceived.
34. In State of Punjab v. Swaj Prakash Kapur (supra), it was reiterated that the existence of a right and the infringement thereof was the very foundation of the exercise of jurisdiction of the High Court under Article 226. The relevant observations are to be found in paras of the Judgment, at page 508, where it was observed that the right that can be enforced under Article 226 must, ordinarily, be a personal or individual right of the petitioner. It may be a right conferred by Part III of the Constitution or by an% other statute. But there must be a legal right, of which infringement is pointed out.
35. Again, in State of Orissa v. Ram Chandra Dev's case (supra), the Apex Court made it clear that under Article 226, the jurisdiction of the High Court was undoubtedly very wide. Appropriate writs could be issued by the High Court under the said article even for the purposes other than the enforcement of fundamental rights and, in a sense, the party who invokes the special jurisdiction of the High Court under Article 226 is not confined to a case of illegal invasion of his fundamental rights alone. Nevertheless, it is held in para 8 of the Judgment, that though jurisdiction of the High Court under Article 226 was very wide, the concluding words of the article clearly indicated that before a writ or any appropriate order could be issued in favour of a party, it must be established that the party had a right and the said right was illegally invaded or threatened.
36. In short, the existence of aright is the foundation of a petition under Article 226. We find substance in the contention of Shri Sawant that persons leading a life of crime and those involved in a series of serious offences like either Arun Gavli or Ramesh Sharma cannot claim any right, either fundamental under Part III of the Constitution, or even an ordinary legal right under any other statute so as to insist that the State must grant them armed police protection round the clock. As stated at the outset, both Arun Gavli and Ramesh Sharma have confined their claim under Article 21 of the Constitution. They have put it on the pedestal of a fundamental right flowing from Artticle 21. It is not possible to accept their claim.
37. We must, at this stage, refer to two decisions of this Court where the same question came up for consideration, viz. (i) Jitendra Suresh Dabholkar v. State of Maharashtra and Ors. Criminal Writ Petition No. 695 of 1997, decided on 28.8.1997 by a Division Bench (Vishnu Sahai and Chandrashekhar Das. JJ.); and (ii) Allam Basling Bala @ Raj v. State of Maharashtra and Ors. Criminal Writ Petition No. 157 of 1998, decided on 11th January, 1999 by a Bench, to which one of us is a party (N. Arumugham & Smt. R.P. Desai, JJ). In the case of Jitendra Dabholkar, the petition was under Article 226 of the Constitution and the claim was for a writ of Mandamus directing the State to provide police protection to the petitioner throughout day and night. The pleadings in the case disclose that the concerned authorities reviewed the threat perception to the petitioner and depending upon the threat perception occasional police protection was granted to him. Question, however, which was agitated before this Court was that Jitendra Dabholkar was entitled to armed police protection round the clock as is the claim made by Arun Gavli and Ramesh Sharma before us. In para 3 of the Judgment this Court held that there was no legal obligation cast by any statute making it obligatory for the respondent State to give such a police protection to the petitioner. In this view of the matter, the petition was dismissed.
38. In the case of Allam Basling Bala @ Raj, decided by a Bench to which Smt. R.P. Desai is a party, the petitioner claimed police protection at his own cost on the ground that he apprehended threat to his life in the matter of construction on a piece of land. In the affidavit filed in this Court it was alleged that the petitioner had a serious criminal record against him and there were various criminal cases registered, which were pending trial. The offences were under the Indian Penal Code. The petitioner was also externed. A reference was made to the Circular dated 9th August, 1990, as amended on 12th May, 1997, which laid down the guidelines for deciding the question of grant of police protection and the extent and manner thereof. In view of the same, this Court carne to the conclusion that the petitioner was not entitled to any relief under Article 226.
39. On the extent of the right under Article 21, we may make a reference to two more decisions of the Apex Court viz. (i) Kharak Singh v. State of U.P. and Ors. and (ii) Govind v. State of Madhya Pradesh and Anr. . In Kharak Singh's case, the Apex Court was considering a challenge to the validity of Regulation 236 of the U.P. Police Regulations. The contention was that domiciliary visits by police authorities to a person's residence constituted infringement of the freedom guaranteed to him under Article 19(1)(d) and 21 of the Constitution. The majority judgment of the four learned Judges held that in respect of the provision contained in Clause (a) of Regulation 236 of the U.P. Police Regulations viz. secret picketing of the houses of suspects, there was no substance in the submission that if the suspect does come to know that his house is being subjected to picketing, that would affect his inclination to move about or that in any event it would prejudice his personal liberty. In dealing with the fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement, which is both direct as well as tangible and it could not be that under these freedoms the Constitution makers intended to protect or protected mere personal sensitiveness. These observations are to be found in para 11 of the Judgment. However, in respect of Clause (b) of Regulation 236, it was held by the Apex Court that the intrusion into the residence of a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, does not constitute a violation of the freedom guaranteed by Article 19(1)(d) as it is manifest that by the knock at the door, or by the man being roused from his sleep, his locomation is not impeded or prejudiced in any manner. But they are a deprivation of the personal liberty guaranteed by Article 21, as an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were, the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very concept of civilisation. It was further held that freedom guaranteed by Article 19(1)(d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomation. In para 15 of the Judgment, the Apex Court questioned the wording of Article 21 of the Constitution, as contrasted with the 4th and 14th Amendment in the U.S. Constitution and observed that in Article 21 of our Constitution as contrasted with the 4th and 14th Amendment in the U.S., the word "liberty" is qualified by the word "personal" and, therefore, its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those elements or incidents of "liberty" like freedom of speech, or freedom of movement etc. already dealt with in Article 19(1) and the "liberty" guaranteed by Article 21 and particularly in the context of the difference between the permissible restrains or restrictions which might be imposed by Sub-clauses (2) to (6) of the Article on the several species of liberty dealt with in the several clauses of Article 19(1). It was concluded in para 17 of the Judgment that while Article 19(1) deals with particular species or attributes of freedom, "personal liberty" in Article 21 takes in and comprises the residue.
40. The decision in Kharak Singh's case was considered in Gouind's case AIR 1975 SC 1378 and it was observed in para 31 of the Judgment that, depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said that surveillance by domicilliary visits would always be an unreasonable restriction upon the right of privacy. It was further held that assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. As regulation 856 of the M.P. Police Regulations had the force of law, it could not be said that the fundamental right of the petitioner under Article 21 had been violated by the said provisions dealing with surveillance.
41. The above two decisions in Kharak Singh's case and Gouind's case were recently considered by the Apex Court in Mr. 'X' v. Hospital 'Z' (1998) 8 SCC 296 : 1998 AIR S.C.W. 3662 : 1998 (5) J.T. 626 : 1998 (6) Scale 230. The appellant's blood was to be transfused to another and, therefore, sample thereof was tested at the respondent hospital and he was found to be H.I.V. (+). On account of disclosure of this fact, the appellant's proposed marriage to one 'A', which had been accepted, was called off. Moreover, he was severely criticized and was also ostracised by the community. The appellant approached the National Consumer Disputes Redressal Commission for damages against the respondent on the ground that the information required, under medical ethics, to be kept secret was disclosed illegally and that, therefore, the respondent was liable to pay damages to the appellant. The Commission dismissed the petition on the ground that the appellant could seek his remedy in the Civil Court. Before the Apex Court, the appellant contended that the principle of "duty of care" applicable to persons in medical profession included the duty to maintain confidentiality and that the said duty had a correlative right vested in the patient that whatever came to the knowledge of the doctor would not be divulged. The appellant added that for violating that duty as well as for violating the appellant's right to privacy, the respondent was liable for damages to the appellant. Rejecting the appellant's contentions, the Apex Court held that, it was true that in the doctor-patient relationship, the most important aspect was the doctor's duty of maintaining secrecy. A doctor cannot disclose to a person any information regarding the patient which he has gathered in the course of treatment nor can the doctor disclose to any one else the mode of treatment or the advice given by him to the patient. It is the basic principle of jurisprudence that every right has a correlative duty arid every duty has a correlative right. But the rule is not absolute. It is subject to certain exceptions in the sense that a person may have a right but there may not be a correlative duty. The case of 'X' fell within the exception. In para 21 of the Judgment, the Apex Court referred to the right to privacy as culled out of the provisions of Article 21 and other provisions of the Constitution relating to Fundamental Rights read with the Directive Principles of State Policy. It referred to the decisions (supra) in Kharak Sinyh's case and Gouind' case. A reference was then made to the decision in R. Rqjagopal v. State of T.N. . and it was observed in para 26 of the Judgment that as one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others. This, in our view, assumes importance in the background of the petitioner's case where he claims armed police protection round the clock. It was again reiterated in para 28 of the Judgment that though the right to privacy is an essential component of the right to life envisaged by Article 21, the right was not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. In para 44 of the Judgment, the Apex Court concluded that where there is a clash of two fundamental rights, as was in the case of 'X' before the Apex Court viz. the appellant's right to privacy as part of right to life and Ms. Y's right to lead a healthy life which was her fundamental right under Article 21, the right which would advance the public morality or public interest would alone be enforced through the process of Court, the reason being that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as Court room, but they have to be sensitive, "in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day." In the facts of the case, the Apex Court concluded that "AIDS" was the product of undisciplined sexual impulse. Sex with persons suffering from "AIDS" or possibility thereof has to be avoided as otherwise they would infect or communicate the dreadful disease to others. It was, therefore, held that the Court cannot assist such a person viz. 'X' to achieve that object. In this view of the matter, the appeal filed by 'X' was dismissed.
42. Applying the ratio of the above decision to the pleadings of the two cases, one of Arun Gavli and the other of Ramesh Sharma, there is no doubt in our minds that they are involved in a number of serious crimes; the trials arc pending and they belong to a rival criminal gang. Though Arun Gavli denies this allegation, Ramesh Sharma specifically admits his being involved with one gang or the other. The affidavit-in-reply by A.C.P. Kulkarni in Arun Gavli's ease makes it abundantly clear that he is operating a rival criminal gang. We have broadly indicated the modus operandi of the criminal gangs operating in this city in the present days of advance and sophisticated telecommunication systems. We have no hesitation in coming to the conclusion that, in the first place, the petitioner has no right at all flowing from Article 21, to claim that the State must afford armed police protection to him round the clock. Even assuming that the petitioner had any such right, if the authorities come to the conclusion that the armed police protection round the clock was likely to be misused to the detriment of the society at large and would be a cover to perpetuate criminal activities, they would undoubtedly be justified in refusing to grant armed police protection to the petitioner round the clock. At any rate, the question which we must consider, as was done by the Apex Court in the case of 'X' is whether this Court should grant assistance to the petitioner in a writ petition under Article 226, which can be only for the enforcement of the fundamental rights guaranteed under Part III or for enforcement of any other legal right. Our answer is clearly in the negative for the reasons aforesaid. In this view of the matter, we have no hesitation in corning to the conclusion that the protection of life and personal liberty guaranteed by Article 21 of the Constitution does not include a right in favour of persons like the petitioner to claim that the State must afford them armed police protection round the clock.
43. This conclusion is clearly supported by the ratio of the decision of the Apex Court in (i) Kharak Singh's case (Para 39 above), (ii) Com/id's case (Para 40 above) and (iii) 'X' u. Hospital 'Z' (Para 41 above). The view which we have taken while answering the first question in the negative is also consistent with the view taken by two Division Benches of this Court in (i) Jitendra Swesh Dabholkar's case (Para 37 above) and (ii) Allam Basling Bala's case (Para 38 above) with which we are in respectful agreement.
44. Coming to the second question, namely, if the petitioner has no right under Article 21 of the Constitution to claim that the State must afford him armed police protection round the clock, whether the State can, by an executive flat like the Circular dated 9th August, 1990, as amended on 12th May, 1997, distinguish between law abiding persons on the one hand and persons having criminal background on the other for the purpose of deciding as to whether armed police protection is to be granted to a person or not. This question assumes importance in the light of the affidavits in reply that are filed. In the said affidavits, reliance has been placed on the circular dated 9th August, 1990, laying down guidelines for deciding the extent and manner in which police protection is to be granted. The circular has been amended on 12th May, 1997. The petitioner's contention is that the guidelines which make a distinction between criminals or persons having criminal background as against other law abiding persons are hit by the mandate of Article 14, which reads as under:-
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
45. It is well settled that since the guarantee of equal protection embraces the entire realm of State action; it would extend not only when an individual is discriminated against in the matter of imposing liabilities upon him but also in the matter of granting privileges. We will refer to the guidelines in brief. The circular initially issued on 9th August, 1990 contains 9 guidelines; when translated, they are to the following effect :-The first guideline says that if the police receives information regarding threat to a person's life, they should give protection to him and commence necessary investigation in that behalf. After conducting necessary investigation/enquiry, they should decide the further action to be taken; as to whether the protection needs to be continued, strengthened or withdrawn. The second guideline says that, normally, one armed security officer and one armed security guard should be posted round the clock for the protection of a person who is under threats. The third guideline is that if a person has no criminal record against him, greater importance should be given to extend police protection to him and the motive behind such a request should be ignored. Guideline No. 4, as it originally stood, and as now substituted on 12th May, 1997, assumes importance for our purpose. Original guideline 4 was to the following effect:
If a person has criminal record against him, such a person invites threats to his life by reason of his own criminal activities. Normally, such a person is competent to protect himself. However, if it is found on enquiries that there is a genuine threat to his life, police should not deny protection.
This guideline was deleted and new guideline 4 was inserted on 12th May, 1997 which, in substance, reads as under:
Persons involved in criminal activities invite threats to their lives because of their own criminal activities. Normally such persons are competent to protect themselves. Therefore, if such persons having criminal record, demand police protection, it is not necessary to give them police protection; the reason being such persons can misuse the police protection for their own ulterior motive and for committing criminal acts.
46. Guideline 5 says that the police to be provided for protection should always be from the Headquarters instead of the police station; the reason being, man power is always needed at the police station for different purposes. Therefore when circumstances demand it is possible that the difficult work of providing police protection from the police station is likely to be ignored. Guideline 6 says that while taking final decision in the matter of grant of police protection, no importance should be given to the status of a person who demands police protection. Guideline 7 says that if a person demands police protection on the ground that he apprehends threats from a rival with criminal background, greater importance should be given to the grant of police protection in such a case. This will also enable the authorities to decide the extent of police protection to be provided. Guideline 8 says that if the rival of such a person has no criminal record against him, protection may be granted for a limited period. Guideline 9 says that if the person really apprehends threats to his life, police should not consult such a person on the extent to which protection is to be granted to him. Whether he likes it or not, wherever he goes, the police should accompany him. If he does not inform the police about his engagements in advance or if he does not abide by the instructions given to him by the police, he should be made to understand that because of such action of his, he is Inviting danger to his life and when he is so informed, a written record should be maintained to that effect.
47. It needs to be mentioned that the above circular has been issued in exercise of the executive powers of the State, which under Article 162 of the Constitution, extend to the matters with respect to which, the Legislature of the State has power to make laws. It is not disputed that under List II of Seventh Schedule, Entry 2 deals with "Police". The circular has been issued in the name of the Governor of the State since under Article 166(1). all executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
48. Dealing with the said circular dated 9th August, 1990 as amended on 12th May, 1997, the contention of both the learned Counsel, Shri Adik and Shri Gupte, is that, in the first place, there is no warrant for classifying persons with criminal background differently from rest of the members of the society. Both the learned Counsel challenged the validity of the newly inserted guideline 4 on the ground that it is ex facie discriminatory since it violates the mandate of equality before the law guaranteed by Article 14. Secondly, it was contended that despite deletion of original guideline No. 4 and its substitution by newly inserted guideline 4, guideline 7 will override the newly inserted guideline 4. We will now consider these two submissions.
49. It is necessary to bear in mind that the principle of equality does not mean that all the laws have universal application. Principle enshrined in Article 14 does not take away from the State power of classifying persons for legitimate purpose. Indeed, every classification is, in some degree, likely to produce some inequality. Mere production of Inequality is not enough to attract Article 14. Differential treatment does not, by Itself, constitute violation of Article 14. It denies equal protection only when there is no reasonable basis for the differentiation. It is well settled, and we will refer to a few decisions in that behalf, that if a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons outside that class. Legislation enacted for achieving a particular object or purpose need not be all embracing. It is for the Legislature to determine as to what category it would embrace within the scope of Legislation.
50. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational nexus or relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis; such as, geographical, or according to objects or classes or groups of persons or occupation or the like. What is necessary is that there must be nexus between the basis of classification and the object sought to be achieved.
51. We may in this behalf refer to the decision in the leading case of the State of West Bengal v. Anwar Ali Sarkar . The Constitution Bench was considering the validity of the West Bengal Special Courts Act, 1950 which was stated to be violative of the provisions of Article 14. The Act had constituted Special Courts and empowered the State Government to refer cases or offences or classes of cases or classes of offences to such Special Courts. At page 349 of the report, the Apex Court observed that equality before the law or the equal protection of laws did not mean identity or abstract symmetry of treatment. Distinctions have to be made for different classes and groups of persons and a rational or reasonable classification is permitted as otherwise it would be almost impossible to carry on the work of Government of any State or country. The Apex Court quoted the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson where it was observed as under:
We must remember that the machinery of G overnment could not work if it were not allowed a little play in its joints.
52. A reference was then made by the Apex Court to its earlier decision in the State of Bombay v. F.N. Balsara (1951) S.C.R. 682 : 1951 SC 318 : 1951 S.C.J. 478 : 1951 Cr. L.J. 1361 where Fazl Ali J. had distilled, in the form of seven principles, most of the useful observations of the Court in the Sholapur Mills case, viz. Chiranjit Lai Choudhary v. The Union of India . Here italicisted. Since we are considering the challenge to the circular dated 9th August, 1990 on the ground that guideline 4 thereof violates the guarantee of Article 14, we find it convenient to reproduce the said principles as under (at pages 350-51 of 1952 S.C.R.).
1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons', who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate purposes
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
6. If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and Just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.
(Emphasis supplied)
53. What Shri Adik and Shri Gupte contend is that if the circular dated 9th August, 1990 contemplates grant of police protection to persons who apprehend danger to their lives, it is immaterial that the person demanding protection is a criminal and because of his criminal activities he is apprehending threat to his life from a rival criminal gang. We must hasten to add that what the petitioner demands is armed police protection round the clock which we have held, he is not entitled to. The third question which we have framed for our decision at the beginning of this judgment is, if a person like the petitioner makes out a specific case of a genuine and imminent threat to his li fe, on a particular occasion, or at a particular place, would the State be justified in refusing armed police protection even qua that particular occasion or place. The second question is that while the State relies upon the circular dated 9th August, 1990, as amended on 12th May, 1997, the petitioner challenges the validity thereof on the ground that it violates Article 14. The argument is that there is no justification for the State to distinguish between law abiding persons on the one hand and persons having criminal background on the other for the purpose of deciding whether armed police protection round-the-clock is to be granted to a person or not. We have already indicated earlier that the pleadings on record show that both Arun Gavli and Ramesh Sharma have a serious criminal background. Both are tried in several criminal cases. They belong to one criminal gang or the other and the question is whether the State is obliged to afford armed police protection round-the-clock to such persons. We will refer to a few decisions of the Apex Court where it has been laid down that while Article 14 forbids class legislation, it does not forbid reasonable classification.
54. In Asgarali Nazarali Singaporewalla v. State of Bombay the Apex Court was considering the provisions of the Criminal Law Amendment Act, 1952, and the validity of the special procedure for specified offences triable by the Special Courts. It was held in para 16 of the judgment that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled viz, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. We must apply ratio to the classification made by the State under the said circular dated 9th August, 1990, between law abiding persons without any criminal background who complain of threats to their lives and request for police protection and persons having criminal background, who on account of their criminal activities, invite threat to their lives from a rival criminal gang. Can it be said that these two classes of persons should be grouped together for the purpose of applying the same set of rules to them ? In our view, the answer must be clearly in the negative. Applying the ratio of Asgarali's case, the provisions of Article 14 would not be violated if the State resorts to such a reasonable classification with the object of maintaining law and order on the society. The object of granting police protection to law abiding persons is to preserve law and order. If the result of granting police protection to criminals who invite threat to their lives due to their criminal activities, is to encourage their further indulging in criminal activities, it is difficult to understand how such a person can claim protection of Article 14 in the absence of any right under Article 21. As held by the Apex Court in the case of Mr. "X" v. Hospital "Z" (supra paras 41 and 42) even the right to privacy which is an essential component of right to life envisaged by Article 21 is not an absolute right and such a right may be lawfully restricted for prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. This was said by the Apex Court on the footing that the patient Mr. X had the right under Article 21. We have already held above that the petitioner has no such right under Article 21. We are now considering his case in respect of the circular dated 9th August, 1990 being violative of Article 14. The Apex Court further observed in the case of Mr. "X" v. Hospital 'Z' that if the enforcement of the alleged fundamental right would have the result of communicating the dreadful disease of 'AIDS' to others, Court should not assist such person to achieve that object. We must apply the same logic here.
55. In the State of Uttar Pradesh v. Kaushailiya and Ors. the Court was considering the validity of provisions of Section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and the question was whether the power given to the Magistrate to differentia between the two types of prostitutes was un canalised and hit by Article 14 of the Constitution. The Court negatived the said challenge and referred to the elaborate procedure to be adopted by the Magistrate exercising powers under Section 20 of the said Act. While coming to this conclusion, the Court observed in para 7 of the judgment as under:
7. The next question is whether the policy so disclosed offends Article 14 of the Constitution. It has been well settled that Article 14 does not prohibit reasonable classification for the purpose of legislation and that a law would not be held to infringe Article 14 of the Constitution of the classification is founded on an intelligible differentia and the said differentia has a rational relation to the object sought to be achieved by the said law. The differences between a woman who is a prostitute and one who is not certainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy locality or in an over-crowded town or in a place within the easy reach of public institutions like religious and educational institutions.
...
There are, therefore, pronounced and real differences between a woman who is a prostitute, and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deportation. The object of the Act, as has already been noticed, is not only to suppress immoral traffic in woman and girls, but also to improve public morals by removing prostitute from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes have a rational relation to the object sought to be achieved by the Act. Section 20, in order to prevent moral decadence in a busy locality, seeks to restrict the movements of the second category of prostitutes and to deport such of them as the peculiar methods of their operation in an area may demand.
56. In D.C. Bhatia and Ors. v. Union of India and Anr. the Apex Court was considering the amended provisions of the Delhi Rent Control Act, 1958. The challenge was to the constitutional validity of Section 3(c) of the said Act which classified the premises whose monthly rent exceeded Rs. 3500/- and, therefore, did not require the protection of the said Rent Act. The question was whether the fixation of the cut off point at Rs. 3500/- p.m. was arbitrary. It was held that in order to strike a balance between the interests of the landlords and also the tenants and for giving a boost to house building activity, the legislature in its wisdom had decided to restrict the protection of the Rent Act only to those premises for which rent was payable upto the sum of Rs. 3500/- p.m. It was decided not to extend the statutory protection to the premises constructed on or after the date of coming into operation of the Amending Act of 1988 for a period often years. The classification was made on the basis of the rent payable for the premises. It was held that it was not necessary for the Court to go too deep into the aspect of classification as it was for the legislature to decide what should be the cut off point for the purpose of classification and, the legislature of necessity, must have a lot of latitude for making classification having regard to the surrounding circumstances and facts. It is for the legislature to decide whether or not any section of the people should be protected, in any way by law. Safeguard provided under Article 14 of the Constitution can only be invoked if the classification is made on the grounds which are totally irrelevant to the object sought to be achieved. But, if there is some nexus between the objects sought to be achieved and the classification, the legislature is presumed to have acted in proper exercise of its constitutional power.
57. We have held above that the petitioner has no constitutional or other right. Indeed, on the first question, the petitioner's argument was only of a right under Article 21. We, therefore, see no reason why the principles reiterated in the case of D.C. Bhatia should not be applied if the executive circular dated 9th August, 1990 makes a reasonable classification with the object of maintaining law and order. The guidelines classify the normal law abiding persons who apprehend threat to their lives from criminals into one class. It affords police protection to them, though at times, on a review of the threat perception. The newly inserted guide line 4 is to deal with persons who have criminal background like the petitioner Arun Gavli or Ramesh Sharma. They belong to a criminal gang as is stated in the pleadings. It is because of the petitioner's criminal activities that he apprehends danger to his life from criminals belonging to rival criminal gang. It is difficult to accept how, in such circumstances, can it be contended that these two classes of persons, namely, one oflaw abiding persons without any criminal background and other like the petitioner must be classified together and failing to do so would violate the guarantee enshrined under Article 14. Applying the ratio of the above decisions, we have no hesitation in rejecting the said contention.
58. While considering the argument advanced on behalf of the petitioner that guideline 4 of the Circular is violative of the provisions of Article 14, we must consider yet another decision of the Apex Court in Dalmia Cement (Bharat) Ltd. v. Union of India (1996) 10 SCC 104 : 1996 (4) J.T. 555 : 1996 (4) Scale 14. What was challenged before the Court was the constitutionality of the restriction regarding compulsory packing of the specified commodities with jute packaging material (gunny bags) under Sections 3, 4 and 5 of the Jute Packaging Material (Compulsory Use in Packing Commodities) Act, 1987. The Court held that such restrictions were not violative of the provisions of Articles 14, 19(1)(g) and 301 of the Constitution. In Para 11 of the Judgment, the Court considered the preamble of the Constitution which guarantees justice, social, economic and political to the people and observed that the word "justice" envisioned in the preamble was used in the broad spectrum to harmonise individual right with the general welfare of the society. The Constitution is the supreme law. The purpose of law is realisation of justice whose content and scope would vary, depending upon the prevailing social environment. It was observed that in interpreting the provisions of the Constitution, the Court must endeavour to harmonise the individual interest with the paramount interest of the community keeping pace with the realities of ever-changing social and economic life. "Justice" in the preamble implies equality consistent with the competing demands between distributive justice with those of cumulative justice. Justice aims to promote the general well-being of the community, as well as the individual's excellence. The principal end of the society is to protect the enjoyment of the rights of the individuals subject to social order, well-being and morality. Establishment of priorities of liberties is a political judgment.
59. While we are considering the contention that Guideline 4 is violative of Article 14 of the Constitution, it Is necessary to bear in mind the aforesaid observations of the Apex Court in the case of Dalmia Cement (supra). When protection is granted to a law abiding person under the said Circular, it is with a view to ensuring maintenance of law and order in the society at large. Indeed, granting general armed police protection round the clock to persons having criminal background would defeat the very purpose of granting police protection, at times, to certain law abiding persons on the basis of the threat perception. We will deal with the aspect of threat perception and the procedure adopted by the respondent State to review the threat, a little later. Suffice it to say that, if one were to compare the interests of persons like the petitioner on the one hand and of the entire society on the other, the demands of cumulative justice would clearly outweigh the individual demand of the petitioner. The interests of the society far outweigh the interests of individuals like the petitioner.
60. The Apex Court then referred to Article 38 of the Constitution in Para 21 of its Judgment in the case of Dalmia Cement (Bharat) Ltd. In Part IV dealing with the Directive Principles of State Policy Article 38 enjoins the State to secure social order for promotion of welfare of the people. It reads as under:-
38. Stale to secure a social order for the promotion of welfare of the people -
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
Referring to Article 38 and the concept of justice envisaged in the preamble of the Constitution, the Court in para 21, observed as follows:-
As stated earlier, the rights, liberties and privileges assured to even citizen are linked with corresponding concepts of duty, public order and morality. Therefore, the jural postulates form the foundation for the functioning of a just society. The fundamental rights ensured in Part III are, therefore, made subject to restrictions i.e. public purpose in Part IV Directives, public interest or public order in the interest of the general public. In enlivening the fundamental rights and the public purpose in the Directives, Parliament is the best Judge to decide what is good for the community, by whose suffrage it comes into existence and the majority political party assumes governance of the country. The Directive Principles are the fundamentals in their manifestos. Any digression is unconstitutional. The Constitution enjoins upon the Executive, Legislature and the Judiciary to balance the competing and conflicting claims involved in a dispute so as to harmonise the competing claims to establish an egalitarian social order. It is a settled law that the Fundamental Rights and the Directive Principles are the two wheels of the chariot; none of the two is less important than the other. Snap one, the other will lose its efficacy. Together, they constitute the conscience of the Constitution to bring about social revolution under rule of law. The Fundamental Rights and the Directives are, therefore, harmonious interpreted to make the law a social engineer to provide flesh and blood to the dry bones of law.
Applying the above ratio to the facts of the present case, we have no hesitation in coming to the conclusion that the refusal to grant armed police protection round the clock to persons like the petitioner, relying upon the new Guideline No. 4 in the Circular cannot be challenged on the ground that it violates Article 14 of the Constitution.
61. On the question of Article 14 being violated, we must refer to a recent decision of the Apex Court in T.N. Electricity Board v. R. Veerasamy and Ors. . The question was about the validity of the prospective introduction of pension scheme of the appellant T.N. Electricity Board. It was contended that the Board was bound to extend the scheme to all the employees who already stood retired and had availed of the benefit under the Contributory Provident Fund Scheme before the introduction of the Pension Scheme. The High Court had directed retrospective application of the pension scheme on the ground that there was delay in its introduction. The cut-off date prescribed in the pension scheme was 1st July, 1986, which was prescribed by the Electricity Board on the basis of the Central Government notification. The Apex Court considered its earlier decisions, including (i) D.S. Nakara v. Union of India (ii) Krishena Kumar v. Union of India and (iii) Hari Ram Gupta v. State of Uttar Pradesh and held that if the Government or the authority which can be held to be a 'State' within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. It was held that the appellant Board had given well-founded reasons for introducing the pension scheme from 1st July, 1986 and one of the reasons was financial constraints which was a valid ground. Reliance by the High Court on the ratio in D.S. Nakara's case was held to be misplaced. The Apex Court, therefore, held that the employees who had retired from services prior to 1st July, 1986 and those who were in employment on the said date, could not be treated alike as they did not belong to one class. The workmen who had retired after receiving all the benefits available under the Contributory Provident Fund Scheme had ceased to be the employees of the appellant Board with affect from their retirement. They formed a separate class. Thus, the challenge on the ground of Article 14 being violated was negatived.
62. We have no hesitation in applying the ratio of the above decision to the classification made by the respondents between law abiding persons, who occasionally need police protection and persons having criminal background, like the petitioner, who are claiming round the clock armed police protection on the ground that they apprehend danger from a rival criminal. In our view, they constitute two distinct classes and it is impermissible to treat them as equals. If a law-abiding person, who apprehends threat to his life at the hands of terrorist and underworld criminals, prays for occasional police protection, his case has to be treated differently than the case of a person like the petitioner, who himself indulges in criminal activities, operates an underworld gang and, therefore, apprehends threat to this life from the rival criminal gang. The protection demanded by such a person having a criminal background is indeed to facilitate his indulging in further criminal activities under police cover. In our view, therefore, the two classes of persons cannot be treated alike. Reliance placed by the respondents on the newly inserted Guideline 4 would be wholly justified in the facts of the present case. We do not find anything in Guideline 4 which would violate the guarantee of equal protection of law enshrined under Article 14. Therefore, our answer to the second question would be clearly in the affirmative viz. the State can, by an executive fiat, like the Circular dt. 9th August, 1990 as amended on 12th May, 1997 distinguish between a law-abiding person on the one hand arid persons having a criminal background on the other for the purpose of deciding whether armed police protection round the clock is to be granted or not ?
63. We must also consider the connected submission referred to in para 48 above viz. that, Guideline 7 in the Circular dt. 9th August, 1990, overrides new Guideline 4. We have stated the substance of the guidelines in paras 45 and 46. Guideline 7 says that if a person demands police protection on the ground that he apprehends threat from a rival with criminal background, greater importance should be given to granting police protection to such a person. In our view, the submission is clearly misconceived and overlooks the basic distinction between the two guidelines. Guideline 4 specifically deals with the request for police protection by a person, who has himself a criminal background and who invites danger to his life because of his criminal activities. It is such a person, contemplated by Guideline 4, who demands police protection on the ground that he apprehends threat by a person belonging to a rival gang. Guideline 7 opens with the words "A person demands police protection". It is absolutely clear that Guideline 7 does not contemplate a criminal demanding police protection. On the contrary, it contemplates a law-abiding person demanding police protection on the ground that his rival is having a criminal record. There is, thus, no question of Guideline 7 overriding Guideline 4. They operate in different fields. The application of Guideline 4 is in a situation like the present one in which the petitioner Arun Gavli or Ramesh Sharma have placed themselves as a result of their indulging in criminal activities. They can never be compared with law abiding persons whose case is contemplated by Guideline 7. We have, therefore, no hesitation in rejecting the contention.
64. In the result of the above discussion will show that (i) persons, like the petitioner, who have criminal background and who, on account of their indulging in criminal activities, invite danger to their life from a rival criminal gang, cannot spell out any right under Article 21 of the Constitution to insist that the State must afford them armed police protection round the clock, (ii) in the absence of any right under Article 21, the State can by an executive fiat, like the Circular dt. 9th August, 1990 distinguish between law-abiding persons on the one hand, who apprehended danger to their life from criminals and persons like the petitioner on the other hand, who have criminal background and who, as a result of their indulging in crime, apprehend danger to their life from rival criminal gang. In our view. Guideline 4 does not suffer from the vice of hostile discrimination and is not hit by the provisions of Article 14 of the Constitution.
65. Having answered the first two questions as above, the third question still remains as to whether in case a person, like the petitioner, makes out a specific case of a genuine and imminent threat to his life, on a particular occasion or at a particular place, would the State be still justified in refusing to grant: armed police protection to him for the limited purpose of the said occasion or the said place ? In this behalf, it is relevant to note that the Circular dt. 9th August, 1990 contemplates a Committee reviewing the threat to a particular person. This is known as the Threat Perception Committee. The learned Advocate-General has invited our attention to the Secret Guidelines based on a study of security arrangements for protection of individuals. At the outset, we must mention that they are meant for the protection of Very Very Important Personalities (V.V.I.Ps.) and Very Important Personalities (V.I.Ps.) and other highly protected dignitories. Needless to say that these Secret Guidelines have no application while considering the case of persons like the petitioner. But the said guidelines give a clue to the working of the Threat Perception Committee of the State Government. The Secret File made available to us by the learned Advocate General discloses the composition of the Threat Perception Committee which consists of senior Police Officers belonging to the I.P.S. cadre. They occasionally meet and review the threat to a person who has been granted or even denied armed police protection. The learned Advocate-General stated that since the instructions given by the Intelligence Bureau of the Ministry of Home Affairs of the Government of India are treated secret, they should not be taken on record. We have no hesitation in upholding the privilege claimed by the Advocate-General and we do not think it necessary to discuss the said Secret Guidelines in detail, lest its secrecy is lost. Suffice it to say that the Circular dt. 9th August, 1990 contemplates occasional review of the threat by the Threat Perception Committee. This is clear from the first guideline in the Circular dt. 9th August, 1990, Similarly, Guideline 4, as amended, contemplates application of mind by the Threat Perception Committee since the said guideline concerns a person like the petitioner having criminal background apprehending threat to his life as a result of his indulging in criminal activities. Guideline 7 also indicates that when a law abiding person prays for police protection on ground that he apprehends danger to his life from his rival having a criminal background, the Threat Perception Committee has to consider the matter with greater importance. If it transpires that the rival has no criminal background, the police protection can be given for a limited duration, as is stated in Guideline 8. Guideline 9 indicates the extent and the details of police protect' m and the instructions to be given to the person protected and the necessary precaution to be taken in that behalf.
66. It this be the true spirit of the Circular dated 9th August, 1990, as amended on 12th May, 1977, and if a person like the petitioner makes out specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, we are of the view that the Threat Perception Committee should examine the claim of such a person, like the petitioner Arun Gavli or Ramesh Sharma and if the Committee comes to the conclusion that there is a genuine and imminent threat to his life on a particular occasion or at a particular place, it may grant him police protection qua that limited period viz. for that occasion or for that place. This would, therefore, depend upon the facts of each case. Though, therefore, we have rejected the first contention of the petitioner that he has an absolute and unqualified right, emanating from Article 21 to claim that the State must afford him armed police protection round the clock, and though we have also held that Guideline 4 of the Circular dt. 9th August, 1990, as amended on 12th May, 1997, is not violative of the guarantee enshrined in Article 14, we are of the view that if a person like the petitioner makes out a specific case of a genuine and imminent threat to this life on a particular occasion or at a particular place and if the Threat Perception Committee of the State Government is satisfied about the genuineness of such a threat, it may consider granting him such police protection as it thinks appropriate in the facts of the case. The learned Advocate-General fairly stated that even in the case of the two petitioners - Arun Gavli and Ramesh Sharma when the police authorities were satisfied about the genuineness and imminence of the threat to their life, such protection was granted, though for a limited period. On a review by the Threat Perception Committee, the said protection was withdrawn since it was found to be no longer necessary. In view of the above, we have no hesitation in answering the third question in the negative viz. that if a person like the petitioner makes out a specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, the State Government will not be justified in refusing to grant armed police protection to such a person, though limited for that particular occasion or place.
67. In the light of the above discussion, we may sum up our conclusions as under:-
(i) The language of Article 21, which appears in Part III of the Constitution, clearly shows that the Article is intended to afford protection to life and personal liberty against State action and not against violation thereof by private individuals, (ii) Though there is no express reference to the State in the mandate of Article 21, it could not, on that account, be suggested that Article 21 was intended to afford protection to life and personal liberty against its violation by private individuals, (iii) The ratio of the two decisions in Sunil Balm's cases has no application to the facts of the present case. Sanil Balm's cases related to the prisoners who were in the custody of the State and the jail authorities had committed violation of the rights of the prisoners, (iv) Similarly, the ratio of the decision in Maneka Gandhi's case can have no application to the facts of the present case where a person like the petitioner, who indulges in crime, apprehends danger to his life on account of his indulging in criminal activities, (v) What is important is that the danger apprehended is at the instance of a rival criminal and armed police protection round the clock is prayed for which will have the result of gaining an upper hand in one's criminal activities, (vi) None of the instances enumerated in Unnikrishnaris case can be compared with the petitioner's grievance in respect of the alleged threat emanating from a rival criminal gang, (vii) If this be the true legal position, a petition under Article 226 cannot lie since no right of the petitioner under Article 21 has been violated. It is not even the petitioner's case that any other legal right, apart from a fundamental right under the Constitution, has been violated, (viii) The decisions of this Court in Jitendra Suresh Dabholkar's case, and Allan Basling Bala's case categorically negative any such right to the petitioner for demanding armed police protection round the clock, (ix) Even assuming that the petitioner had any right under Article 21, having regard to the ratio of the decision in the case of Mr. "X" v. Hospital "Z", the right of the individual must yield to the higher right of the society, (x) It would be against public morality and public interest to grant armed police protection round the clock to one criminal who apprehends injury to his life from another criminal. The threat emanates because the petitioner indulges in criminal activities and himself operates a criminal gang, as is evident from the pleadings, (xi) In the present days of advanced sophisticated telecommunication systems granting armed police protection round the clock to a person like the petitioner would facilitate and encourage his indulging in criminal activities which would be against public morality and public interest. It will defeat the very purpose of maintaining law and order for which armed police protection is to be granted, (xii) The Circular dated 9th August, 1990, as amended on 12th May, 1997, and in particular Guideline 4 thereof, does not violate the mandate of Article 14. (xiii) The principle of equality enshrined in Article 14 does not mean that all laws must have universal application. The power of the State to classify persons differently for a legitimate purpose is not taken away by Article 14. Differential treatment does not, by itself, constitute violation of Article 14. (xiv) The classification to be permissible must satisfy two conditions, viz. : (a) it must be founded on an intelligible differentia; and (b) the differentia must have a rational nexus with the object sought to be achieved, (xv) The object underlying the guidelines in the Circular is to maintain law and order. Classifying criminals differently from law-abiding persons does not violate the mandate of Article 14. (xvi) guideline 7 operates in a different field. It does not override guideline 4. The petitioner, therefore, cannot insist, as a matter of his right under Article 21, that he must get armed police protection round the clock, (xvii) However, if a person like the petitioner makes out a specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, the State would be required to grant him police protection for the limited purpose of the said occasion or place, (xviii) This is subject to occasional review by the Threat Perception Committee constituted by the State Government.
68. In view of the aforesaid conclusions, our answers to the three questions mentioned at the outset (in para 3) are as under:-
(i) The protection of life and personal liberty guaranteed under Article 21 of the Constitution does not include a right in favour of a person like the petitioner to claim that the State must afford him armed police protection for 24 hours a day, everyday, that is to say, round the clock.
(ii) In the absence of any such right flowing from the mandate of Article 21, as indicated in our answer to Question (i) the State can, by an executive fiat, like the Circular dt. 9th August, 1990, as amended on 12th May, 1997, distinguish between law-abiding person on the one hand and a person having a criminal background on the other for the purpose of deciding whether armed police protection round the clock is to be granted or not.
(iii) Despite the above, however, if a person like the petitioner, makes out a specific case of a genuine and imminent threat to his life on a particular occasion or at a particular place, the State Government would not be justified in refusing to grant armed police protection to him qua that particular occasion or place. This would, however, be subject to occasional review by the Threat Perception Committee constituted by the State Government.
69. In this view of the matter, the Writ Petition filed by Arun Gavli for the reliefs claimed in the petition must be rejected. We have set out in para 4 the reliefs, in the blanket form, prayed by the petitioner. In the view that we have taken on the first two questions, the petitioner will not be entitled to any relief in terms of prayers (A) & (B) of the petition. However, we must add that in the event of the petitioner making out a specific case of a genuine and imminent threat to his life on a particular occasion or a particular place, the State Government would be obliged to grant him armed police protection qua that particular occasion or place.
70. In view of the above, the Rule stands discharged. No order as to costs. Issuance of certified copy expedited.