The Telegraph
Saturday , January 25 , 2014
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SC statute lesson to dharna CM and cops

New Delhi, Jan. 24: The Supreme Court today said every individual holding constitutional office was governed by the Constitution, bringing under scrutiny chief minister Arvind Kejriwal’s dharna as well as the failure by Delhi police to take action to uphold the law.

“Every institution is a product of the Constitution. Every individual who holds constitutional office is governed by the Constitution,” the court said, seeking the response of the Union and Delhi governments on a PIL pushing for Kejriwal’s removal for his “unconstitutional act” of starting street protests despite holding constitutional office.

The court minced no words in expressing strong displeasure at Delhi police for permitting the dharna despite prohibitory orders under Section 144 banning the assembly of five or more persons in the area and asked why force was not used to disperse the protesters.

Section 144 of the CrPC was in force in central Delhi, where Kejriwal staged the protest, in view of Republic Day celebrations. Section 129 (2) mandates the police to use force if the unlawful assembly fails to disperse on a command issued by a police officer or the district magistrate.

The PIL filed by advocate M.L. Sharma, besides seeking Kejriwal’s removal, also wanted him criminally prosecuted for backing law minister Somnath Bharti, who has been accused of harassing and intimidating four African women.

“The writ petition raises questions of constitutional importance. Issue notices to the respondent No. 1 (Union home ministry) and Respondent 4 (Delhi govt). Notice be returnable within six weeks,” Justice R.M. Lodha said.

Sharma, in his PIL, had raised the following questions for the court’s consideration:

Whether chief minister/ minister can be permitted to play a dual role, i.e. holding constitutional office and street agitator;

Whether chief minister/ minister can raise any demand through such street protests, instead of adopting the means prescribed by the Constitution;

Do chief minister/ minister have any legal authority to act as a police officer under CrPC/Constitution to raid/detain any women in the midnight;

Whether chief minister/ minister can violate constitutional provision and breach the oath of office/secrecy undertaken by them to uphold the Constitution in letter and spirit;

And shouldn’t the chief minister /minister be removed from office for their said unconstitutional action/ misbehaviour/ criminal offence of IPC?

Sharma has sought prosecution of both Kejriwal and Bharti under IPC Section 509 IPC, which prescribes a punishment of three years to any person who, by word of gesture, outrages the modesty of a woman.

Second PIL

When the court was about to dismiss a PIL filed by another advocate, N. Rajaraman, alleging that citizens’ fundamental rights had been violated by the dharna, additional solicitor-general Siddharth Luthra claimed an “FIR has been lodged” over the unlawful assembly of people close to Parliament.

Luthra’s intervention provoked the bench to shoot searching questions to the Delhi police on how, to begin with, they had permitted the gathering of people when Section 144 was in force.

“If 144 is in operation, then five or more persons are not allowed to assemble. Then how did you allow them to assemble? There may be five persons, 20,000 persons or 5,000 persons or 50 persons. Question is, how did you allow them to assemble… There was a gathering, which could be seen. Why was the gathering permitted?

“These are matters which we don’t expect law-enforcing agencies to be silent. Law-enforcing agencies also have an obligation. They have an obligation when the law is being broken before their eyes… they can’t remain mute spectators.”

The ASG then sought time till next Friday to place on record the Delhi police’s response on the questions posed by the bench.