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Anita Thakur and Ors. v. Ersus Govt. of J&K and Ors - (Supreme Court) (12 Aug 2016)

Doctrine of sovereign immunity not applicable to cases of fundamental rights violation, hence, cannot be used as a defence in public law

MANU/SC/0915/2016

Constitution

In present writ petition, Petitioners, migrants of State of Jammu & Kashmir State had planned to take out a peaceful protest March upto Delhi for ventilating their grievances. However, when reached near Katra in Jammu & Kashmir, Respondent authorities through their police personnel had beaten up and manhandled these migrants in a most brutal and barbaric manner. Petitioners alleged that, this incident violated their rights guaranteed to them under Articles 14, 19, 21 and 22 of Constitution of India and prayers are made for taking criminal action against erring officials, and also to pay compensation to each of Petitioners and other Jammu migrants who suffered serious injuries.

Holding peaceful demonstration in order to air their grievances and to see that their voice is heard in relevant quarters is right of the people. Such a right can be traced to fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of Constitution. Article 19(1)(a) confers freedom of speech to citizens. This provision ensures that, Petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers right to assemble and, thus, guarantees that all citizens have right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The 'right to assemble' is beautifully captured in an eloquent statement that “an unarmed, peaceful protest procession in the land of 'salt satyagraha', fast-unto-death and 'do or die' is no jural anathema”.

Aforesaid rights are subject to reasonable restrictions in interest of sovereignty and integrity of India, as well as public order. While on one hand, citizens are guaranteed fundamental right of speech, right to assemble for purpose of carrying peaceful protest processions and right of free movement, on other hand, reasonable restrictions on such right can be put by law. Provisions of IPC and Cr.P.C., are in form of statutory provisions giving powers to State to ensure that such public assemblies, protests, dharnas or marches are peaceful and they do not become 'unlawful'. At the same time, while exercising such powers, authorities are supposed to act within limits of law and cannot indulge into excesses.

In present matter, initially, it was Petitioners/ protestors who took law into their hands by turning their peaceful agitation into a violent one and in process becoming unruly and petting stones at police. On other hand, even police personnel continued use of force beyond limits after they had controlled mob. In process, they continued their lathi charge. They continued to beat up all Petitioners even after overpowering them. It is apparent that to that extent, Respondents misused their power and fundamental right of Petitioners, due to police excess, had been violated.

A violation of fundamental rights due to police misconduct can give rise to a liability under public law, apart from criminal and tort law. Pecuniary compensation can be awarded for such a violation of fundamental rights. It is the State that is held liable and, therefore, compensation is borne by the State and not individual police officers found guilty of misconduct. Standard of proof required for proving police misconduct such as brutality, torture, custodial violence and for holding the State accountable for the same, is high. It is only for patent and incontrovertible violation of fundamental rights that such remedy can be made available. Doctrine of sovereign immunity does not apply to cases of fundamental rights violation and hence cannot be used as a defence in public law. Supreme Court awarded compensation and disposed off the Petitions.

Relevant : Articles 14, 19, 21 and 22 of Constitution of India

Tags : FUNDAMENTAL RIGHTS   VIOLATION   COMPENSATION  

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