Madras High Court
Saravanan Dakshinamurthy vs The State Of Tamil Nadu on 24 June, 2022
W.P.Nos.22532 of 2014
and 8801 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.06.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.Nos.22532 of 2014 and 8801 of 2020
and W.M.P.No.10684 of 2020
W.P.No.22532 of 2014
Saravanan Dakshinamurthy .. Petitioner
-vs-
1. The State of Tamil Nadu
Rep. By its Chief Secretary,
Fort St. George, Chennai.
2. The State of Tamil Nadu,
Rep. by its Secretary,
Home Department, Fort St. George,
Chennai. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration to declare Section 10 and 14 (2) of
the Tamil Nadu Police (Reforms) Act, 2013 as arbitrary, unreasonable
and ultra vires to Article 14 and 21 of the Constitution of India and
hence unconstitutional and further direct the respondents to forthwith
constitute Police Complaints Authority at the District and State level
strictly in consonance with the directions of the Hon'ble Supreme
Court in Prakash Singh & Others -vs- Union of India & Ors. (2006 (8)
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SCC 1).
W.P.No.8801 of 2020
A.G.Maurya .. Petitioner
-vs-
1. Union of India,
Through Secretary, Ministry of Law
and Justice, Dept. of Legislative Affairs,
Lok Nayak Bhawan, Khan Market,
New Delhi 110003.
2. State of Tamil Nadu
Through Home Secretary,
Government of Tamil Nadu,
Namakkal Kavignar Maaligai,
Fort St. George, Chennai 600 009. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration to declare Section 10, 13 and 14
(2), 16 and 19 of the Tamil Nadu Police (Reforms) Act, 2013 are
unconstitutional, illegal and bad in law so long as they are arbitrary,
discriminatory and violative of Article 14 of the Constitution.
For the Petitioner in
WP.22532 of 2014 : Mr.A.Yogeshwaran
WP.8801 of 2020 : Mr.Subhang Nair MAH
For the Respondents : Mr.R.Shunmugasundaram
Advocate General
assisted by Mr.S.Silambanan
Addl. Adv. General and
Mr.C.Selvaraj, G.A. &
Ms.A.G.Shakeena for RR 1 and 2
in WP.22532 of 2014 and
for R-2 in WP.8801 of 2020
: Mr.N.Ramesh for R-1
in WP.8801 of 2020
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W.P.Nos.22532 of 2014
and 8801 of 2020
*****
ORDER
(Order of the Court was made by
the Hon'ble Chief Justice)
The writ petitions have been filed to challenge Sections 10, 13,
14(2), 16 and 19 of the Tamil Nadu Police (Reforms) Act, 2013
holding it to be arbitrary and unconstitutional and thereby ultra
vires of Article 14 and 21 of the Constitution of India. Further
direction has been sought on the respondents in W.P.No.22532 of
2014 to forthwith constitute Police Complaints Authority at the
District and State level especially in consonance with the direction of
the Apex Court in Prakash Singh and Ors. vs. Union of India,
(2006) 8 SCC 1.
2. Learned counsel for the petitioners submit that certain
provisions under the Act of 2013 offend the direction given by the
Apex Court in the judgment supra. The State Government was
under obligation to constitute Police Complaints Authority in
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W.P.Nos.22532 of 2014
and 8801 of 2020
consonance with the direction of the Apex Court, but ignoring the
aforesaid, the respondents have brought the legislation to constitute
the State Level Police Complaint Authority so also the District Level
Police Complaint Authority by taking the Home Secretary to be the
Chair Person of the State Police Complaint Authority and the District
Collector for the District Police Complaint Authority. As per the
judgment of the Supreme Court in the case of Prakash Singh,
supra, the Chair Person of the State Police Complaint Authority is to
be a retired Judge of the High Court, but ignoring the aforesaid, the
Home Secretary has been made the Chair Person. Therefore, the
aforesaid provisions of the Act of 2013 have to be struck down.
3. It is further submitted that the issue of constitutional
validity can be addressed by this Court having jurisdiction under
Article 226 of the Constitution of India and for that, the petitioners
are not required to approach the Supreme Court which is seized of
the matter regarding compliance of the judgment in the case of
Prakash Singh, supra and it is more so when the petitioners have
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W.P.Nos.22532 of 2014
and 8801 of 2020
challenged the constitutional validity of the Act brought by the
respondents.
4. A reference of the order of the Apex Court dated
12.06.2020 has been given where even the learned Amicus, Mr.Raju
Ramachandran, suggested to the Apex Court to allow the
jurisdictional High Court to deal with the applications filed by
different States and accordingly, the entire issue of monitoring for
implementation of the guidelines be left to the jurisdictional High
Court. In view of the above, even a suggestion was given to leave
the issues on the jurisdictional Courts even in reference to the
implementation of the order of the Supreme Court in the case of
Prakash Singh, supra. Therefore, the petitioners have preferred
these writ petitions to challenge the provisions of the Act of 2013 to
the extent it is offending the direction of the Apex Court.
5. Learned Advocate General has raised serious objection on
the maintainability of the writ petitions before this Court. He
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submits that when the Apex Court is seized of the matter and
monitoring the compliance of its judgment in the case of Prakash
Singh, supra, this Court should not enter into the issues raised by
the petitioners herein. It is more so when the State Government
had submitted an affidavit along with the legislation brought by
them in the year 2013 to show compliance of the judgment in the
case of Prakash Singh, supra and their affidavit has been taken on
record without a comment that the Act of 2013 is offending the
direction of the Apex Court. It is not that the State Government has
not informed the Supreme Court about the compliance during the
course of monitoring and no adverse order on the legislation has
been passed, therefore, this Court may not enter into the issue
which is pending consideration before the Apex Court.
6. It is more so when the petitioners are having an opportunity
to approach the Apex Court by making an appropriate application to
indicate that the State legislation is not in consonance with the
direction given by the Apex Court. Instead of approaching the Apex
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Court, the present petitions have been filed and are otherwise not
maintainable.
7. Another argument is that while the matter is pending before
the Apex Court and it is monitoring the compliance, it may result in
favourable comment on the legislation pending consideration before
the Apex Court. If it is struck down by this Court holding it to be
ultra vires and it would have serious consequence, therefore, the
prayer is to dismiss the writ petitions which may be with liberty to
the petitioners to approach the Apex Court on the issues raised
herein.
8. Learned Advocate General has further made a reference of
the judgment of this Court in the case of Y.Akbar Ahmed vs.
Secretary, Home Department, Government of Tamilnadu and
Ors. (W.P.No.2342 of 2019, decided on 04.04.2019). In the said
case also, the constitution of the State Police Complaint Authority
was challenged. The Division Bench refused to intervene in the
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matter pending consideration before the Apex Court which is
monitoring the subject. The writ petition was, therefore, dismissed
with costs. A specific reference to para 12 of the judgment was
given to decline exercise of jurisdiction and that it is applicable to
the present litigation.
9. In reference to the direction in the case of Prakash Singh,
supra, it is submitted that the Police Complaint Authority is to be
constituted in the manner indicated by the Apex Court till the State
makes their own legislation. The direction to form the State Level
Police Complaint Authority or District Level Police Complaint
Authority was not mandated in the manner directed by the Apex
Court rather it was to be complied till a legislation is brought and for
that reason also, no adverse order has been passed by the Apex
Court despite filing of the affidavit towards compliance along with
the production of the legislation brought by the State.
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10. The learned counsel for the petitioners in reply, submit
that the judgment in the case of Y.Akbar Ahmed, supra, was not
in reference to the challenge to constitutional validity of the Act of
2013 but was in regard to the constitution of the Police Complaint
Authority. In view of the above, the judgment supra would not have
an application in the matter. It is further submitted that for
challenge to the constitutional validity of the Act, the petitioners are
not required to approach the Apex Court rather the jurisdiction of
this Court under Article 226 of the Constitution of India would be
available and therefore, the petitioners have rightly invoked the
jurisdiction of this Court to challenge the constitutional validity of
the Act, which otherwise could not be a subject matter before the
Apex Court in the pending matter, monitoring the implementation of
the order. The prayer is, accordingly, to allow the writ petitions.
11. We have considered the rival submissions of the parties
and perused the records.
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12. The facts on record show that pursuant to the judgment of
the Apex Court in the case of Prakash Singh, supra and the
directions given therein, the respondents brought the Act of 2013
wherein the provision was made regarding constitution of the State
and District Level Police Complaint Authority. The State
Government submitted the Act of 2013 along with the affidavit
before the Apex Court to show compliance of the judgment. The
Apex Court has not commented on the affidavit or the legislation
holding it to be contrary to the direction issued in the Prakash
Singh case, supra. The matter is still pending before the Supreme
Court to monitor the compliance.
13. It may be true that a suggestion was given by Mr.Raju
Ramachandran, learned Amicus Curiae, to allow the jurisdictional
High Court to consider the applications and even to monitor the
implementation of the judgment of the Apex Court, but, no direction
on the aforesaid was given while passing the order on 12.06.2020.
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The aforesaid is relevant for the reason that monitoring of the
compliance of the judgment in the Prakash Singh case is still with
the Apex Court.
14. In the light of the aforesaid, if the legislation brought by
the respondents is offending the direction given by the Apex Court in
the case of Prakash Singh, supra, an appropriate order can be
passed on affidavit submitted by the State Government. Till date,
no adverse order has been passed despite the legislation having
been placed before the Supreme Court and in those circumstance, it
would not be proper for this Court to enter into the issues raised by
the petitioners.
15. It is no doubt true that in the normal circumstances, this
Court is having power to examine the constitutional validity of the
provision, if challenged before it, but, the case on hand is of
exceptional nature. It is for the reason that the legislation under
challenge was brought in compliance of the judgment of the
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Supreme Court and the subject matter is still pending before it to
monitor the compliance. It is not that the Apex Court has closed the
matter referring it to the High Court to see the compliance.
16. In the instant case, when the matter is still pending before
the Apex Court to monitor the compliance, learned counsel for the
petitioners could not clarify as to why they did not raise objection to
the legislation when it has been placed before the Apex Court
showing it to be in violation of the direction in the case of Prakash
Singh, supra.
17. In view of the above, we do not find that till the matter is
pending before the Apex Court to see the compliance and its
monitoring, this Court should enter into the issues raised by the
petitioners. Accordingly, we order to close the writ petitions,
however, it is with the liberty to the petitioners to approach the
Supreme Court on all the issues raised by them in the writ petitions
and therefore, we have not made comment on any of the issues for
challenge to the legislation which is alleged to have been brought in
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violation of the direction of the Apex Court, rather the issues have
been kept open and otherwise any comment on merits would result
in interference in the monitoring of the implementation of the
judgment in the case of Prakash Singh, supra.
The writ petitions are closed with the aforesaid observations.
No costs. Consequently, W.M.P.No.10684 of 2020 is closed.
(M.N.B., CJ.) (N.M., J.)
24.06.2022
Index : Yes/No
sra
To:
1. The Chief Secretary to Govt. of Tamil Nadu
Fort St. George, Chennai.
2. The Home Secretary,
Government of Tamil Nadu,
Namakkal Kavignar Maaligai,
Fort St. George, Chennai 600 009.
3. The Secretary, Union of India,
Ministry of Law and Justice,
Dept. of Legislative Affairs,
Lok Nayak Bhawan, Khan Market,
New Delhi 110003.
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W.P.Nos.22532 of 2014
and 8801 of 2020
M.N.Bhandari, CJ.
and
N.Mala, J.
(sra)
W.P.Nos.22532 of 2014
and 8801 of 2020
24.06.2022
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