“Yatra Naryantu Pujyante Tatra Ramyate Devtaa.”
This writ petition in public interest has been brought forward highlighting the recent steps taken by the State Government by calling upon the police authorities to take appropriate steps of policing in order to prevent such crimes that outrage or insult the modesty of female citizens of this State. The petition however prays for a direction that the State should not commit excesses so as to invade the private rights of couples or adults that are suspiciously viewed by the police to be indulging in any unauthorised or unlawful act by exhibiting knee-jerk reactions that may disturb the ordinary peace and harmony prevailing in the society. The petitioner also apprehends that the general atmosphere of the society is likely to be disturbed on account of the utilisation of the words “Anti Romeo Squad” and create a panic so as to prevent lawful youth couples also from exercising their right of freedom of movement and expression.
Shri Gaurav Gupta, the petitioner in person, contends that no action can be taken by the State in excess of authority so as to impinge the fundamental rights guaranteed under the Constitution and invade the privacy of any individual or curtail liberty even if such an individual is in lawful assembly. The obstruction, if any caused if based on no reason would therefore be an excess of authority and an arbitrary exercise of police power which is impermissible under the Constitution. He submits that no guidelines have been framed in order to ensure the proper application of any such surveillance stated to be in public interest and therefore, there is every likelihood of excesses being committed including the nature of the excess as indicated in the writ petition in the name of moral policing. It is, therefore, the contention of the petitioner that the respondent – authorities including the police should be restrained from acting on such administrative instructions that may have been issued by the Police Department as they do not appear to be with any authority in law. The petitioner for this has relied on an alleged incident as stated in Para-14 to substantiate his submissions and to contend that such acts which are being attempted by the police to create a fearful atmosphere do not fall within the authority of lawful policing and can be termed as “Moral Policing.” The contention, therefore, is that if the law does not authorise such moral policing then in that event, the constitutional rights of the citizens of the State are being violated by such actions which are reportedly not supported in law. He, therefore, contends that any direction issued by the respondents that tend to violate such rights guaranteed under the Constitution should be restrained by this Court under the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
Learned Chief Standing Counsel Shri Mohd. Mansoor with the able assistance of the Senior Superintendent of Police, Lucknow Ms. Manzil Saini has urged that the directions issued by the Director General of Police are clearly intended to enforce the existing law as prescribed under the statue namely, the Indian Penal Code read with Criminal Procedure Code, the Police Act, the U.P. Police Regulations as well as such other laws that for the time being are in force. The submission of the learned C.S.C. is that there is a clear prescription of law and therefore, the action being authorised and backed by statutory provisions cannot be said to be either unlawful or beyond the purview of law. He, however, submits that such restrictions by way of a proper policing are clearly protected and guaranteed under the Constitution itself and any regulations made in order to prevent the happening of any offence or otherwise also to maintain law and order is clearly within the realm of the State Authority which cannot be said to be beyond the bounds of the Constitution. He, therefore, submits that the action taken by the Director General of Police in implementing any such policy which is supported by law cannot be said to be violating the fundamental rights of any of the citizens of the State unless it can be shown that any excesses have been committed by the police. He submits that there is no prohibitory law that is sought to be enforced that may be either not be prescribed or sustainable under the Constitution. The activities of the police are clearly within the bounds and the guidelines that have been issued by the Director General of Police are sufficiently framed so as to protect the liberties of the citizens of the State without impinging on any of their fundamental rights. His contention, therefore, is that the allegation of invasion of privacy, the allegation of disturbing a lawful assembly or restricting the freedom of movement or expression is unfounded and cannot be a ground to maintain the writ petition. He also submits that the provisions and the various enactments protect such actions and not only this, the citizens of the State are equally duty bound to obey the law and also to support the law enforcing agencies in trying to prevent the commission of any offence or mis-happening that may result in the commission of any such offence.
We have considered the submissions raised and apart from this, we may extract the directives which have been issued resulting in the policing activities that have been made a matter of concern in this petition. To begin with Para – 2 of the directive contained in the communication of the Director General of Police dated 22.03.2017 is extracted herein under: –
The Director General of Police appears to have been informed about the alleged complaints of inconvenience being caused as a result whereof the second communication was issued on 25.03.2017 which is to the following effect extracted herein under:-
The Senior Superintendent of Police, Lucknow in compliance of such directives having been issued has also issued an office order dated 25.03.2017 which is to the following effect:-
In order to understand the controversy the first distinction that needs to be resolved is the allegation of the petitioner about Moral Policing viz-a-viz, the activities of the police that have been made the basis for alleging the violation of fundamental rights of the citizens of this State. We may clarify that there is a clear distinction between morality and law. It is something different that law itself has a moral force, but at the same time the law as indicated by the legislature or by the executive which still holds the field is to be respected and has to be enforced by the executive as it exists. It has to be enforced in order to prevent the commission of any offence as well. This can be clearly inferred from the nature of the incidents that are likely to occur or do occur in the circumstances in which the present policing has begun, they are of the nature of offences as described in Sections – 294, 354A, B, C, & D as well as Section – 509 of the Indian Penal Code. The offences under the aforesaid sections are cognizable offences, and, as has been rightly pointed out by the learned Chief Standing Counsel, Section – 149 of the Criminal Procedure Code enjoins upon the police authorities to take all such action that may be required for the prevention of any such offence. Not only this, apart from the offences defined under the Indian Penal Code, the Police Act, 1861 read with U.P. Police Regulations also authorise the patrolling and policing through methods as prescribed therein. Section – 12 of the Police Act, 1861 read with Section – 23 & Section – 34 clearly indicate the powers which are available with the police to formulate such schemes subject to the approval of the State Government in order to implement and enforce the laws as defined under the Penal Code and also under the Criminal Procedure Code by defining the manner in which it is to be executed and also prescribing the duties of the police officers. The Police Act, 1861 also prescribes the punishment for certain offences and the seventh explanation to Section – 34 of the 1861 Act also is an indicator in relation to such offences, the policing whereof is now being enforced under the directives of the Director General of Police.
The police is also authorised to patrol in plain clothes as per Regulation – 194 of Chapter – XVIII of the U.P. Police Regulations. The surveillance of suspects is also authorised in law under Regulation – 236 of the said regulations. Consequently, a conspectus of the aforesaid provisions leave no room for doubt that the police is armed with ample powers and conferred with sufficient lawful authority to remain vigilant and prevent the cause of any mis-happening. Shadow surveillance or open surveillance of a suspect is therefore permissible, subject to the fundamental rights guaranteed under the Constitution. The Hon’ble Supreme Court has time and again ruled that domiciliary visits cannot be attempted by the police as they, at times in the manner executed, violate fundamental rights but in the instant case such shadow surveillance leading to any further action as prescribed is guarded and guided under the instructions issued by the Director General of Police as indicated herein above. The policing introduced through the squads are to prevent obscenity at public places and to affirmatively protect females from insult and indecency.
Consequently, we are unable to gather any lawful or otherwise constitutional defect in the attempt so made by the respondents in proceeding to form the squads for the purpose of such policing. It is something different that there may be a dispute with regard to the name of the squad or any objection relating thereto but we are not called upon to adjudicate on the said issue as it is always open to the State Government to rename the squad appropriately so as not to offend the feelings of any person.
Apart from this, Shri Gaurav Gupta has urged that the manner in which this policing is being done, for example taking of photographs through mobile phones and then making it viral on the social media offends the private rights of citizens male or female and this being not regulated, the same would amount to the invasion of the right of privacy of a citizen. We may observe that surveillance also may include at times the capturing of images, for example through CCTV Cameras or even mobile phones in order to track any unlawful activity. If the said tracking is with a lawful intention and for a lawful purpose then in that event it cannot be said that it has been done with the intention of trying to invade the privacy of a person so as to constitute an offence.
However, it is always open to a person who finds such invasion to be unlawful to lodge a complaint before the appropriate authority or appropriately bringing it to the notice of the appropriate Court about any such violation. The surveillance, therefore, by itself without any intent of unlawful purpose will automatically not turn to be an unlawful activity.
Shri Gaurav Gupta has then highlighted the inadequacy of the police force in the entire State so as to bring about a situation where the police in order to cover up its shortcomings and in an anxiety to give results may unlawfully indulge in such activities only for the show of authority and create panic.
In our considered opinion, the action of surveillance by the police may not have a direct nexus with inadequacy of forces so as to construe that the activity of policing as presently involved would itself become an unlawful activity. It is, of course, the duty of the State to provide adequate police force which is a different issue altogether and for which we hope and trust that that the State will take appropriate steps for filling of the vacancies of the officials in order to meet all such exigencies.
Having said so, we may also put on record that the State Government can still frame laws in case it finds that the provisions which do exist are inadequate to meet this situation keeping in view such laws which have been made in other States including the Tamil Nadu Prohibition of Harassment of Women Act, 1998 and the Goa (Rights of Citizens to Time-Bound Delivery of Public Services) Act, 2013. Not only this, the framing of laws cannot alone bring about an end to this menace or problem that is being faced by the female population of the State. In our considered opinion, it is the duty of the every citizen as well as of the State to come to the aid of women keeping in view the provisions contained in Article – 51A (e)(j) of the Constitution of India which provides that it shall be the duty of every citizen to renounce practices derogatory to the dignity of the women. The action taken by the State Government can be a signal project informing the citizens of this State that the time has come when they also have to rise to the occasion to act in the aid of the Constitution by educating and informing their children to observe moral discipline. Consequently, we dispose off this writ petition with a direction to the respondents to ensure that the law is abided by in terms as prescribed and in terms of the guidelines that have been framed. It shall always be open to the respondent – State as well as the Director General of Police to take into account any such discrepancy or alleged excess that may be reported to the respondents in order to rectify the manner of policing in this context.
The writ petition is disposed off with the said directions.
We may put on record an appreciation for our law clerks Ms. Aditi Bhatt and Ms. Annapurna Trivedi who have assisted us in our research to enable us to dispose off the matter with promptness.