Punjab Istri Sabha and ors. Vs. Shri Surjit Singh Barnala, Chief Minister and anr. - Court Judgment

S.D. Bajaj, J.

1. Punjab Istri Sabha through its President and Secretary has approached this Court in public interest litigation obtaining in C. W. P. No. 4340 of 1986 filed under Article 226 of the Constitution of India for a writ of mandamus and or any other appropriate directions to the respondents to suitably enhance the quantum of compensation being paid to the families of victims of terrorist attacks in Punjab; to frame a uniform criteria for the grant of financial assistance to the next of kin of those killed by terrorists and also to award adequate assistance to those injured in such attacks resulting in temporary or permanent disability; to produce the record of a number of such families who have been rendered such financial assistance and the quantum of assistance given in each case by the respondents so far; and for the grant of such other relief which may be considered fit and proper in the circumstances of the case.

2. Relevant avernments made in the writ petition are 'that for the last 2-3 years, a large number of innocent persons have been shot dead by terrorists in Punjab, In fact, hardly a day passes without some persons being killed with impunity. There have been some major incidents in which passengers from the buses have been taken out and brutally murdered, This killing spree by trigger-happy desperadoes has been going on unchecked, that the State Government has totally failed in its basic and primary function of protecting the life and property of its innocent citizens, that since maintenance of law and order and protecting the life and property of citizens is a State subject, the respondents cannot escape their responsibility for failing to perform their basic duty, resulting in the death of hundreds of innocent persons at the hands of terrorists and the families of the victims being deprived of their source of livelihood, that judging from any angle, the amount of compensation decided upon by the State for families of those killed in terrorist attacks is too meagre and wholly inadequate, and that the procedure being adopted for payment of such compensation is also cumbersome and entails delay.

3. Besides, respondent No. 2 is discriminating between the employees of the police department and those belonging to other departments and there is no criteria laid down for determination of compensation- payable to the victimised families in accordance with their need and the earning capacity of the deceased member of the family.

4. A legal duty is cast upon the respondents to pay adequate compensation to the families of the victims of terrorists attacks in Punjab, to pay adequate compensation to those injured in such attacks and also to provide employment to one male member of the victimised families irrespective of whether the deceased was already in Government service or not. Due to the acute distress caused to a large number of the affected families in Punjab by the above mentioned policy decision of the State Government and this being a writ in the nature of public interest, it is a fit case where this Hon'ble Court should intervene in exercise of its extra-ordinary writ jurisdiction and issue appropriate directions to the respondents as prayed.' Prayer clause reads :-

'It is, therefore, most respectfully prayed that the following reliefs may kindly be granted :-

(a) a writ of mandamus be issued to the respondents to place the full list and the particulars of the families of the victims of terrorist attacks to whom compensation has been paid so far alongwith the amount of compensation that has been disbursed, the date on which the victim was killed and the time taken to disburse the amount ;

(b) a writ of mandamus be issued to the respondents to suitably enhance the amount of Rs. 20,000/- to Rs. one lac per family or such amount as this Hon'ble Court may consider to be commensurate with the present day economic condition so as to be on a par with the amount which would have been awarded to the dependents under Fatal Accidents Act or the Workmen Compensation Act.

(c) a writ of mandamus be issued directing the respondents to bear the entire costs of the treatment of those injured in terrorist attacks and pay suitable compensation to those who are disabled either temporarily or permanently in such attacks.

(d) a writ of mandamus or 'suitable directions be issued to the respondents to provide for the employment of one male member of the victimised families in Government service irrespective of whether the deceased was already in Government service or not.

(e) a writ of mandamus or appropriate directions be issued to the respondents to frame a proper criteria and procedure for the disbursement of the compensation amount to the members of the affected families so as to avoid delay and red-tapism. Particularly a direction be issued that the amount of compensation should be paid or offered within a week of the incident without the necessity of a certificate from the office of Superintendent of Police, except for reasons to be recorded in writing by the Deputy Commissioner in doubtful cases requiring an inquiry; and

(f) any other relief or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be issued'.

5. In reply both the then Chief Minister of Punjab as also the State Government asserted, 'Petitioners are neither the next of kin of any victim of terrorists nor their close relatives. Therefore, they have no locus-standi to file this writ petition. No cause of action has arisen against which the Writ Petition has been filed. It is therefore, prayed that the Writ Petition may be dismissed in limine. Petitioners have no locus-standi to file this writ petition, as none of them was directly affected by the Terrorists violence in Punjab. They are also not entitled to get relief, enhanced by the Punjab, Government, payable to the families of the victims of Terrorists attack, as according to Government instructions only the next of kin of victims are entitled to get the same. Punjab Government has already fixed a uniform criteria for the payment of relief to the next of kin of Terrorists victims. The State Government is discharging honestly, diligently and efficiently, its legal and constitutional obligations of protecting the life and property of the citizens of the State. Punjab Government is taking all necessary steps as warranted by law to meet the exigencies of the situation to deal effectively with terrorists and disruptionists and to curb all subversive, secessionist and any other kind of illegal activity. Besides this, wherever called for, the provisions of National Security Act and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act) are invoked for detaining ant) national elements. Deterrent action is thus taken against all those persons whose activities are such as would pose a threat to National Unity and Integrity. Various measures adopted by the Government from time to time are given due publicity through press and other media to the extent permissible in public interest Punjab Government have adopted a uniform criteria for giving relief to the next of kin of innocent persons killed by the terrorists. Before making payment to the next of kin, it is required to be verified through C. I. D./Police Authority that the person killed was not a Terrorist or their accomplice. All the relief disbursing authorities have been directed that relief be disbursed to the next of kin of the deceased, in no case later than 15 days from the date of death of the victim Copy of these instructions are appended herewith as Annexure R.-1. Every application submitted by the next of kin of the deceased is required to be got verified from Police and Revenue Authorities that the person killed was not a terrorist or their accomplice and relief is being paid to the legal heirs of the deceased. The Police verification envisaged under Government instructions is necessary to establish the fact that the killed person was not a terrorist or their accomplice and his death was not due to murder, as a result of personal enmity or some other sufficient cause. Police verification under these circumstances cannot be dispensed with. A person seriously injured is given an amount of Rs. 5,000/- depending upon the extent of injury. In the case of a person who has not been seriously injured but is hospitalised for treatment, the expenditure incurred on settling the hospital bills (other than diet charges) are reimbursed subject to the maximum of Rs. 2,000/- in each case. Police personal as a class ate distinguishable from the civilian Government employees particularly in the context of situation presently prevalent in Punjab, as they are exposed to far greater risks in the performance of their duties. Further, in a greater measure, they symbolise the Government authority coming in direct conflict and confrontation with the terrorists. Thus, apart from the usually arduous nature of duties the police personnel are being presently called upon to shoulder a far more difficult, risky and onerous duties as compared with those which they are expected to perform. To boots and sustain their morable and devotion in the performance of their duties, it has been considered essential to give them a higher ex-gratia grant vis-a-vis the civilian employees of the State Government. The Police force is a class in itself and their case is clearly distinguishable and the classification is reasonable. The amount of relief of Rs. 20,000/- for innocent civilians killed by terrorist action has been fixed after due consideration. The amount of relief was earlier Rs. 10,000/- which was subsequently enhanced to Rs. 20.000/-. The innocent civilians do not fall in the category of Police Personnel on duty and Government employees. Punjab Government is giving not only relief to the families of the victims of terrorists attack but also providing adequate compensation to those injured in such attacks. Punjab Government has also accorded Priority No. 1 to a member of the family of a person killed as a result of terrorist action in the State for giving Government employment to such families. As Punjab Government is already giving relief to the families of the victims of terrorist action besides Government employment, there is no locus standi for the petitioners to file the writ petition which may be dismissed in limine as already prayed for. For law point is involved in writ petition as State Government is providing adequate relief and Government employment not only to the next of kin of those killed as a result of terrorists acts, but also making payment to those injured in, such attacks and the property damaged by terrorists.

I have heard Shri U. S. Sahney, Advocate, for the petitioner, Shri H. S. Bedi, A. G. Punjab for the State and have gone through the material on record very carefully.

6. Adverting to the preliminary objection, learned Advocate General referred me to the observations made by the Supreme Court in K.V. Rajalakshmiah Setty and Anr. v. State of Mysore, A.I.R. 1967 S.C. 993, Mani Subrat Jain etc. etc. v. State of Haryana, A.I.R. 1977 S.C. 276 and Asif Hameed and Ors. v. State of Jammu and Kashmir, A I. R 1989 S. C. 1899 and urged that relief granted to the victims of terrorists violance in Punjab is in the nature of concession which cannot be claimed as a matter of right and writ of mandamus cannot be issued to the State of Punjab to show indulgence, that no one can ask for mandamus without a legal right and that when the Constitution gives power to the executive Government to frame policy in this regard, this Court has no' authority to divest the executive of that power. Relevant observstions read :-

'Before adverting to the controversy directly involved in these appeals we may have afresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recongnised under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.

Frankfurter, J. of the U. S. Supreme Court dissenting in (he controversial exptriation case of Trop v. Dulles (1958) 356 U.S. 86 observed as under : -

'All power is, in Madison's phrase, 'of an encroaching nature'. Judicial power is not immune against this human weak- ness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint......

Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence-requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand a loof and allow want of wisdom to prevail to discregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do

When a State action is challanged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercing power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.'

7. The argument is wholly without merit. Cases cited in support of it are of adversary litigation contradistinquished from public interest litigation. In regard to public litigation of the kind before the court it was held by the Supreme Court in Miss Lily Thomas v. President of India, A.I.R. 1982 S.C. 149, Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802 and M.C. Mehta and Anr. v. Union of India and Ors., (1987) I S. C. C. 395: -

'Before we proceed to consider the merits of she controversy between the parties in all its various aspects it will be convenient at this stage to dispose of a few preliminary objections urged on behalf of the respondents. The learned Additional Solicitor General appearing on behalf of the State of Haryana as also Mr. Phadke on behalf of one of the mine lessees contended that even if what is alleged by the petitioner in his letter which has been treated as a writ petition, is true, it cannot support a writ petition under Article 32 of the Constitution, because no fundamental right of the petitioner or of the workmen on whose bebalf the writ petition has been filed, can be said to have been infringed. This contention is, in our opinion futile and it is indeed surprising that the State Government should have raised it in answer to the writ petition. We can appreciate the anxiety of the mine lessees to resist the writ petition on any ground available to them, be it hypertechnical or even frivolus, but we find it incomprehensible that the State Government should urge such a preliminary objection with a view to stifling at the threshold an inquiry by the Court as to whether the workmen are living in bondage and under inhuman conditions. We should have thought that if any citizen brings before the Court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lesseas or contractors or employees or are being denied the benefits of social welfare laws, the State Government, which is, under our constitutional scheme, charged with the mission of bringing about a new socio economic order where there will be social and economic justice for every one and equality of status and opportunity for all, would welcome an inquiry by the Court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government. Even if the State Government is on its own inquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent conditions with all the basic necessities of life provided to them, the State Government should not baulk an inquiry by the Court when a complaint is brought by a citizen, but it should be anxious to satisfy the Court and through She Court, the people of the country, that it is discharging its constitutional obligation fairly and adequately and the workmen are being ensured social and economic justice. We have on more occasions than one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constructional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only so ensure observance of social and economic rescue programmes, legislative as well as executive framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the objectives.

Thus it was in S.P. Gupta v. Union of India, 1981 Supp. SCC 87 that this Court held that (SCC p. 210, para 17)

'Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability on socially or economically disadvantaged position, unable to approach the court for relief, any member of the public of social action group can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong injury caused to such person or determinate class of person ;

This Court also held in S. P. Gupta's case as also in PUDR v. Union of India (1983) 1 SCR 456 and in Bandhua Mukti Morcha case that procedure being merely a band-maiden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and therefore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono public would suffice to ignite the jurisdiction of this Court. We wholly endorse this statement of the law in regard to the broadening of locus standi and what has come to be known as epistolary jurisdiction.'

In this view of the matter preliminary objection raised on behalf of the State is rendered wholly without merit and is consequently overruled.

8. On merits it must be said that the maintenance of law and order is the primary duty of the State and under the Constitution it is a State subject and tops the State List. No Government worth the name can abdicate this function and put the life and liberty, the hearth and home of the citizens in jeopardy. Article 38 of the Constitution enjoins on the Stage to strive to promote the welfare of the people by securing and protecting, as effectively it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Under Article 19 (a) and (g) of the Constitution, any citizen of this country is entitled to reside and settle in any part of the Territory of India and to practice any profession or to carry on any occupation, trade or business. Article 21 lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. As pointed out by the Supreme Court in Bombay Pavement Dweller's case, A. I. R. 1986 S. C. 180, no person can live without the means of living, that is, the means of livelihood and the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Under Article 300A of the Constitution, no person shall be deprived of his property save by authority of law and to allow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation of the right to property guaranteed by the Constitution The terrorist victims form an integral part of the Indian Society : they have every right to settle down in Punjab and carry on their profession. They have the Constitutional right to live and they cannot be deprived of their lives, hearths and homes. Their right to property is inviolable All these Constitutional rights of the terrorist victims have been flagrantly infringed by the inaction of the law enforcing authorities. Fundamental rights are not mere brutum fulmen. They are throbbing aspirations and realities of civilised human life, they cannot be rendered desuetude or dead-letter or as observed by Bhagwati, J., as he then was, 'a paper parchment, a teasing illusion and a promise of unreality,' by the failure of the State to protect those rights. These unfortunate victims of terrorists' violence are, therefore, entitled to seek reasonable compensation from the State of Punjab which has failed in its duty to protect their Constitutional and legal rights.

9. Substantial reliefs asked for by the petitioner Sabha are (i) for raising the amount of compensation from Rs. 20,000/- to Rs. 1,00,000/- for every victim; (ii) bearing the entire cost of treatment of victims Injured in terrorist attacks and (iii) providing employment to one male member of the victim's family. Ancilliary reliefs are furnishing of a list of particulars of the families of the terrorist victims to whom compensation has been disbursed by the State Government so far along with the details of facilities offered and the time taken to disburse it, after the death of the victim and framing of a proper criteria and procedure for disbursement of compensation to the families of terrorist victims.

10. With reference to the observations made in Sebastian M. Hongray v. Union of India, A. I. R 1984 S. C. 1026 and M.K. Sharma and Ors. v. Bharat Electronics Ltd, (1987) 3 S. C. C. 231, it has been urged that compensation for human life ended through terrorist violence should be raised to Rs. 1,00,000/-instead of Rs. 20,000/- already paid by the State Government. None of the authorities cited is of terrorist victims and, therefore, all these three authorities neither individually nor collectively support the contention raised First one is of damages awarded in a case of civil contempt, the second one deals with payment of compensation for all effects of X-ray radiation on BEL workers and the third one pertains to damages awarded to a politician for his alleged illegal detention None of them, therefore, can suggest a suitable compensation payable to terrorist victims.

11. Learned Advocate General has referred me to the Manual of Instructions concerning relief and resettlement of Riot/Terrorist Victims, their next of kin and migrants issued by department of Revenue, Relief, Resettlement and Rehabilitation on 24th August, 1988 and the proceedings of the meeting held in this regard on 9th October, 1989 and satisfied me with reference thereto that a proper criteria and procedure for disbursement of compensation to the families of terrorist victims have already been evolved and prescribed by the State Government of Punjab. Second ancilliary relief prayer has thus no merit. Similary, the furnishing of list of terrorist victims' families along with the amount of compensation paid to them and the time taken by the State Government in disbursing compensation to the rightful claimants would in no way help the petitioners for claiming the substantial relief aforesaid. It would all be an exercise in futility, more so when the inordinate delay in the disposal of compensation claimed is being woefully acknowledged by the State Government and has been duly adverted to in the proceedings of the departmental meeting held on 9th October, 1989 'Prayer made by the petitioners for grant of both the ancilliary reliefs aforesaid is therefore, declined.,

12. Adverting to the three substantial reliefs, Steamed Advocate Genera! has apprised me that the committee of the Officers constituted by the State Government of Punjab for the purpose, have in their meeting held on 9th October, 1989 already recommended, the enhancement of ex-gratia grant to the families of terrorist victims from Rs. 20.000/- to Rs. 50 000/-. It has also been asserted that in suitable exceptional cases the State Government of Punjab has not lagged behind in awarding greater amount of compensation to well educated, socially well placed people and persons who had promising prospects in life. In this view of the matter, a mandamus is issued to the respondents to enhance the amount of uniform ex-gratia grant from Rs. 20,000/-to Rs. 50,000/- as recommended by its Officers Committee on 9th October, 1989 expeditiously but not later than 28th February, 1990. On legally sustainable grounds legal heirs of well educated, socially well paced and terrorist victims with promising prospectus in life, would continue to be paid/disbursed greater amount of compensation in suitable cases, as heretofore, in terms of the assurances extended by the learned Advocate General

13. As regards injured people; who get injured in terrorist attacks, the Officers Committee in their meeting held on 9th October, 1989 itself recommended that in case the injured in terrorist violence happens to be the Government servant, the State Government would reimburse to him the total amount of medical expenses. This is item No. 6 of their recommendations. It does not behave a welfare State to make this is invidious distinction in case of Government employees and other injured people. Persons inflicting injuries on both of them viz the terrorists are the same. The human being in the two categories of injured is also the same and both kind of injured aforesaid suffer equally after sustaining injuries at the hands of terrorists. Government servants, however, have alterative sources to reimburse their medical charges while the other category of victims who have sustained injuries can get themselves treated and cured only at State expense. Instead of restricting the relief to Rs. 2,000/- in case of minor injuries and Rs. 5,000/- in case of serious injuries, a mandamus is issued to the respondents to defray the entire costs of treatment to those injured in terrorist attacks and also to pay them suitable compensation both in regard to their temporary and permanent disablement as may be assessed by the prescribed medical authorities.

14. The State Government of Punjab shall also provide employment to an educated male member of the terrorist victim's family unmindful of the fact whether the victim was before his death in Government employment or not, It would not be out of place to mention here that the Officers Committee aforesaid have already made their recommendation No. 7 regarding offering of employment to educated male member of deceased victim's family who was already a Government servant. Similar benefit through this direction is being extended to others; who deserve the sympathy of a welfare State more than the Government employee because through the death of their bread earner as terrorist victim, they are rendered completely helpless. They need to be solaced and consoled and have to be provided a morsel of bread (even though not a full meal) through their adult male member of the family to sustain themselves. It is also ordered that the reliefs aforesaid would be disbursed by the State Government of Punjab to terrorist victims' family invariably within a period of three months from the date of the death of the victim. The red-tape/delay adverted to by the aforesaid Committee of Officers in para 1 (e) of their recommendations dated 9th October, 1989 should be taken care of and avoided by the State Government.

15. In result C.W.P. No. 4340 of 1986 succeeds and is allowed on the aforesaid terms. In the peculiar circumstances of the case there shall, however, be no order as to costs.