Supreme Court Legal Aid Committee Vs. State of Bihar and ors. - Court Judgment

Excerpt:
- [s.m. sikri, c.j.,; a.n. ray,; d.g. palekar,; i.d.dua and; m.h. beg, jj.] the mulki rules promulgated by the nizam of hyderabad before the merger of that state with india laid down certain qualifications as to residence in the state for the, purpose of appointment to the state services. after the states reorganisation act 1956 the telangana area of hyderabad state and the state of andhra were: combined to form the new state of andhra pradesh. the respondents who were officers in :he department of industries in andhra pradesh and were adversely affected by the mulki rules filed writ petitions in the high court challenging the validity of the said rules. the high court, held these to be invalid. in appeal to this court by certificate the questions which arise for decision were : (1) were r. 1 (b) read with r. 3 of the mulki rules and art. 39 of the constitution, laws in force immediately before the commencement of the constitution in the territory of india ? (ii) were they continued it force by art. 35(b) of the constitution ? (iii) did they continue in force after the constitution of the state of andhra pradesh under the reorganisation of states act, 1956 ? (iv) did they continue or they stand repealed by s. 2 of the public employment (requirement as to residence) act 1957, notwithstanding that s. 3 of the said act was declared void in so far as it dealt with telengana ? allowing the appeal, held : i) the words "laws in force in the territory of india" in art. 35(b) also occur in art. 372 which continue in force existing laws which existed not only in the provinces of british india but in all indian states. it would be remarkable if it were otherwise. in the context of art. 372 what has to be seen is not whether the state of hyderabad was part of the territory of india before the commencement of the constitution but whether its territory is included in india after its commencement. the same test applies to the old provinces or part of provinces of british india. [569h] janardan reddy v. the state, [1950] s.c.r. 940, distinguished. (ii) this court interpreted art. 16(3) in narasimha rao's case to mean that it speaks of a whole state as the venue for residential qualification., it cannot be said that the impugned mulki rules could not be provided for by parliament under art. 16(3). they are with respect to the matter referred to in art 16(3). article 16(3) confers legislative power on parliament with respect to matter mentioned therein. it confers no less power than arts. 245-246 do, read with list i and list iii. the impugned rules prescribed requirements as to residence ,he whole of hyderabad state and therefore are saved and continued in force by art. 35(b). merely because certain-other mulki rules became void on the commencement of the constitution the impugned rules could not be said to have also become void because art. 35(b) expressly saves laws like the impugned rules. effect must be given to the intention clearly expressed in art. 35(b). [570e] narasimha rao v. the state of andhra pradesh, [1970] 1 s.c r. 115, applied. (iii) the impugned rules continued in force even after the constitution of the state of andhra pradesh under the re-organisation of the states act, 1956. on the terms of art 35(b) the only proper question to be asked is 'has parliament in exercise of its powers under art. 35(b), read which art. 16(3), altered or repealed or amended the impugned rules ?" that this is the proper question follows from the words "notwithstanding anything in the constitution". this expression equally applies to art. 35(a) and art. 35(b). in art. 35(b) the effect of these words is not only to continue the impugned rules but to continue them until parliament repeals, amends or alters them. it seems to us that the effect of reorganisation of states made under arts. 3 and 4 of making telengana a part of a new state has to be ignored under art. 35(b); otherwise a fundamental right conferred on persons under art. 35(b)-it must be remembered that art., 35(b) is a part of the chapter on fundamental rights-would be liable to be taken away by the reorganisation of states. it cannot be denied that the purpose of reorganisation of states is not to take away fundamental rights. [571c] (iv) section 2 of the public employment (requirement as to residence) act 1957 act is not severable from s. 3 which was struck by the court in narasimha rao's case. it is clear that parliament would not have enacted s. 2 without s. 3 as far as telengana is concerned. the whole history of the legislation its object tide and the preamble to it point to that conclusion. further. the constitution (seventh amendment) act 1956, substituting art. 1 for the old also shows that it was intended to give special consideration to the telengana region. [573g-h] principles laid down in r.m.d. chamarbaugwala v. union of india. [1957] s.c.r. 930. held applicable. the contention that s. 2 insofar as it dealt with telengana region cannot be given an independent existence was not acceptable. it is only a matter of drafting and if the telengana. region had been dealt with separately in a separate act it could without hesitation be held that s. 2 would fall with s. 3. the fact that s. 2 deals with laws and rules in various states would not prevent the separation of the valid portion from the invalid portion. this court specifically held in narasimha rao's case' that s. 3 was bad insofar as it dealt with the telengana region. section 2 must also be held to be bad insofar as it dealt with telengana area. [574b-d]. (v) whether the mulki rules were unjust to the respondents was a matter for parliament to decide. this court was only concerned with their validity. [574e]order1. this is an application under article 32 of the constitution on behalf of the supreme court legal aid committee alleging on the basis of information published in the illustrated weekly of india of july 1, 1989, inhumane behaviour meted put to a person in police custody. on notice being issued an affidavit was filed by a deputy superintendent of railway police. jamalpur within the state of bihar narrating the details of the incident in which the victim mahesh mahto had been injured when the passengers of a railway train, where looting had been done by a crowd, had beaten up several persons including the victim. mahesh had received serious injuries and had to be taken to the hospital for treatment. as no transport was available a rickshaw was hired for the purpose of removing the injured to the hospital. by then the injured had become unconscious and the havaldar tied him with rope to the footboard of the rickshaw. the counter-affidavit accepts the position that no timely treatment was provided to the injured. had proper attention been given the injured could perhaps have been saved from the clutches of death. it appears that disciplinary proceedings have been taken against the delinquent havaldar. since this affidavit was not considered sufficient by this court a further affidavit was filed along with a copy of the post-mortem report after me victim died.2. we are surprised that the state has not considered it appropriate in the facts and circumstances appearing in the record to take a serious view of the matter as it deserved. as the affidavits of the deputy superintendent indicate if appropriate attention had been given and timely medical care had been provided the life of the victim could perhaps have been saved. it is the negligence of the havaldar that has led to the death. it is the obligation of the police particularly after taking a person in custody to ensure appropriate protection of the person taken into custody including medical care if such person needs it.3. taking note of the facts and circumstances appearing on the record, we direct that the compensation of rs. 20,000/- such a sum is ordinarily paid in the case of death -shall be paid by the state of bihar to the legal representatives of mahesh mahto. the amount shall be deposited with the district judge, manger and the district judge directed to institute a proper inquiry to satisfy himself as to who the heirs of the deceased mahesh mahto are. the amount of rs. 20,000/- shall be paid to them by the district judge and in case he is of the view that the money should be held in a long term fixed deposit in favour of the rightful heir it is open to him to do so. a compliance report of this direction be furnished to the registry of this court within three months.

Judgment:
ORDER

1. This is an application under Article 32 of the Constitution on behalf of the Supreme Court Legal Aid Committee alleging on the basis of information published in the Illustrated Weekly of India of July 1, 1989, inhumane behaviour meted put to a person in police custody. On notice being issued an affidavit was filed by a Deputy Superintendent of Railway Police. Jamalpur within the State of Bihar narrating the details of the incident in which the victim Mahesh Mahto had been injured when the passengers of a railway train, where looting had been done by a crowd, had beaten up several persons including the victim. Mahesh had received serious injuries and had to be taken to the hospital for treatment. As no transport was available a rickshaw was hired for the purpose of removing the injured to the hospital. By then the injured had become unconscious and the havaldar tied him with rope to the footboard of the rickshaw. The counter-affidavit accepts the position that no timely treatment was provided to the injured. Had proper attention been given the injured could perhaps have been saved from the clutches of death. It appears that disciplinary proceedings have been taken against the delinquent havaldar. Since this affidavit was not considered sufficient by this Court a further affidavit was filed along with a copy of the post-mortem report after me victim died.

2. We are surprised that the State has not considered it appropriate in the facts and circumstances appearing in the record to take a serious view of the matter as it deserved. As the affidavits of the Deputy Superintendent indicate if appropriate attention had been given and timely medical care had been provided the life of the victim could perhaps have been saved. It is the negligence of the havaldar that has led to the death. It is the obligation of the police particularly after taking a person in custody to ensure appropriate protection of the person taken into custody including medical care if such person needs it.

3. Taking note of the facts and circumstances appearing on the record, we direct that the compensation of Rs. 20,000/- such a sum is ordinarily paid in the case of death -shall be paid by the State of Bihar to the legal representatives of Mahesh Mahto. The amount shall be deposited with the District Judge, Manger and the District Judge directed to institute a proper inquiry to satisfy himself as to who the heirs of the deceased Mahesh Mahto are. The amount of Rs. 20,000/- shall be paid to them by the District Judge and in case he is of the view that the money should be held in a long term fixed deposit in favour of the rightful heir it is open to him to do so. A compliance report of this direction be furnished to the Registry of this Court within three months.