Pran Nath Lekhi vs Union of India and Others

B.C. Patel, C.J.—The petitioner, a practicing lawyer of this Court, has filed this petition, inter alia, praying as under:-

a) Declare sending our armed forces to Iraq, at the instance of the Government of United States of America or, of the "Authority" described as such in the United Nations Security Council Resolution No. 1483 (Annexure P1) would violate;

(a) the Constitution of India,

(b) be in disregard and defiance of Annexure P-5, which set out the policy and position the Union of India in Parliament (Rajya Sabha) while replying to starred question No. 673, and also of the

(c) unanimous resolution Annexure P-3, passed on 8.4.2003 by our Parliament, and hurt the

(d) the basic structure of the constitution.

(b) Issue order, direction or writ, in the nature of writ of mandamus, directing the Union of India, or any of its agency/agencies or body/bodies or authority/authorities or official officials functioning or working directly or indirectly under its administrative control, supervision and or directions, not to send our armed forces to Iraq except on the express request made by the General Assembly of the United National in accordance with the "Charter of the Unite Nations; or in the alternative,

(c) Issue order, direction or writ, in the nature of writ of mandamus, directing the Union of India, or any of its agency/agencies or body/bodies or authority/authorities or official/officials, functioning or working directly or indirectly under its administrative control, supervision and or directions not allow or permit our armed forces, if sent to Iraq, to function in any manner whatsoever, directly or indirectly, under the supervision, control or direction of the "Authority", described as such, in the US Security Council Resolution No. 1483 (Annexure P1) as such situation would reduce the President of India to a subordinate functionary under the President of the United States of America, which would violate our sovereignty and therefore be violative of the preamble of our constitution which is the basic structure of the Constitution.

The petitioner has averred in para 2 of the petition that he took part in struggle for independence. He was detained in 1940 when he had just appeared for his matriculation. His contention is that he suffered a lot to get the independence. He has pointed out his activities, when he was in his young age, at Lahore.

The petitioner read out para 33 of the reported decision in the case of Kihoto Hollohan Vs. Zachillhu and Others, , which reads as under:

The points raised in the petitions are indeed, far-reaching and of no small importance-invoking the "sense of relevance of constitutionality stated principles to unfamiliar settings:. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil.

He submitted that in view of the Resolution made by the Members of Parliament unanimously, direction must be issued by this Court as prayed for. For the said purpose, the petitioner drew the attention of the Court to Annexure-P3, which was at page 47 of the writ petition and read out the resolution which was adopted unanimously. The said resolution reads as under:- (translation)

Ventilating the national sentiments, this House deprecates (Ninda) the military action by the joint forces under the command of American forces against the sovereign State of Iraq. The military action aimed at changing the regime in Iraq is not acceptable. Suffering of the innocent people, particularly women and children as a result of the war is a serious human issue. The military action has been resorted without the special sanction of the Security Council of the United Nations and is against the Charter of the United Nations. Therefore, this House expresses profound grief and deep sympathy for the people of Iraq.

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This House also calls for immediate cessation of the war and for early pull out/return of the Allied forces.

This House also demands that the United Nations must ensure that the sovereignty of Iraq is preserved and that its re-building process be undertaken under the supervision of the UN.

The petitioner has placed reliance on the statement placed on the table of the House. From the statement it is clear that the Hon''ble Minister of External Affairs stated as under:-

Speaking in the specific context of Iraq, which was an issue before the Security Council on March 10, the UN Secretary General said "If the US and others were to go outside the Council and take military action, it would not be in conformity with the Charter.

The charter envisages use of force in case of self-defence or as authorised by the Security Council under Chapter VII.

The Government had expressed its sense of deep anguish at the resort to military action in Iraq, which in its view lacked justification and was avoidable. Government has been in contact with other Governments on a more effective role by the U.N. in avoiding such situations and in strengthening international peace and security.

The petitioner also relied upon Annexure-P6 at Page 51 were the Hon''ble Minister for State for External Affairs answered as under:-

The U.S. Government had made a request for expulsion of Iraqi diplomats from India on the ground of perceived threat by the United States to U.S. diplomatic personnel and facilities in India. Since there is no evidence of Iraqi diplomats engaging in activities incompatible with their diplomatic status, Government took no action on the U.S. request.

The Government has seen reports on expulsion of Iraqi diplomats from a number of countries.

That the petitioner has placed on record text of UN Resolution as Annexure-P1 on page 37. Relevant part thereof reads as under:-

Noting the letter of 8 May, 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command ("the Authority")

Noting further that other States that are not occupying powers are working now or in the future may work under the Authority.

Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority.

Concerned that many Kuwaitis and Third State Nationals still are not accounted for since 2 August, 1990.

Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security.

That the petitioner also read out certain paragraph from the petition and newspaper items to contend that the Union of India is likely to send troops to Iraq to act under the United States of America and United Kingdom of Great Britain and Northern Ireland. The petitioner contended that in view of the provisions contained in the Constitution of India, resolution made by the Parliament and the answers given by the Hon''ble Ministers before the House, if the troops are sent to Iraq, that would amount to nothing but subordination to foreign powers. The petitioner also relied upon some news item in the Daily Pioneer dated 21.3.2003 wherein statement made by the Hon''ble Prime Minister on 20.3.2003 is reproduced. The petitioner has averred in para 30 that the President of India is the supreme commander of the Armed Forces and therefore, according to the petitioner, at no level the command structure can be subordinated to any authority outside the authorities provided in the enactments dealing with defence forces. According to the petitioner, that would reduce the status of the President of India as subordinate to the President of United States and that would violate the basic features of the Constitution. The petitioner placed on record statements made by Prof. K.T. Shah and Prof. B.H. Khardekar which were made during the debate on Article 40 of the Draft Constitution. He has emphasised on the following paragraph:

It has, in the past history, been our common complaint, that we have been dragged against our will, without our consent, into the imperialistic, aggressive wars of Britain, Now, when we are free, now when we may claim to shape our own foreign policy, and determine our relations with other people ourselves.

It is the say of the petitioner that this statement is of K.T. Shah. Statement of Prof. Khardekar, which is reproduced on page 20, reads as under:-

If there is a morality amongst nations today it is the morality of robbers. If there is any law today it is the law of the jungle where might is right. That is why I think the part that India has to play and has played, is covered by Dr. Ambedkar''s amendment which has not only verbal elegance to recommend it but also the intention that the country should take to certain actions if necessary.

The petitioner drew the attention of the Court to some news report at page 59-B to point out that Mr. Marc Grossman, U.S. Under Secretary of State and Mr. Kanwal Sibal, India''s Foreign Secretary met and discussed on the subject matter of sending Indian Peace-keeping Force to Iraq.

The petitioner relied upon the Apex Court decision in the case of the State of Kerala Vs. Joseph Antony, where notifications were issued prohibiting fishing by mechanized vessels in territorial waters by use of gears like purse seine, ring seine, pelagic trawl and mid-water trawl. He drew our attention to para 28 and submitted that as there was imminent threat to source of livelihood of vast Section of society, the Court issued directions and, therefore, this Court should also in view of the imminent threat of sending armed forces to Iraq contrary to policy and the statement made before the House, Union of India must be restrained from sending the troops. In that case, there was material to show that there would be prevention of breeding offish which would lead to extinction of fish. Thus on this material with a view to protect poor fishermen population the Court expressed the views. There was question of protection of the interest of weaker section of the Society. The Court also found that it was also in the interest of general public and it was in view of this that the Court pointed out that there was reasonable restriction within the meaning of Article 19(6) of the Constitution.

As against this, on behalf of the respondent, it was pointed out that the petition is based on no material. It was pointed out that in the writ petition itself, there was nothing to show that any decision was taken to send the troops, as alleged, and, hence the petition deserves to be dismissed. Learned Addl. Solicitor General, Mr. Sood, submitted that the petition is based on newspaper reports and comments made by some politicians. It is clear that persons have expressed their political and personal views. It is known that views differ from person to person. Learned Addl. Solicitor General further pointed out that the petitioner has miserably failed to point out that any decision is taken by the Union of India. He emphasised that from the resolution (on page 47) adopted unanimously by the M.Ps., it is very clear that the House deprecated the attack on Iraq. Learned Counsel referred to the answers given by the Hon''ble Ministers at page 50 and 51, that UN Secretary General said that "if US and others were to go outside the Council and take military action it would not be in conformity with the Charter." The answer was again read in the Court and it was pointed out that the Government had expressed its sense of anguish at resort to military action in Iraq, which in its view lacked justification and was avoidable. It is clear that avoidance of such a situation and strengthening of international peace and security was emphasised.

Even U.S. Government''s request for expulsion of Iraqi diplomats from India on the ground of perceived threat by the U.S. to U.S. diplomatic personnel and facilities in India was turned down as there was no evidence of Iraqi engaging in activities incompatible with their diplomatic status and the government did not take any action on such a request. Pointing out the news item at page 59-B, counsel for Union of India submitted that there is no authentic material. He pointed out that the words: "he is believed to have discussed" is sufficient to disregard such material and is not required to be taken into consideration in a matter like this. He submitted that the Court cannot rely upon the newspaper information as it is hearsay and in newspaper views are expressed by some persons. He invited our attention to various annexures to point out that annexures are nothing but views of certain persons and on the basis of the opinion of such persons the Court should not entertain the petition. Even the reports are contradicting each other. Counsel pointed out that at page 62, there is opinion of a person in the newspaper. Pointing out that there was no specific request of deployment of Indian troops in Iraq by the U.S. or anything of that nature, the Ministry of External Affairs on the same day issued a denial that India received any formal request. In the next sentence it was stated that denial was in response to NDTV news report that a division of the Rashtriya Rifles was being readied to be sent to Iraq. It is pointed out that in the said article that India did not attend the meeting though a request was made for inducting a stabilization force on 30.04.2003 where representatives of 16 countries attended the meeting at London. In the said report, there are further reports.

Thus, it is clear that the Court is called upon to exercise its jurisdiction on newspaper reports or the opinion of different persons published in newspapers. We are not indicating various other annexures placed on record. Suffice it to say that all would amount to hearsay or opinion expressed by different people. On the opinion of different persons it would not be proper to proceed.

The newspaper report or evidence of the reporter is considered as only hearsay evidence. Section 78 of the Evidence Act does not refer to the newspaper report. As pointed out earlier, the report is nothing but views expressed by some persons. In the instant case, reading the different reports, it cannot be said that what is reported is the decision taken by the Government. A person publishing the report might be disclosing his own political ideas which may be close to the ideas of any party. It is also known that the statement of fact contained in a newspaper report is merely hearsay and therefore inadmissible in evidence; in the absence of any proof by evidence adduced. The case of Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, Apex Court has held that news items when published are garbled version and cannot be regarded as proof of what actually happened or said without other acceptable evidence through proper witness. In Laxmi Raj Shetty and Another Vs. State of Tamil Nadu, the Court considered the admissibility of the news item appearing the press report and laid down the dictum, which reads thus:-

As to the first, the accused Laxmi Raj Shetty was entitled to tender the newspaper report from the Indian Express of the 29th and the Regional newspapers of the 30th along with his statement u/s 313 of the Code of Criminal Procedure, 1973. Both the accused at the stage of their defence in denial of the charge had summoned the editors of Tamil dailies Malai Murasu and Makhat Kural and the news reporters of the Indian Express and Dina Thanthi to prove the contents of the facts stated in the news item but they dispensed with their examination on the date fixed for the defence evidence. We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached u/s 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein.

...A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it only to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.

It is difficult to take judicial notice of the facts stated in the news item being in the nature of hearsay, secondary evidence, unless proved by the evidence aliuned. A report in the newspaper is hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached u/s 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein.

On behalf of the UOI, request was made to refer to items published in the Asian Age of its edition dated 4.7.2003. The report of the newspaper reported that the government might not give green signal to the troops unless it is authorised through a fresh UN resolution. For the reasons indicated earlier, we would not like to place reliance on this news item as well. However, we would like to point out that the very fact that different versions of the likely action appearing in the newspapers is an indicator of the fact that it would not be proper to act on the basis of these newspaper reports. It may be relevant to point out, at this stage, that it has been now reported in all the newspapers that Government is not intending to send the troops to Iraq. If this reporting is correct, the apprehensions of the petitioner are, in any case, misconceived and it becomes abundantly clear that the petitioner whose undue haste to rush to this Court on the basis of some news items.

Before entertaining the petition under Article 226 of the Constitution of India, the Court has to consider various aspects. One should also remember that the Constitution provides legislature, executive and judiciary. Each one is required to work within its framework. Courts cannot interfere with the decisions which are essentially political in nature and come within the province of other wing of the State, unless some statutory or constitutional violation is shown. In the case of BALCO Employees Union (Regd.) Vs. Union of India and Others, the Apex Court considered Articles, 14, 16 and 311 of the Constitution. Reading para 93 and 47 of the judgement it is clear that in a democracy, it is the prerogative of each government to follow its own policy. It is clear that economic policies are ordinarily not amendable to judicial review unless it can be demonstrated that the policy is contrary to statutory provision or the Constitution of India. It is also clear from the judgment that unless any illegality is committed in the execution of the policy or the policy is contrary to law or malafide, interference is not called for. The Apex Court pointed out that for deciding the correctness of a policy, the appropriate forum is the Parliament and not the Courts. Here, in the instant case, there is no decision and in the absence of any decision, judicial interference by way of PIL is not made available. If there is injury to public because of dereliction of statutory or constitutional obligation on the part of the Government, one can request the Court. Every matter of public interest or curiosity cannot be a matter of PIL. The Apex Court has pointed out that the Court is not intended to and nor should they conduct the administration of the country. The Courts will interfere only if there is a clear violation of constitutional or statutory provisions or non compliance by the State with its constitutional or statutory duties. We find in the instant case no violation of anything whatsoever. Thus, we find no substance in this petition. The person who is filing the petition should know the nature of public interest litigation and the right of a person whether adversely affected or not. In the instant case, no decision has been taken so far and, therefore, there was no question of invoking the jurisdiction of the Court. We dismiss this petition but with no orders as to costs.