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[A.F.R.] Court No. - 1 Case :- P.I.L. CIVIL No. - 6907 of 2017 Petitioner :- Rituraj Mishra Respondent :- Govt. Of U.P. Thru. Its Chief Secy. Civil Sectt. Lko. & Ors. Counsel for Petitioner :- Ayodhya Prasad Mishra Counsel for Respondent :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Sanjay Harkauli,J. Heard Shri Mishra, learned counsel for the petitioner. This Writ Petition has been filed praying for framing rules and laws and guidelines in respect of the recent pronouncement on the Executive side by the Government for taking the steps to curb such activities that has led to the FORMING of an Anti-Romeo Squad. Raising the issue from the point of view of violation of fundamental rights Writ Petition No.6779 of 2017 was filed as a Public Interest Litigation (PIL) where a detailed judgment has been delivered by this Court extracted hereinunder:“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

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exercising their right of freedom of movement and expression. Shri Gaurav Gupta, 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

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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 hereinunder:eq [ ;ky; iq f yl egkfuns' kd] mRrj iz n s' k 1] fryd ekxZ y[kuÅ 2& eSaus ekSf[kd ,oa fyf[kr :i ls iwoZ esa bl ckr ij cy fn;k gS] fd lHkh lkoZtfud LFkyksa tSls& pkSjkgksa] ekdsZV~l] EkkWYl] ikdZ ,oa vU; LFkku] tks lkeU; tu ds iz;ksx gsrq gS] mudks vlkekftd rRoksa ls eqDr djk;k tk;A fo'ks"kdj bu lkoZtfud LFkkuksa dks efgykvksa@ckfydkvksa ds fy, lqjf{kr fd;k tkuk loksZPp izkFkfedrk dk fo"k; gSA bl y{; dh izkfIr ds fy;s fofHkUu tuinksa } kjk Anti Romeo Squads cuk;s x;s gSaA og ;g lqfuf'pr djsaxsa fd bu Squads esa miyC/krk ds vuqlkj vf/kd ls vf/kd la[;k es efgyk dkaLVscy dh M~;wVh lkns diM+ksa esa yxk;h tk; tks fd lgh lwpuk ns ldsa fpfUgr 'kksgnksa ds fo:) fof/k ds vUrxZr izHkkoh dk;Zokgh dh tk;A ;g lqfuf'pr fd;k tk; fd dk;Zokgh djrs le; cky dVok nsus] dkfy[k iqrok nsus] eqxkZ cuk nsus tSlh dk;Zokgh u dh tk; ftldk dksbZ fof/kd vk/kkj ugha gSA vxj dksbZ O;fDr ckj&ckj yM+fd;ksa ls NsM+&NkM+ tSlh gjdrsa djrk gS rks mldks lkekftd :i

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ls yfTtr djus ds fy;s dk;Zokgh djus ij fopkj fd;k tk ldrk gSA bl ckr dks Hkh Li"V djuk vko';d gS fd Anti Romeo Squads dsoy ,sls O;fDr;ksa ds fo:) dk;Z djsxk tks --esa ,sls tksM+ks ;k O;fDr;ksa ds fo:) dk;Zokgh ugha djsxk tks lkekftd ijaijkvksa ds nk;js esa jgrs gq;s vkil essa ikdZ@ekWy@dkQh gkml@flusek?kj bR;kfn esa fey&tqy jgs gksaA

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 hereinunder:eq [ ;ky; iq f yl egkfuns' kd] mRrj iz n s' kA la[;k% Mhth&vkB&81¼vi0vfHk0½@2017 lsok esa]

fnukad% y[kuÅ% ekpZ 25]2017

leLr ofj"B iq f yl v/kh{kd@iq f yl v/kh{kd] mRrj iz n s' kA d`i;k bl eq[;ky; ds lela[;d i= fnukad 22-03-2017 dk lUnHkZ xzg.k djus dk d"V djsa] ftlds ek/;e ls esjs }kjk ,UVh jksfe;ks LDok;M ds } kjk lkoZtfud LFkkuksa dks efgykvksa ,oa ckfydkvksa ds fy, lqjf{kr fd;s tkus gsrq funsZf'kr fd;k x;k FkkA mijksDr i= }kjk ;g Hkh funsZf'kr fd;k x;k Fkk fd mijksDr vfHk;ku lkns oL=ksa esa efgyk iqfyldehZ }kjk vkifRrtud gjdr djus okys O;fDr;ksa ,oa ,sls LFkkuksa dks fpfUgr djus ds ckn pyk;k tk;A blds lkFk gh ;g Hkh funsZf'kr fd;k x;k Fkk fd ,UVh jksfe;ksa LDok;M }kjk ,sls tksM+ksa ;k O;fDr;ksa ds f[kykQ dk;Zokgh ugha djsxk tks lkekftd ijEijkvksa ds nk;js esa jgrs gq, lkoZtfud LFkkuksa ij fey&tqy jgs gksaA bysDVªkfud@fizUV@lks'ky ehfM;k esa izdkf'kr [kcjks }kjk ;g laKku eas vk jgk gS fd bl vfHk;ku ds uke ij iqfyl Vheksa }kjk vke yksxksa ds lkFk xSj fof/kd dk;Zokgh djrs gq, vlqfo/kk mRiUu dh tk jgh gSA ;g Hkh laKku eas vk;k gS fd dqN izkbosV O;fDr;ksa ,oa laxBuksa }kjk Hkh xSj fof/kd :i ls bl vfHk;ku dks pyk;s tkus dk iz;kl fd;k tk jgk gSA blls Li"V izrhr gksrk gS fd iwoZ esa fn;s x;s funsZ'kksa dk u rks ofj"B vf/kdkfj;ksa }kjk laKku fy;k x;k u gh v/khuLFk vf/kdkfj;ksa dks leqfpr czhfQax dh x;h gSA ek0 eq[;ea=h th }kjk iqfyl dfeZ;ksa }kjk fd;s tk jgs bl izdkj ds O;ogkj ds izfr l[r ukjktxh O;Dr dh x;h gSA vr% iqu% funsZf'kr fd;k tkrk gS fd%& 1& fdlh Hkh tuin esa vfHk;ku pyk;s tkus ls iwoZ lkoZtfud LFkkuksa ij ¼Ldwy] dkyst] cktkj] ekWy] ikdZ] cl LVS.M] jsyos LVs'ku vkfn½ vkifRrtud gjdr djus okys O;fDr;ksa ds lEcU/k esa lkns oL=ksa esa efgyk iqfyl dfeZ;ksa }kjk fuxjkuh djkus ds mijkUr gh dk;Zokgh dh tk;A 2& fdlh Hkh lkoZtfud LFkku ij cSBs gq, tksM+ksa ls vuk;kl vkbZ0 dkMZ0 ekWxuk] iwNrkN djuk] ryk'kh ysuk] mBd cSBd djokuk] eqxkZ cuokuk tSlh dk;Zokgh ugha dh tk;sxhA 3& ,UVh jksfe;ksa LDok;M {ks=kf/kdkjh vius fudV i;Zos{k.k esa gh djok;sxsa ,oa tuin ds vU; ofj"B vf/kdkjhx.k le;≤ ij mijksDr dk;Zokgh dk vuqJo.k djrs jgsaxsaA 4& izfrfnu vfHk;ku gsrq fudyus ls iwoZ ,UVh jksfe;ks LDok;M dh czhfQax ofj"B vf/kdkfj;ksa }kjk dh tk;sxhA 5& vfHk;ku esa layXu Vheksa }kjk mijksDr dk;Zokgh esa izkbosV O;fDr;ksa dks 'kkfey ugha fd;k tk;sxkA 6& vkifRrtud xfrfof/k;ksa esa fyIr O;fDr;ksa dks dM+h fgnk;r nsrs gq, izkFkfed :i ls muds fo:) lq/kkjkRed dk;Zokgh dh tk;A mijksDr funsZ'kksa dk mYya?ku djus ij lEcfU/kr Fkkuk/;{k@{ks+=kf/kdkjh ,oa ofj"B vf/kdkfj;ksa ds lUnHkZ esa izfrdwy eUrO; viuk;k tk;sxkA ¼tkohn vgen½

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iqfyl egkfuns'kd] mRrj izns'kA

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:-

vkns' k ¼,UVh jksf e;ks a ny½ bl dk;kZy; ds lela[;d vkns'k fnukad 21-03-2107 ds ek/;e ls **,UVh jksf e;ks ny** dk xBu fd;k x;k FkkA dqN iqfyl dfeZ;ksa }kjk vfr mRlkg esa vuko';d :i ls lkoZtfud LFkkuksa ij cSBsa ckfyx iq:"k o efgykvksa ls iwNrkN dh tk jgh gS rFkk muds vkbZ0 dkMZ0 psd fd;s tk jgs gS] ftlls og vlgt eglwl dj jgs gSaA esjs }kjk iwoZ esa Hkh funsZ'k fn;s x;s gS fd fdlh Hkh n'kk esa **Moral Policing** ugha dh tk;sxh rFkk lkoZtfud LFkku ij cSBs iq:"k o efgyk ls vuko';d :i ls iwNrkN ugha dh tk;sxh rFkk mBd&cSBd] dku idM+okuk o v'kksHkuh; Hkk"kk dk iz;ksx djuk] uSfrdrk dk ikB] mudh ohfM+;ksa xzkQh bR;kfn u dh tk;s] dsoy ,sls LFkku tgka ij vlkekftd rRoksa dk tekoM+k yxrk gks rFkk efgykvksa ls NsM+[kkuh@NhVkd'kh@psu Lusfpax dh fu;r ls vijkf/k;ksa dk ewoesUV jgrk gS] dsoy ,sls yksxksa dh Vksd&Vkdh] iwNrkN dh tk;A ;fn ,UVh jksfe;ksa ny esa fdlh Hkh dehZ }kjk vuko';d :i ls **Moral Policing** dk dksbZ Hkh izdj.k laKku esa vk;k ;k ehfM;k ds ek/;e ls ok;jy gqvk rks lEcfU/kr ds fo:) n.MkRed dk;Zokgh dh tk;sxhA ¼eafty lSuh½ i= la[;k% okpd@,l,lih&56¼,½@2017 ofj"B iqfyl v/kh{kd] fnukad% ekpZ 25]2017 y[kuÅA

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, 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 rightly pointed out by the learned C.S.C., 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

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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 hereinabove. 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

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through CCTV Cameras or even mobile phones in order to track any unlawful activity. If the said tracking is for 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 the 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 brining 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 surveillance by of 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 occassion 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

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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.” This Writ Petition has been filed praying that harassment should not be the purpose of execution of any such stated objective as this would violate the fundamental rights of the citizens of the State guaranteed under Article 19 and 21 of the Constitution of India. A further

prayer

monitoring

has

authority

been in

made this

for

regard

establishing and

to

a

take

appropriate action if any discrepancy or any inadequacy is found in the implementation of the said scheme. We have considered the submissions raised and as noted above, the matter was disposed off in this regard by the judgment extracted above keeping in view the directives issued by the Director General of Police. In this case, the petitioner has again taken an objection to the name of the squad as Anti-Romeo Squad. We have already held that this is not a justiciable issue unless any offensive or punishable language is used. We may however explain about the objective of any such exercise being undertaken more particularly vis-à-vis the apprehensive attitude with regard to the naming of the Squad. Needless to say that ours is a multi-cultural society and India has always been described as a ‘unity amongst diversity’. The action which is being taken or is proposed to be implemented is in order to protect the weaker sex

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from being subjected to any harassment or any incident that is likely to reach up to the stage of an offence and disturb the peace and harmony of the society. The object appears to be to prevent any mishap. For this, so far as the name of the Squad is concerned, it will be appropriate to remind the petitioner that Literature has to be studied in-depth before any criticism is made about any name for any such purpose. The play ‘Romeo and Juliet’ is known widely as that which Shakespeare had written as a romantic play, and which has been staged throughout the world and is also a subject

matter

of

study

of

English

Literature

in

Institutions including Higher Institutions. There are hardly people who know that this romantic theme with Romeo and Juliet as a duo, was borrowed and emanated about a century earlier in 1497 from a story that emerged in the Streets of Verona, Italy where poetry and

other

Shakespeare

anecdotes wrote

this

were play.

written, Apart

long from

before this

the

character of Romeo was depicted as a devoted and a committed person, may be for his sentimental reasons or his personal pursuit of any attribute relating to his nature. But, at the same time, those who study Literature and may have read ‘Romeo and Juliet’ often forget that the same play also depicts as to what a name is. In Act II Scene 2 of ‘Romeo and Juliet’ as authored by Shakespeare, recites, “What’s in a name? That which we call a rose, By any other word would smell as sweet.” Thus, all this hue and cry about a name having been used, has been raised without even referring to the context.

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The Government may have used the name to make it look more attractive, to make it captivating or also to catch the sentiments of the people. Such words are used at times to bring about an influence or create an impression about the purpose for which the name is being used. It is not to create any deception and the usage might be a matter of coincidence. At times a fascinating and inspiring name is used like an advertisement so that the caption of the words dwells on every tongue. It is not necessarily to be construed as a disparaging remark. This may also be a matter of understanding and also a matter of drafting inasmuch as those who know about a name may not know how to use it. A respected name can also be inappropriately used but it does not necessarily mean that it is with an idea or motive to adversely describe a particular culture or civilization. That apart this also does not give any rise for an interpretation by a Court of law. As a matter of fact, what appears is that the Government has come up with this idea of policing, which we have already described as ‘Preventive Policing’, in order to curtail incidents of eve-teasing. Eve-teasing incidents usually take place in and around institutions that are primarily for girls or universities or such places of public importance that are visited by females. The preventive

measure

is

to

prevent

any

annoyance,

irritation or cause any tension to any such member of the female sex while visiting such public places. Thus, it is for curtailment of an attitude that has developed in society leading to a sense of insecurity that the Government has taken steps by naming the Squad as Anti-Romeo Squad. This

necessarily

does

not

mean

that

the

State

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Government or the police is averse to the name and character of Romeo or that Romeo was an eve-teaser as understood in today’s context. If the christening of the squad has been done for such avowed honest purpose, then to co-relate it to an offence to Literature without understanding the contents thereof is totally misplaced and does not give rise to a justiciable cause. It does happen that when names are given then a tag is attached, and usually for other motivated reasons names are fastened by way of contempt even on certain virtues. Names have weight with the learned and the uncivil alike but it is the wise who make an inquiry into the legitimacy of it’s use. This may be a line of thinking in order to appreciate or criticize the christening of any such activity, which is a public activity in public domain, but such impressions are also subject to fair criticism and a different opinion, but that cannot be made a basis for an argumentative interpretation in a Court of Law so as to hold as to whether a name is good or bad. The job of the court is to find out as to whether the activity which is proposed to be taken has behind it a genuine motive in order to protect it’s citizens or not. We are therefore not persuaded to entertain this Petition without any further comments on the question relating to the name of the Squad as chosen by the State Government. Consigned to records with the said observations.

Order Date :- 3.4.2017 arnima [Sanjay Harkauli, J.] [Amreshwar Pratap Sahi, J.]