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IN THE HIGH COURT OF ALLAHABAD
S. C. MATHUR, V. KUMAR
MAHARSHI AVADHESH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
W. P. 10804 Of 1989
Decided On : 01/15/1990
CONSTITUTIONAL LAW - ARTICLE 370 - DISCRIMINATION - PUBLIC INTEREST LITIGATION - JURISDICTION OF COURT - WRIT OF MANDAMUS - REMOVAL OF PUBLIC SERVANTS - APPOINTMENT OF COMMISSION OF INQUIRY - AMENDMENT OF CONSTITUTION - ABROGATION OF ARTICLE 370 - EQUALITY BETWEEN CITIZENS - RELEASE OF TERRORISTS - ADMINISTRATIVE MATTERS - POLITICAL MATTERS - SUPERVISION OF COMPLIANCE.
Fact of the Case:
Petitioner filed a PIL seeking directions to the Prime Minister, Union Home Minister, Union of India, and others to hold inquiries, dismiss public servants, amend the Constitution, and take back lost territory from Pakistan. The petition arose from the abduction of Dr. Rubaiya Syed, daughter of the Union Home Minister, and the subsequent release of five hard-core terrorists in exchange for her release.
Finding of the Court:
The court held that the matters raised by the petitioner were either political, administrative, or of propriety and did not fall within the jurisdiction of a court of law. The court further held that it could not issue directions to the President to dismiss a Judge of the High Court, remove the Home Minister or the Prime Minister from office, or dismiss public servants from service. The court also held that it could not command the Government to appoint a Commission of Inquiry or amend the Constitution. The court further held that the issue of discrimination arising from Article 370 was a constitutional discrimination and could not be challenged. The court also held that the directions sought by the petitioner were mostly of a sweeping nature, vague, and generalized and could not be issued.
Issues: 1. Whether the court has jurisdiction to entertain a PIL raising political, administrative, or propriety issues? 2. Whether the court can issue directions to the President to dismiss a Judge of the High Court, remove the Home Minister or the Prime Minister from office, or dismiss public servants from service? 3. Whether the court can command the Government to appoint a Commission of Inquiry or amend the Constitution? 4. Whether the issue of discrimination arising from Article 370 can be challenged? 5. Whether the directions sought by the petitioner are vague, generalized, and cannot be issued?
Ratio Decidendi: 1. The court held that matters raised by the petitioner were either political, administrative, or of propriety and did not fall within the jurisdiction of a court of law. 2. The court held that it could not issue directions to the President to dismiss a Judge of the High Court, remove the Home Minister or the Prime Minister from office, or dismiss public servants from service because these were matters of discretion resting entirely with the respective authorities. 3. The court held that it could not command the Government to appoint a Commission of Inquiry or amend the Constitution because these were matters of legislative or executive discretion. 4. The court held that the issue of discrimination arising from Article 370 was a constitutional discrimination and could not be challenged. 5. The court held that the directions sought by the petitioner were mostly of a sweeping nature, vague, and generalized and could not be issued.
Final Decision: The petition was dismissed in limine.
( 1 ) - The petitioner Maharshi Avadhesh also known as A. B. Shorewala, who has described himself as Founder-President of Rashtrirya Party, has filed this petition seeking issuance of certain directions to the Prime Minister of India, the Union Home Minister, the Union of India and "others concerned" in respect of the matters specified in the prayer clause. At the time of hearing the petitioner, who argued the case in person, elaborated the term "others concerned" by submitting that notices of the petition may be issued also to Honble the Chief Justice of India and to a sitting Judge of this Court who till recently was a Judge of the High Court of Jammu and Kashmir. The directions, sought by the petitioner run into 19 clauses. In these clauses the petitioner seeks directions to hold inquiry or investigation into certain matters, directions to some holding high public offices to resign from the said offices, and directions to the concerned authorities to dismiss certain public servants and constitutional authorities from the posts or offices they are presently holding. The prayer extends even to directions to amend the Constitution and take back the lost territory of the country from the neighbouring country which is forcibly occupying the same.
( 2 ) ). The immediate provocation for the present petition appears to be the alleged abduction of Dr. Rubaiya Syed daughter of Sri Mufti Mohammad Syed, Union Home Minister, by terrorists and her subsequent release in exchange of five hard-core terrorists from police custody. The petitioner does not appear to be aggrieved by the release of Dr. Rubaiya Syed as he is by the release of alleged terrorists and the manner in which the formers release has been obtained. The facts stated by the petitioner are based on reports published in newspapers, extracts whereof have been filed as Annexures to the petition. The petitioner claims to have filed the petition in public interest. The public interest which the petition is claimed to serve is preservation of Nations sovereignty, security, integrity, dignity and honour, credibility of public services and impartiality, independence and credibility of countrys judiciary.
( 3 ) AS is well known the abduction of Dr. Rubaiya took place in the State of Jammu and Kashmir. The petitioner refers to the accession of that State to the Indian Union and the privileged position it was given in the Constitution which according to the petitioner has resulted in chaotic conditions developing in the State over the years and culminated in the abduction of Dr. Rubaiya Syed and release of hard-core terrorists.
( 4 ) ). Before independence the State of Jammu and Kashmir was an independent State with Maharaja Hari Singh as its ruling monarch. The petitioner states that soon after independence the State was invaded by the neighbouring country Pakistan which resulted in Maharaja Hari Singh rushing to Delhi seeking accession of his State to the Indian dominion as the State of the country at that time was. According to the petitioner the accession could have been accepted unconditionally but the then Prime Minister of the country unnecessarily put conditions in the accession and subsequently a privileged status was given to the State by incorporating Art. 370 in the Constitution. The petitioner describes this act as anti-national anti-people and treacherous. According to him our neighbouring country Pakistan has taken advantage of this situation and has smuggled men, arms and ammunition in the State through which terrorism has been created. The Government had arrested five terrorists, namely, Sher Khan, Hamid Sheikh, Noor Mohammed Kalwal, Mohammed Altaf Butt and Javed Ahmad Jargar. While these five terrorists were in custody on 8-12-1989, the daughter of the Union Home Minister was abducted by members of the Kashmir Liberation Front. Thereafter, it is claimed, there were negotiations between the representatives of the Government and the hard-core terrorists
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