Petition - Bar & Bench

Petition - Bar & Bench

Bar & Bench (www.barandbench.com) DISTRICT : KOLKATA IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE W.P. No. (W) of ...

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DISTRICT : KOLKATA IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

W.P. No.

(W) of 2017

In the matter of :An application under Article 226 of the Constitution of India ;

And In the matter of :A

writ

in

the

nature

Mandamus,

of

Certiorari,

Prohibition and/or any other writ or

writs,

order

or

orders,

direction or directions;

And In the matter of: Impugned order in the form of message

and/or

instruction

Bar & Bench (www.barandbench.com) 2

dated

23.08.2017

twitter

of

Minister

the

posted

Hon’ble

restraining

the

on

Chief idol

immersion of Goddess Durga on 30th

September,

2017

(till

Dasami,

due

to

6p.m.)

celebration of Muharram on the same day;

And In the matter of: Illegal restriction

and

unreasonable

imposed

through

electronic media on a particular religious

sect

and

thereby

hurting the sentiments of the Hindus at large;

And In the matter of :1. Youth Bar Association of India (Regd.), having its registered

Bar & Bench (www.barandbench.com) 3

office

at

B3,

LGF,

Jangpura

Extension, New Delhi - 110014.

2. Sanpreet Singh Ajmani, son of Sri Bhupendra Singh, National President

of

Youth

Bar

Association of India, having its registered

office

at

B3,

LGF,

Jangpura Extension, New Delhi 110014.

3. Youth Bar Association of India (Regd.),

West

through

its

Bengal

State

Wing,

President,

Kuldeep Rai, son of Sh. Pradip Kumar Rai, office address at Global Law Associates, 12, Old Post Office Street, Ground Floor, Kolkata - 700001.

4. Ricky Ray, son of Daniel Ray, Joint Treasurer of the Youth Bar Association

of

India

(Regd.),

Bar & Bench (www.barandbench.com) 4

West Bengal Wing, having its office at Global Law Associates, 12,

Old

Post

Office

Street,

Ground Floor, Kolkata - 700001. …



Petitioners

Versus 1. The

State

of

West

Bengal,

service through its Secretary, having office at Nabanna, 325, Sarat Chatterjee Road, Shibpur, Howrah - 711102.

2. Ministry of Home Affairs, through its

Principal

Government

Secretary,

of

West

Bengal,

having office at Nabanna, 325, Sarat Chatterjee Road, Shibpur, Howrah - 711102.

3. Principal Secretary, Ministry of Home

Affairs,

Government

of

West Bengal, having office at Nabanna, 325, Sarat Chatterjee

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Road,

Shibpur,

Howrah

-

711102.

4. The Inspector General of Police, West Bengal, having office at Nabanna, 325, Sarat Chatterjee Road,

Shibpur,

Howrah

-

711102.

5. Commissioner of Police, Kolkata, Lalbazar, Kolkata - 700001. …..

……

Respondents

To The Hon’ble Mrs. Nishita Mhatre, Acting Chief Justice And Her Companion Justices of the said Hon’ble Court. The

humble

petition

of

the

petitioners above named most respectfully –

Sheweth:

1.

That the petitioner no. 1 is the association registered in the name of ‘Youth Bar Association of India’. The said Association

Bar & Bench (www.barandbench.com) 6

is registered under the Society Registration Act, 1860 and having its members throughout the Country.

Your petitioners crave leave to produce the said registration certificate at the time of hearing, if necessary.

2.

That your petitioners state that the petitioner No. 1 is an Association and petitioner No. 2, 3 and 4 are the post holders and

representatives

of

the

petitioner

No.

1.

The

said

association is a registered one and have been constituted to look after the welfare of the Advocates and to render services wherever necessary in the interest of public at large.

It is further stated that the aims and objects of the aforesaid Association is to organize law debates, law seminars from time to time, to promote legal awareness among the general public, to provide free legal aid to the poor litigants and also to fight for the legal cause of the public at large.

3.

That the Petitioners No.4 is duly been authorized to file the affidavit in the instant Public Interest Litigation by the petitioner no. 1 through the memorandum dated 07.09.2017.

A copy of the memorandum dated 07.09.2017 is annexed herewith and marked as Annexure- P1 to this petition.

Bar & Bench (www.barandbench.com) 7

4.

The petitioner no.3 is the President (WEST BENGAL WING) and the Petitioner No. 4 is the Joint Treasurer (WEST BENGAL WING)

of

the

‘Youth

Bar Association

of

India (Regd.)

respectively and are simultaneously practicing as lawyers at High Court Calcutta.

5.

That the petitioner no 1 had filed a Public Interest Litigation earlier before

the Hon’ble High

Court

of Judicature at

Allahabad where the Hon’ble Court was pleased to allow that and further commanded the State to upload each and every ‘First Information Report’ lodged in all the Police Stations within the territory of State of Uttar Pradesh in the official website of the Uttar Pradesh Police i.e. “www.uppolice.gov.in” as early as possible preferably within 24 hours from the time of lodging and further similar command was later on extended by the Hon’ble Apex Court for all the States vide an order dated 07.09.2016 in the Writ Petition (Crl.) No. 68 of 2016, which is also reported in Supreme Court Cases as 2016(9) SCC 473.

A copy of the order dated 07.09.2016 in the Writ Petition (Crl.) No. 68 of 2016 passed by the Hon’ble Apex Court is annexed herewith and marked as Annexure-P2 to this petition.

Bar & Bench (www.barandbench.com) 8

6.

Your petitioners state that on 23.08.2017 one status was aired from the Official Twitter account of our Hon’ble Chief Minister, West Bengal which speaks as “This year Durga Puja & Muharram fall on the same day. Except for a 24 hour period on the day of Muharram immersions can take place on October 2, 3 and 4. The said online status is stated hereinafter as the “impugned status”. Apart from this subsequently in a public meeting the Hon’ble Chief Minister further clarified her order which is available on the “Youtube Channel” to the effect that “On the auspicious day of Vijay Dashami immersion of idols

is

permitted

only

upto

6p.m.

and

thereafter

no

immersion of idols shall take place before 2 nd October, 2017.”

A print out copy of the said impugned status from the official twitter account of Hon’ble Chief Minister of West Bengal is annexed

hereto

and

marked

as

Annexure-P3

to

this

application.

7.

Your petitioners state that the major community’s religious sentiment is hurt airing such impugned status on the official social account since the Hon’ble Chief Minister’s twitter account is followed by millions of followers. Not only that but also the torrents of repercussions have shaken the religious sentiments to a large community of society and cast a

Bar & Bench (www.barandbench.com) 9

challenge

upon

the

equality

and

religious

freedom

as

guaranteed in the Constitution of India.

8.

Your petitioners state that due to the said impugned status the communal peace and harmony may also get affected or disturbed which is evident from the comments posted as a reply to the impugned status of the Hon’ble Chief Minister of West

Bengal.

It

is

further

stated

that

being

a

state

constitutional head it’s a responsibility of our Hon’ble Chief Minister to protect the right of each and every citizen as well as also to maintain the peace and harmony in the state as guaranteed in the Constitution of India.

A true print out copy of the comments posted as a reply to the impugned

status

is

annexed

herewith

and

marked

as

Annexure-P4 to this petition.

9.

Your petitioners state that the Hon’ble Chief Minister being one of the constitutional head of the State as well as public figure representing crores of citizens of India living within West Bengal

is

responsible

for

maintaining

and

discharging

constitutional duties bestowed upon the Hon’ble Chief Minister at its best.

Bar & Bench (www.barandbench.com) 10

10.

Your petitioners state that the Hon’ble Chief Minister is not supposed to take decision and/or post any such kind of status which amounts to disclose any intention not commensurate and/or

consequential

with

the

constitutional

duties

as

bestowed.

11.

Your petitioners state that any order passed by the Head of the State as that of the Hon’ble Chief Minister through electronic media is presumed to have a legal effect which is deemed to be mandatory upon the administration and the public at large any deviation from the guidelines provided and ordered in the said post may result in violation and/or noncompliance might be resulted in a penal consequences since the administration may avail the opportunity of referring the message posted in the form of order by the Hon’ble Chief Minister to suit their convenience in the name of legality.

12.

Your petitioners state that in today’s era when the social media holds the great impact on the public and sharing any such post and any message conveyed from the account of a public figure being legislative head, may adversely affect the society and may disturb communal peace and harmony which is evident from the replies/comments left on the instant impugned post of our Hon’ble Chief Minister.

Bar & Bench (www.barandbench.com) 11

13.

Your petitioners state that this is the usual practice of our Hon’ble Chief Minister to discriminate the different religious sects and hurt their sentiments with such discrimination. In the year 2016 the similar stand was taken by the said Chief Minister by way of public notification. She illegally tried to restrain the worshippers of Goddess Durga to immerse idols on the date scheduled for immersion as per the customs and rites prevailing since ancient times which was quashed and set aside by this Hon’ble Court.

14.

Your petitioners state that inspite of being well aware of the observation of this Hon’ble Court passed in the writ petition being W.P. No. 24471 (W) of 2016, W.P. No. 24488 (W) of 2016, W.P. No. 24153 (W) of 2016 and W.P. No. 24712 (W) of 2016 dated 06.10.2016 on the similar ground is the Hon’ble Chief Minister ignored the guidelines provided in the solemn order has again reiterated the stand taken in the year 2016 restraining the public at large from immersion of Goddess Durga from the scheduled customary date i.e. Bijoya Dashami which is illegal, arbitrarily and full of ulterior motive for political gain.

A copy of the solemn order dated 06.10.2016 is annexed herewith and marked as Annexure-P5 to this petition.

Bar & Bench (www.barandbench.com) 12

15.

Your petitioners state that our Constitution being Federal in nature and having secular value, almost every part of our country enjoy and celebrities their respective religious festival and simultaneously at the same time visiting the houses and premises of their friends belonging to other Communities since long. And in the event, the holy Eid can be celebrated with the Holy Dashami. There should not be and can’t be any harm in celebrating the Muharram and immersing the idols of Hindu Goddess on the same date. And it is obligatory and mandatory on the part of state’s obligation to protect the interests of religious sects and prevent the miscreants from creating any nuisance in the wisdom of celebration of their respective festivals in the name of apprehended breach of law and order cannot be a ground for restraining the immersion of Goddess on the scheduled date as per the customs prevailing since ancient times. Rather, in one event it is allowed to be enforceable, that will tantamount to unreasonable restrictions on the rights of a particular community to practice and profuse their religion which is contrary to and inconsistent with the provision of Constitution of India and particularly to the Part III as well as the preamble.

16.

Your petitioners state that after last year’s experience the Hon’ble Chief Minister of West Bengal representing the State

Bar & Bench (www.barandbench.com) 13

of West Bengal, has not published any official gazette and/or notification and/or bye laws and/or any other statutory and legislative instrument used as a formal means of declaration of the State.

17.

Your

petitioners

state

that

any

declaration

and/or

pronouncement and/or publication by any legislative head vide any official notification or by any other formal means and/or informal means as in the present case (by publishing any status in the social site, accessible to the mass public), is presumed to have a binding effect upon the public and followed

by

penal

consequences

in

the

case

of

non-

compliance.

18.

Your petitioners state that the impugned status published from the Official Twitter Account of the Hon’ble Chief Minister, being discriminatory in nature, the same should not be given any effect.

19.

Your petitioners state that the administrative machinery of the State of West Bengal should be restrained from availing official twitter account of the Hon’ble Chief Minister of West Bengal as an executable order and/or causing any penal consequence in the case of non-compliance with the content of the message.

Bar & Bench (www.barandbench.com) 14

20.

Your petitioners state that the holy Muharram and the holy immersion of Goddess Durga can be celebrated together side by side as both of these festivals have been concurrently celebrated in the past years and it is the duty of the State to safeguard the safety and security of the general public and to ensure peace and tranquility in the State of West Bengal.

21.

Your petitioners being aggrieved by and dissatisfied with the illegal, arbitrary, malafide and biased acts including the impugned status dated 23.08.2017 shared by the Hon’ble Chief Minister on the official Twitter Account beg to move this Hon’ble Court inter alia on the following amongst other

GROUNDS

I.

For that the acts of the respondents are illegal, arbitrary, malafide and biased in nature.

II.

For that after last year’s experience the Hon’ble Chief Minister of West Bengal representing the State of West Bengal, has not published any official gazette and/or notification and/or bye laws and/or any other statutory and legislative instrument used as a formal means of declaration.

Bar & Bench (www.barandbench.com) 15

III.

For that any declaration and/or pronouncement and/or publication by any legislative head vide any official notification or by any other formal means and/or informal means as in the present case (by publishing any status in the social site, accessible to the mass public), is presumed to have a binding effect upon the public and followed by penal consequences in the case of non-compliance.

IV.

For that the impugned status published from the Official Twitter Account of the Hon’ble Chief Minister, being discriminatory in nature, the same should not be given any effect.

V.

For that the administrative machinery of the State of West Bengal should be restrained from availing official twitter account of the Hon’ble Chief Minister of West Bengal as an executable order and/or causing any penal consequence in the case of non-compliance with the content of the message.

VI.

For that the holy Muharram and the holy immersion of idols can be celebrated together side by side as both of these festivals have been concurrently celebrated in the past years and it is the duty of the State to safeguard

Bar & Bench (www.barandbench.com) 16

the safety and security of the general public and to ensure peace and tranquility.

VII.

For that the entire acts of the respondents are violative of Article 14, 25 and 26 inasmuch as the federal structure and secular value of the Constitution of India.

VIII. For that the acts of State authority are against the Constitution of India.

22.

that the records pertaining to this case are lying in the office of the respondents which situates within the jurisdiction of this Hon’ble Court.

23.

Your petitioners state that this is the first Writ-Petition being filed by the petitioners and no other Writ-Petition has been filed by them in this Hon’ble Court or any other court arising out of same or similar cause of action.

24.

Your petitioners state that unless an order is made as prayed for herein, the public will suffer irreparable loss and injury.

25.

That this application is made bonafide and for the ends of justice.

Bar & Bench (www.barandbench.com) 17

Your

petitioners

therefore

humbly pray Your Lordship for an order that :

(a)

A

writ

in

the

nature

of

Mandamus do issue directing the respondents and each one of them not to give any effect to the

impugned

status

as

published on 23.08.2017 from the official twitter account of the Hon’ble

Chief

Minister

West

Bengal restraining the immersion of idols on the scheduled dated i.e. 30.09.2017 (till 6.00 pm) and 01.10.2017;;

(b)

A

writ

in

the

nature

of

Mandamus do issue directing the respondents and each one of them to take steps to remove the impugned status published on 23.08.2017 from the official

Bar & Bench (www.barandbench.com) 18

twitter account of the Hon’ble Chief Minister West Bengal;

(c)

A

writ

in

the

nature

of

Mandamus do issue directing the respondents and particularly the Police Authorities not to take any action in case of any immersion of idols on 30.09.2017 (till 6.00 pm) and 01.10.2017 against the devotees;

(d)

Rule NISI in terms of prayer (a), (b) and (c) above;

(e)

An order of injunction do issue restraining the respondents and each one of them from giving effect to the impugned status / post

shared from

account

of

the

the Hon’ble

official Chief

Minister of West Bengal dated 23.08.2017;

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(f)

Ad interim order in terms of prayer (d) above;

(g)

Such further order or orders be passed, direction or directions be given as this Hon’ble Court may deem fit and proper.

And your petitioners as in duty bound shall ever pray.

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Affidavit I, Ricky Ray, son of Daniel Ray, aged about 28 years, by faith– Hindu, by occupation– Advocate, working for gain as Joint Treasurer of the Youth Bar Association of India (Regd.), West Bengal Wing, having its office at Global Law Associates, 12, Old Post Office Street, Ground Floor, Kolkata - 700001, do hereby solemnly affirm and say as follows:1.

That I am the petitioner No. 4 in the instant writ petition and

as such I am well conversant with the facts and circumstances of the above mentioned case and I am duly authorized by the other petitioners to affirm this affidavit on their behalf and as such I am duly competent to affirm this affidavit. 2.

That the statements made in paragraph nos.

of

the foregoing petition are true to my knowledge and those made in paragraph No.

are my humble submission before this

Hon’ble Court.

Prepared in my office.

The Deponent is known to me. Clerk to :

Advocate.

Advocate.

Solemnly affirmed before me on this the day of September, 2017.

Commissioner All annexures are legible.

Advocate.

Bar & Bench (www.barandbench.com) 21

DISTRICT : KOLKATA IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE W.P. No.

(W) of 2017

In the matter of :An application under Article 226 of the Constitution of India ; And In the matter of :Youth Bar Association of India (Regd.) …



Petitioners

Versus State of West Bengal and Ors. …



Respondents

WRIT PETITION

Mr. Somnath Adhikary, Advocate, High Court, Calcutta, Bar Association, Room No.16.