JUDGMENT
Imtiyaz Murtaza and Amar Saran, JJ.
1. We have heard learned Counsel for the petitioner, learned Advocate General and the learned Government Advocate.
2. Learned Advocate General states that there has been full compliance of our order dated 20.2.2007 whereby we have directed that the Gunners provided to 575 persons in two categories which include 331 persons in whose cases security had not been recommended by the District Committee and 244 persons whose files were in movement for withdrawal have been withdrawn. However, we find some ambiguity in paragraphs 4 and 5 of the affidavit dated 26.2.2007 filed by Kamal Saxena, Special Secretary, Home, Government of U.P., (hereinafter referred to as the affidavit), who is present in Court as to whether only orders for withdrawing security of the said persons have been passed or whether security has actually been withdrawn from them. We require a better affidavit specifying that security has actually been withdrawn from the said persons and the dates of withdrawal of security from them, on the next date of listing.
3. Learned Advocate General further states that in 48 Districts, out of the total amount that was due from the persons who had been provided security on payment amounting to Rs. 2,77,29,127/-, Rs. 2,76,78,656/- has been realized in pursuance of our earlier orders.
4. He further mentioned that a High Level Committee consisting of the Addl. Director General, Security and Addl. Director General, Law and Order and chaired by the Secretary, Home Department, Government of U.P. has been constituted to look into the eligibility or Otherwise and the validity of the orders granting security to various persons.
5. A list has been provided at Annexure-12, which shows that 674 persons have been provided security, not on the recommendation of the District Committee and consequential orders of the State Government, but they have been provided security by extraneous orders passed at the level of the SSP/SP or from some other level (which level has not been specified or identified in the affidavit). There seems to be no justification for continuing security to such categories of persons who have been provided security at the instance of extraneous sources which is not in accordance with the Government Order dated 25.4.2001.
6. We therefore issue a mandamus directing that security shall be withdrawn forthwith from the said 675 persons. This direction is subject to an exception that the Public Servants such as Engineers, Police Personnel etc. may be continued with security if their names are included in Annexure-12. We are making this exception because of the fact that honest officers are facing threats from Mafia and ‘Contractors with criminal antecedents and they are forcing such honest officers to pass illegal orders in their favour. It is the duty of the State Government to provide security to such honest officers so that they may perform their duties honestly and properly.
7. We also permit the High Powered Committee to examine other exceptional cases which are mentioned in the list (Annexure-12), where clear and immediate threat perception is brought to the notice of the High Powered Committee after assessment by the District Level Committee consisting of the D.M., SSP/SP and LIU Officers and after its approval by the State Government. However after any such exceptional cases are pointed out and the High Powered Committee is of the opinion that such persons should be granted security, the Committee will pass individual reasoned orders in those cases. The same shall be placed before this Court on the next date of listing and only on approval by this Court, security shall be provided to such persons.
8. In paragraph 8 of the affidavit it is mentioned that 121 persons were given security in pursuance of the orders of this Court and subordinate Courts and in six cases the security was provided after orders were passed by the Division Bench of this Court to consider the representations of the petitioners praying for Security/Gunners. Copies of the orders have also been annexed at Annexure-10 to the affidavit. We have briefly perused the said orders and we find that in most cases the said orders were passed several years ago yet the security given to such persons is continuing without any fresh appraisal of continuing threats to their lives by the District Committee and without fresh approval of the State Government. We think this is a wrong practice. In our view even the Courts cannot grant a carte blanche order of security for an indefinite period without considering the continuance of threat perception to the person. We may note that as per the Government Order dated 25.4.2001 a Committee headed by the District Magistrate which would also comprise of SSP/SP, and Dy. SP/Inspector LIU was constituted in each District for the assessment of the need for security for the applicants seeking security and in Clause VI of the said G.O. it is mentioned that the District Committee can only grant security for one month and thereafter for a maximum period of three months by two additional one month extensions. Any further provision of security could only be made by the State government on a recommendation by the District Committee under the signature of the SSP/SP. The security provided aforesaid (other than security to certain specified high officials) was to be reviewed on a monthly basis by the District Magistrate and the SSP/SP. Monthly reviews by the SSP/SP were to be passed on to the DIG Region who was to forward the same to the DGP. We doubt if this requirement in the G.O. is being followed. The State shall also point out in its counter-affidavit if this requirement of periodical review of provision of security is being seriously followed.
9. In the light of the aforesaid Government Order it appears that the indefinite grant of security by the orders of the Courts is unwarranted and in our view the said orders should have come to an end after lapse of a reasonable period of time.
10. In six cases where orders have been passed for consideration of their representations for security on petitions filed by persons in the High Court, we find that readily security has been granted to such persons by simply obtaining recommendations from the district level committees or the State Government that there is some political enmity against the applicant and security should be provided. Theoretically this is a simple way to grant State largesse in each case where the State/Ruling party wants to oblige a particular person. We think this is a highly improper use of the High Court’s direction and the Court wonders whether Government officials have not colluded with petitioners for such orders of the High Court as a back door means to grant security to undeserving persons.
11. We however find that what constitutes threat perception has not been defined in the G.O. dated 25.4.2001 or elsewhere, and consequently security is being provided to persons not because their cases are deserving but because of their closeness to the party in power or for other extraneous considerations, and the District level committees also readily pass orders to please political masters. This is a reprehensible state of affairs, because it erodes the faith “of the general public that governance is impartial or that there is a uniform Rule of law as they begin to see grant of security as a largesse distributed by the party in power to its men. We therefore think that it is necessary now that the High Powered Committee or the State Government lays down clear and cogent criteria as to what constitutes a real and live threat perception at a particular point of time and fixes the maximum period of time for which security can be provided to an applicant, so that he is not provided security indefinitely.
12. We therefore, direct that the High Powered Committee shall review the grants of security as per the new definition of threat perception mandated by our order hereinabove and after obtaining reports from the District levels and thereafter from the State Government according to the criteria for defining continuing threat perception and the period for entitlement, even in those case where security had been provided following Court’s orders.
13. It is further provided in Clause II of the G.O. that in ordinary course such persons shall not be provided security who are indulging in criminal activities and about whom it is feared that provision of security to them may be misused. Provision of security to persons with criminal antecedents also casts an impression that the State is interested in protecting criminals, which message should never be given out by a State which claims to be the protector of common citizens. We therefore think that the High level committee in its reviews should ensure that persons with criminal backgrounds are not readily granted security. Threats to the lives of such persons arise mainly because of their criminal pasts, which create enmities and attacks are made on these persons because the victims of their crimes seek revenge. If criminals are jailed and punished for their crimes, denied party tickets, and the general law and order situation improves for all persons and not only for the privileged who are provided gunners, the question of providing security to such criminal elements would not even arise.
14. We find that paragraph 8 of the affidavit mentions that in 44 cases security has been provided because such persons were witnesses or pairokars in criminal cases and to give them protection for giving evidence in Court. We do not know whether in such cases security is continuing to such persons even after the recording of their evidences or even after the conclusion of their trials. In such cases we think that the opinion of the trial Courts should be obtained as to whether according to the trial Courts further continuance of security to such persons is warranted in each case, because grant of security involves expenditure from the public exchequer which is incurred from an honest tax payer’s money. The Committee shall also review such cases and submit its report on the next date of listing.
15. It is mentioned in paragraph 7 that the reports of recovery for provisions of paid security has not been received from Meerut, Bulandshahar, Gautam Budh Nagar, Ghaziabad, Baghpat, Muzaffarnagar, Sitapur, Barabanki, Ambedkar Nagar, Varanasi, Chandauli, Jaunpur, Ghazipur, Azamgarh, Ballia, Mau, Mirzapur, Sonebhadra, Allahabad, Kaushambi, Fatehpur and Lalitpur. The recovery of the amount due should be affected from these districts and report of compliance should be presented before this Court on the next date of listing.
16. We also find that as per the chart furnished to us on the last date of listing i.e. 20.2.2007 in Column No. 5 there were 149 political workers with criminal records, 572 political workers, 38 contractors, 9 persons with criminal antecedents, 11 contractors and political workers and 4 contractors with criminal antecedents to whom security had been recommended by the District Committees. We desire that the High Powered Committee shall also consider the appropriateness of continuing security to these 783 persons strictly in accordance with the G.O. dated 25.4.2001 and the new definition of threat perception to be laid down by the Committee/Government and shall submit the report on this aspect also on the next date of listing.
17. List this case on 13.3.2007 for further orders.
18. Office is directed to furnish a copy of this order to the learned Government Advocate within 48 hours for compliance.