pil on delhi gang rape case

8/22/2019 PIL on Delhi Gang Rape Case

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IN THE SUPREME COURT OF INDIACIVIL ORIGINAL JURISDICTION

I. A. NO. OF 2012

IN

WRIT PETITION (CIVIL) NO. OF 2012

In the matter of :-

Nipun Saxena & Anr. Petitioners

VERSUS

Union of India & ors. Respondents.

AN APPLICATION FOR PERMISSION TO APPEARAND ARGUE AS PETITIONER IN PERSON UNDER ORDER

XLVII OF SUPRME COURT RULES, 1966.

TO,

THE HON'BLE CHIEF JUSTICE OF INDIAAND HIS COMPANION JUSTICES OF THEHON'BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THEPETITIONERS ABOVE-NAMED

MOST RESPECTFULLY SHOWETH :


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SYNOPSIS & LIST OF DATES

The petitioner no.2 is public spirited upcoming lawyer

and petitioner no.1 is likewise fourth year law student of

National Law University, Delhi concerned with the rising

rate of crime namely rape of innocent women all over the

country. All the measures taken in this regard proved to

be ineffective till date and hence the need of fresh

innovative measures to check this menace. The first such

measure should be that all public and transport vehicle

should be fitted with GPS system and high security

registration plate with maintenance of log book of all the

destinations covered by such vehicles. All such vehicles

should carry the names and telephone numbers of theowners, drivers, conductors, cleaners in large size on the

back side of the vehicles. The second such measures is

that the Government should give encouragement to

employ more and more women as bus driver/bus

conductor and also to start taxi/auto service with women

under wheels so that women will have the option to

choose the transport of their choice.

The third such measure is to allot booths/small shops

and the bus stand/railway station/ shopping malls and

all along the major roads in the city to the women who

had earlier Police/ Army/Para-military background to

boost the confidence of the women.

The fourth such measures is to revive the system of

appointment of Honorary magistrate from the people of

repute to check the functioning of proper transport


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system and also to give the power and jurisdiction to

them to issue challans etc in the event of finding

violations of rules on the road. It has been seen in

practice in the past or all over India that there is no

complaint of sexual harassment from the petrol pumps/

food joints or take away zones/taxi/autos mend by the

women.

The fifth such measure should be a direction/suggestion

to the ministry of women and child welfare development

to encourage the participation of elderly people like

grandparents, in the families of those where both the

parents are working employees.

The sixth such measure is a direction/suggestion to the

ministry of home affairs and its police department to

revive the age old practices of beat constables which has

recently been substituted by patrolling by the police

vehicles( Mobile PCR) for the reason that the beat

constables are more effecting in gathering the

intelligence/inputs of bad characters of the area andchecking them in their ulterior motive and to boost

confidence among the masses about the law and order

situation.

Simple measures by the centre and the state government

can help us to contain the crime in general and heinous

crime of rape, robbery and murder in particular.The petitioner is constrained to file the writ petition

under Article 32 read with Article 14, 16(1) and 21 of the

Constitution of India as the Right to Dignity is severely


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threatened and also the right to protection if the same is

jeopardized.

The recent atrocity committed on 16th December, 2012

in Delhi where a girl aged 23 years was gang raped and

other instances of similar offence have led the Petitioner

to file the instant petition. The gruesome and heinous

manner in which the said crime was perpetrated has led

to the advancement of the instant petition wherein the

girl was brutally attacked with a blunt object and had

allegedly been raped thereafter.

The petitioner respectfully submits that four prominent

issues are critical to the instant case:

Firstly, the operation of private buses, especially those in

the nature of bearing an interstate license and their

travelling in late hours of the night, in and around

National Capital Region, poses a serious threat to the

safety and security of the travelers especially women and

female children, who equate them with the DelhiTransport Commission approved buses and board them

thereby putting their lives in great danger.

The Delhi Motor Vehicles Rules, 1993 provide for three

types of permit requirements, those which are DTC

CNG Stage and Contract Carriage Buses, Private CNG

Stage Carriage Buses, and Private CNG Contract Carriage

Buses under Rule 71 A, B and C respectively.


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Rule 48 defines the functioning of the State Transport

Authority which is endowed with the task of granting/

revoking/ cancelling the permits of a vehicle under Rule

61 which is read with Section 86 of the Motor Vehicles

Act, 1988, the authority being vested in the Secretary,

State Transport Authority or any person delegated in that

respect. In addition to such safeguards, Rule 95A furtherlays down special guidelines for educational institutional

buses and omnibus transport vehicle carrying school

children.

However the plight of such operations is that private

buses usually act in contravention of Section 84 of the

MV Act, which inter alia provides for the identity of the

bus operators to be painted in a legible form, in addition

to the stricture imposed on driving beyond the daily duty

hours, or after the course of employment. The

implementation of the said provisions and ensuring their

compliance is a grave hurdle, from which the drivers and

other agents reap benefit. With a heavy dependence on

Transport Buses by over 70 % of the total population of

Delhi, the risk to their life and security becomes

unimaginable, especially in the wake of the recent

egregious and unfortunate event.

The Drivers and other operational staff of private buses,

with an intention of making additional profits carry out

trips in the areas, beyond their scope of employment, and

commit felonies of the nature that have been referred to


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above. With a burgeoning number of private buses, the

investigation, periodic review of the antecedents of the

drivers and other operators becomes difficult for the

State enforcement agencies to keep under its supervision.

The Honble High Court of Delhi in the case of Court on

its own motion v Union of India and Others. in W.P. (c)

No. 16565 / 2006 has also underscored the importance

of the said problem by giving directions to the State

Transport Authority to make appointments of the drivers

on the basis of minimum 10 +2 qualification so as to

condition a better and responsible behavior towards their

passengers. Another reason for a genuine identification

requirement stems from the fact that the licenses arebeing sold and the buses are being operated by the

persons other than the persons, who were awarded the

license as the licenses are being sold by indirect process

after taking huge money.

This leads to a greater mental assurance to the

perpetrator while giving effect to crimes as heinous as

rape. The untracebility of the said offenders who hold

interstate permits and move freely into other states

further exacerbates the procedure for conducting

investigation. It is therefore quintessential and urgent

that owing to such a humungous number of private

buses operating without valid licenses or under sold

identities, should be brought to book, and immediate

action should be initiated against the perpetrators by

cancellation/ revocation of their licenses in addition to


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booking them under other offences embedded in the

Motor Vehicles Act, 1988 or Indian Penal Code, 1860. In

pursuance thereof, it is most humbly requested before

this Honble Court, to direct the State Transport

Authority and the Police agencies to immediately cancel

and revoke the licenses and permits of the buses which

operate at odd timings and conduct their businesswithout the authority of law.

Secondly, It is further most humbly submitted before this

Honble Court that keeping in view of the dispensing

mechanism of the Criminal justice delivery system, there

is a compelling need for the establishment of a formalcompensatory mechanism for victims called the Criminal

Injuries Compensation Board (hereinafter referred to as

CICB) which provides for instantaneous and expeditious

monetary relief to the victim(s) of gruesome offences such

as rape. The case of Rudul Sah v State of Bihar, (1983) 4

SCC 141 and the case of Peoples' Union for Democratic

Rights (through its Secretary and Anr.) v. Police

Commissioner, Delhi Police HQs. and Anr. (1989) 4 SCC

730 stand as a testimony to the veracity of expansion of

right to life under Article 21. It has also been held by this

Honble Court that Right to a dignified life is inherent to

the very right enshrined under Article 21. Heinous

offences such as Rape are an egregious violation of this

Right to Life. It is therefore essential that there are

additional safeguards to ensure that the sufferers of such

traumatic offence are not subjected to post traumatic


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mental agony. It destroys the entire psychology of a

woman and pushes her into deep emotional crises. It is

only by her sheer will power that she rehabilitates herself

in the society which, on coming to know of the rape,

looks down upon her in derision and contempt. Rape is,

therefore, the most hated crime. It is a crime against

basic human rights and is also violative of the victim'smost cherished of the Fundamental Rights, namely, the

Right to Life contained in Article 21.

This Honble Court has in the causa celebre of Delhi

Domestic Working Womens Forum v. Union of India and

Others., (1995) 1 SCC 14, categorically laid down that for

offences as deplorable as Rape, a Criminal InjuriesCompensation Board should be established in addition to

the already contained provisions embedded within the

Code of Criminal Procedure. A further direction was

issued to the Central Government to ensure that such a

scheme is indispensable to achieve the objective of a

reformative judicial mechanism and that the same must

be implemented within six months from the date of the

decision. However, the elaborate guidelines pertaining to

the victim centric approach to deliver justice, has not

been effectively manifested by the Government of India.

The Court while rendering its judgment is empoweredunder Section 357 to award compensation to the victim.

However, throughout the length and breadth of the

provision, the wordings of the provision, if read literally,

give rise to two anomalies, namely: That there exists an


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element of judicial discretion, to the prejudice of the

victims right to be compensated. The second anomaly is

with respect to the establishment of offence to be a

prerequisite before granting such compensation. It is

most respectfully submitted that there may be instances

wherein the accused remains untraceable even if the

medical reports suggest that rape has been committed, orin other cases where due to lack of evidence a person

cannot be held guilty, however it is proven that there has

been a forceful penetration, in such category of cases, the

provision adumbrated under section 357 provides no

recourse to the victim. It is due to these factors, that it is

essential to establish a Criminal Injuries Compensation

Board which will primarily be entrusted with the task of

providing relief, both interim as well as final by taking

into account such factors as have already been laid down

by this Honble Court in the cases annotated above.

The order delivered by a division bench of this Court inthe Delhi Domestic Working Womens Forum (supra) had

specifically entrusted the task of setting up of CICB to

the National Commission for Women, which was its

legislative mandate under section 10. However, the same

has not been carried out so far, therefore it is implored

before this Honble Court to implead the Union of India

and the National Commission for Women as a

Respondent in the instant petition so as to account for

the delay in setting up of a scheme of such nature for

over sixteen years after the passing of the judgment.


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Thirdly, that it is respectfully submitted that the Honble

Court in giving effect to the Right to Speedy and fair trial

as being inherent to the Right to Life may be pleased to

establish Fast Track Courts for the expeditious disposal

of rape cases, particularly those in the nature of Gang

Rapes so that expeditious remedy can be provided tothem at affordable costs. This is in specific regard to

subject matter specific fast track courts, such as

instances of rape cases, wherein day to day proceedings

should be mandated which has been extrapolated in this

Honble Courts ruling in the case of Brij Mohan Lal v.

Union of India and Others. T.C. Case Civil No. 22 of

2001.

The instant writ petition under Article 32 read with

Articles 14, 21, 38, 39 and 41 of the Constitution has

been advanced in view of ghastly instances of violence

perpetrated at a burgeoning rate in India, and

particularly in metropolitan areas which is violation of

individuals right to life with dignity even though there is

a well organized system of Delhi Police operating in the

State of Delhi. Hence this Writ Petition.


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WRIT PETITION (CIVIL) NO. OF 2012Under Article 32 of the Constitution of India.

In the matter of:-

1.NIPUN SAXENA (student)National Law University, Delhi

2.ANKITA CHAUDHARY (Advocate)Petitioners

VERSUS

1.UNION OF INDIA THROUGH SECRETARY,MINISTRY OF HOME AFFAIRSNorth Block, Central Secretariat

New Delhi-110001

2.UNION OF INDIA THROUGH SECRETARY,MINISTRY OF WOMEN AND CHILD DEVELOPMENT

Shastri Bhawan, A-wing,

Dr. Rajendra Prasad Road

New Delhi-110001

3.SECRETARY, STATE TRANSPORT AUTHORITY,GOVT. OF DELHI,5/9 under Hill Road,

New Delhi-110054

4.NATIONAL COMMISSION FOR WOMEN11 Rouse Avenue Lane

Deen Dayal Upadhyaya Marg,

New Delhi-110002Respondents.


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WRIT PETITION UNDER ARTICLE 32 OF THECONSTITUTION OF INDIA

TO,THE HON'BLE CHIEF JUSTICE OF INDIAAND HIS COMPANION JUSTICES OF THEHON'BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THEPETITIONER ABOVE-NAMED

MOST RESPECTFULLY SHOWETH:

1. That the instant writ petition filed before this

Honble Court is in the nature of mandamus

seeking to direct the Secretary State Transport

Authority, Government of Delhi, the Central

Government and the National Commission for

Women to take necessary steps in curbing the

menace of rampant rape and other offences against

women.

2. The instant petition has been filed under Article 32

read with Article 14, 21, 38, 39 and 41 of the

Constitution, in view of the recent atrocity

committed on 16th December, 2012 in Delhi where

a girl aged 23 years was gang raped. The gruesome

and heinous manner in which the said crime was


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perpetrated has led to the advancement of the

instant petition.

3. That the petitioner is the citizen of India and have

locus to file the above writ petition under Article 32

of the Constitution of India in this Hon'ble Court.

4. That the petitioner respectfully submits that four

prominent issues are critical to the instant case.

Firstly, the operation of private buses, especially

those in the nature of bearing an interstate license

and their travelling in late hours of the night, in and

around National Capital Region, poses a serious

threat to the safety and security of the travellers,

who equate them with the Delhi Transport

Commission approved buses.

5. That the petitioner respectfully submitted before

this Honble Court that keeping in view of the

dispensing mechanism of the Criminal justice

delivery system, there is a compelling need for the

establishment of a formal compensatory mechanism

for victims called the Criminal Injuries

Compensation Board (hereinafter referred to as

CICB) which provides for instantaneous and


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expeditious monetary relief to the victim(s) of

gruesome offences such as rape.

6. That the above mentioned act is an animalistic act

which has taken place and a shocking incident and

the worst possible crime to have taken place.

7. That the petitioner submits that this is not a

petition that has been triggered by the sole

incidence of the alleged rape that took place on 18th

December, 2012 wherein a girl was attacked and

rape. These shocking incidents have shaken the

moral conscience of the society, and particularly of

the women who feel unsafe and unsecured to move

out of their homes.

8. That the petitioner, therefore, is advancing the

present writ petition under Article 32 of the

Constitution of India raising the following questions

of law:-

A. Whether there is a violation of Article 21 of the

Constitution of India which encapsulates the Right

to live with freedom and dignity?

B. Whether the failure of the State and its enforcement


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agencies in taking proactive steps to mitigate the

hardship caused to the victim and a consequent

failure in taking preventive measures to curb the

growing menace of Rape violative of the Right to Life

adumbrated under Article 21 which includes Right

to Human dignity?

9. That the aforesaid relief has been prayed for under

Articles 32 read with Articles 14, 21, 38, 39 and 41

of the Constitution of India before this Honble

Court as the state agencies have repeatedly failed to

take effective steps to provide for an effective

redressal to the women.

10. The petitioner has not filed any other similar writ

Petitioner before this Hon'ble Court or before the

Honble High Court for the relief sought herein.

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble

Court may kindly be pleased to:-

A)ISSUE a Writ of mandamus to the Secretary,State Transport Authority and the Commissioner

of Delhi Police to cancel / revoke license of such

permit holders who are in violation of provisions

of the Motor Vehicles Act especially in view of the


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recent increment in rapes, and to conduct

immediate inquiry into the antecedents of such

drivers/ license holders.

B)ISSUE a Writ of mandamus to the Union of Indiaand the National Commission of Women to file a

status report entailing the steps taken by them to

establish Criminal Injuries Compensation Board.

C)ISSUE a Writ of mandamus directing the CentralGovernment and NCW to take steps to set up a

Criminal Injuries Compensation Board in breach

of its order passed in Delhi Domestic Working

Womens Forum v. Union of India has resulted

into contempt of such order for over 16 years.

D)ISSUE a Writ of mandamus to the StateGovernments for the establishment of Fast Track

Courts to deal with specific instances of Rape

Cases throughout India.

E)PASS such other order or orders as this Hon'bleCourt may deem fit and proper in the facts and

circumstances of the present case;

AND FOR THIS ACT OF KINDNESS THE PETITIONER

SHALL EVER PRAY AS DUTY-BOUND


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Drawn & Filed by:

(ANKITA CHAUDHARY, NIPUN SAXENA)

Petitioners in Person

DATE OF DRAFTING: 20.12.2012

PLACE: New Delhi

FILED ON: 20.12.2012


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In the matter of :-


VERSUS


AFFIDAVIT

I, Nipun Saxena, presently at New Delhi, do herebysolemnly affirm and state as under :

1. That I am one of the petitioners in the Writ Petitionand well acquainted with the facts and

circumstances of the present case and in thatcapacity, competent to swear the present affidavit insupport of the present Writ Petition and theaccompanying List of Dates.

2.That the facts of the accompanying Writ Petition inparas 1 to from pages 1 to the synopsis is frompage No. A to and the I.A. for direction runningfrom page No.to of the Paper-Book have beenprepared under my instructions as well as read over

and explained to me and I say that the contents ofthe same are true and correct to my knowledge. Nopart of it is false and nothing material has beenkept concealed therefrom.

DEPONENT

VERIFICATION

Verified at New Delhi on this 20th day of December,

2012 that the facts stated in the above affidavit are true tomy knowledge. No part of the same is false and nothingmaterial has been kept concealed therefrom.

DEPONENT


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I. A. NO. OF 2012

IN


In the matter of :-


VERSUS


AN APPLICATION FOR DIRECTION UNDER ORDER


TO,


THE HUMBLE PETITION OF THE

PETITIONERS ABOVE-NAMED


1. That this is a petition under Article 32 of the

constitution of India, praying for the issue of direction,

orders or writ as may be appropriate for the

enforcement of fundamental rights by part III of the

constitution of India.


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2. That the petitioner craves leave of this Hon'bleCourt to refer to the contents of the writ petition at

the time of hearing of this application.

3. That it is in the interest of justice that the rights ofthe petitioner may be protected during the pendency

of their case in this Hon'ble Court and therefore

makes the following prayer for direction.

PRAYER

It is, therefore, most respectfully prayed that this

Hon'ble Court may graciously be pleased to :

a)DIRECT the Secretary, State Transport Authorityand the Commissioner of Delhi Police to cancel /

revoke license of such permit holders who are in

violation of provisions of the Motor Vehicles Act

especially in view of the recent increment in

rapes, and to conduct immediate inquiry into the

antecedents of such drivers/ license holders.

b)DIRECT the Union of India and the NationalCommission of Women to file a status report

entailing the steps taken by them to establish

Criminal Injuries Compensation Board.

c) HOLD that the failure of Central Government and


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NCW to take steps to set up a Criminal Injuries

Compensation Board in breach of its order

passed in Delhi Domestic Working Womens

Forum v. Union of India has resulted into

contempt of such order for over 16 years.

d)DIRECT the State Governments for theestablishment of Fast Track Courts to deal with

specific instances of Rape Cases throughout

India.

e) PASS such other order or orders as this Hon'bleCourt may deem fit and proper in the facts and




Drawn & Filed by:



DATE OF DRAFTING: 20.12.2012

PLACE: New Delhi

FILED ON: 20.12.2012


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I N D E X

SI. NO. P A R T I C U L A R S. PAGE NO.

1. LIST OF DATES. A

2. CIVIL WRIT PETITION ALONGWITHAFFIDAVIT. -

3. I. A. NO. OF 2012AN APPLICATION FOR DIRECTION


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In the matter of :-


VERSUS


WITH

I. A. NO. OF 2012AN APPLICATION FOR DIRECTION

PAPERBOOK(For Index : Kindly see inside)

---------------------------------------------------------------------------------------------------------PETITIONERS IN PERSON : ANKITA CHAUDHARY & NIPUN SAXENA

---------------------------------------------------------------------------------------------------------Filed On: 20.12.2012


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In the matter of :-


VERSUS


AFFIDAVIT OF URGENCY

I, Nipun Saxena, presently at New Delhi, do herebysolemnly affirm and state as under :

1. That I am one of the petitioners in the Writ Petition andwell acquainted with the facts and circumstances of the

present case and in that capacity, competent to swearthe present affidavit in support of the present WritPetition and the accompanying List of Dates.

2.That the matter is urgent and requires immediatehearing as in the wake of escalation in the incidence ofrape on hourly basis wherein the majority of suchheinous crimes of rapes, sexual assault have beencommitted on such contract buses which do not haveproper licenses and permission from the transport

authority and running on fraudulent identities withinthe knowledge of transport authority and police. Thatrecent crimes have all been committed are movingvehicles like cars/cabs, SUV, charted buses and also onprivate owned buses meant for public transport andtherefore to reduce/prevent such crimes against womenand especially students and working women. Thismatter needs to be heard immediately. The facts statedherein are true and correct to my knowledge. No part ofit is false and nothing material has been kept concealed

therefrom.

DEPONENT

VERIFICATION


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Verified at New Delhi on this 20th day of December,2012 that the facts stated in the above affidavit are true tomy knowledge. No part of the same is false and nothingmaterial has been kept concealed therefrom.

DEPONENT


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I. A. NO. OF 2012

IN


In the matter of :-


VERSUS


AN APPLICATION FOR PERMISSION TO APPEARAND ARGUE AS PETITIONER IN PERSON UNDER ORDER


TO,


THE HUMBLE PETITION OF THE

PETITIONERS ABOVE-NAMED


1.That today a petition under Article 32 of theConstitution of India, praying for the issue of direction,

orders or writ as may be appropriate for the

enforcement of fundamental rights by part III of the

Constitution of India has been filed.

2. That the petitioners may be permitted by this Honble


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court to appear and argue in person before this Honble

Court.

PRAYER

It is, therefore, most respectfully prayed that this

Hon'ble Court may graciously be pleased to :

A) PERMIT the petitioners to appear and argue inperson before this Honble Court by this

Honble Court and

B)PASS such other order or orders as this Hon'ble Courtmay deem fit and proper in the facts and




Drawn & Filed by:



FILED ON: 20.12.2012


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To,The RegistrarSupreme Court of India

Diary No. 42734W.P (C) 565/2012

Subject: Application for Urgent Hearing Before the HonbleChief Justice of India

Nipun Saxena & Anr. PetitionersVersus

Union of India & ors Respondents

Sir,

That the matter is urgent and requires immediate hearing asin the wake of escalation in the incidence of rape on hourlybasis wherein the majority of such heinous crimes of rapes,sexual assault have been committed on such contract buses

which do not have proper licenses and permission from thetransport authority and running on fraudulent identitieswithin the knowledge of transport authority and police. Thatrecent crimes have all been committed are moving vehicleslike cars/cabs, SUV, charted buses and also on private ownedbuses meant for public transport and therefore toreduce/prevent such crimes against women and especiallystudents and working women. This matter needs to be heardimmediately. In pursuance thereof we request you to kindlypermit us to raise our grievances before the Honble Chief

Justice of India as the date given by the Registry is11.01.2013 by which time it would be too late to initiate anypreventive measures especially in the wake of rapid incrementin instances of rape and sexual assault. We have observed therequisite formalities by attaching an urgency affidavit with thewrit petition.We therefore implore you to kindly consider it as an urgentmatter and list it today.

Thanking you.

Petitioners-in-Person

Nipun SaxenaAnkita Chaudhary

pil on delhi gang rape case

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