Reputation Of An Individual Is An Insegregable Facet Of His Right To Life With Dignity: SC In Nambi Narayanan’s Case

To begin with, it is most hurting and most shocking to learn that a top eminent former scientist of the Indian Space Research Organisation (ISRO) was harangued, humiliated and harassed not in Pakistan or China or any other foreign country but in his own motherland that is India where he worked tirelessly by traitors who laughed endlessly as India's space programme suffered hugely and got behind by decades! Not just this, S Nambi Narayanan along with another former ISRO scientist D Sasikumar was arrested on November 30, 1994 and both spent 50 days in jail and were allegedly tortured in jail not by terrorists or dacoits but by police on charges of espionage. This was done at the behest of the State Intelligence Bureau Team in Thiruvananthapuram in Kerala. Neither the PM of India at that time nor the President of India at that time took any interest in this whole sordid saga whichwitnessed the worst torture of our top scientists of ISRO for reasons known best to them! This should never have been allowed to happen but it happened in reality what was thought earlier as unfathomable!

Needless to say, there can be no scintilla of doubt that the appellant who was a national top scientist having international reputation was compelled to undergo worst form of torture and false accusations which is a national shame! The Supreme Court, while ordering Rs 50 lakh compensation to former ISRO scientist Nambi Narayanan in this landmark judgment titled S. Nambi Narayanan v Siby Mathews & Others Etc In Civil Appeal Nos. 6637-6638 of 2018 delivered on September 14, 2018 by a3 Judge Bench of Apex Court comprising of CJI Dipak Misra, Justice AM Khanwilkar and Dr DY Chandrachud minced absolutely no words in observing clearly, categorically and convincingly that, 'Reputation of an individual is an insegregable facet of his right to life with dignity, and fundamental right of the scientist under Article 21 has been gravely affected.' The top court also very rightly constituted a committee headed by former Supreme Court Judge Justice DK Jain to inquire into the role of police officers in the diabolical conspiracy against him.

To be sure, the Bench of Apex Court headed by CJI Dipak Misra who delivered this landmark judgment noted right at the outset in para 1 that, 'The appellant, a septuagenarian, a former Scientist of the Indian Space Research Organisation (ISRO), has assailed the judgment and order passed by the Division Bench of the High Court of Kerala whereby it has overturned the decision of the learned single Judge who had lacinated the order of the State Government declining to take appropriate action against the police officers on the grounds of delay and further remitted the matter to the Government. To say the least, the delineation by the Division Bench is too simplistic.' Rightly said! There can be no denying it!

To recapitulate, para 2 goes on to illustrate saying: 'The expose of facts very succinctly put is that on 20.1.1994, Crime No. 225/94 was registered at Vanchiyoor Police Station against one Mariam Rasheeda, a Maldivian National, under Section 14 of the Foreigners Act, 1946 and paragraph 7 of the Foreigners Order. The investigation of the case was conducted by one S. Vijayan, the respondent no. 6 herein, who was the then Inspector, Special Branch, Thiruvananthapuram.'

It must be brought out here that para 3 then reveals that, 'Mariam Rasheeda was arrested and sent to judicial custody on 21.10.1994. Her custody was obtained by the Police on 03.11.1994 and she was interrogated by Kerala Police and Intelligence Bureau (IB) officials. Allegedly, during interrogation, she, made certain 'confessions' which led to the registration of Crime No. 246/1994, Vanchiyoor Police Station on 13.11.1994 under Sections 3 and 4 of the Indian Official Secrets Act, 1923, alleging that certain official secrets and documents of Indian Space Research Organization (ISRO) had been leaked out by scientists of ISRO.'

It must also be brought out here that para 4 further reveals that, 'Another Maldivian National Fousiya Hasan along with Mariam Rasheeda was arrested in Crime No. 246/1994. On 15.11.1994, investigation of both the cases was taken over by the Special Investigation Team (SIT) headed by one Mr. Siby Mathews, respondent no. 1 herein, who was the then DIG Crime of Kerala Police. On 21.11.1994, Sri D. Sarikumaran, a scientist at ISRO, was arrested and on 30.11.1994, S. Nambi Narayanan, the appellant herein, was arrested along with two other persons. Later, on 04.12.1994, consequent to the request of the Government of Kerala and the decision of the Government of India, the investigation was transferred to the Central Bureau of Investigation (CBI), the respondent no. 4 herein.'

More importantly, para 5 vindicates that the allegations of espionage charges against these two ISRO scientists were false and not proved. It is disclosed in para 5 that, 'After the investigation, the CBI submitted a report before the Chief Judicial Magistrate (CJM), Ernakulam, under Section 173(2) of Cr.P.C. stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court's order dated 02.05.1996 and all the accused were discharged.'

To put things in perspective, what the CBI reveals in para 6 is that none of the information against the ISRO scientists could be substantiated. It says that, 'That apart, in the said report, addressed to the Chief Secretary, Government of Kerala, the CBI, the respondent no. 4 herein, had categorically mentioned: -

'Notwithstanding the denial of the accused persons of their complicity, meticulous, sustain and painstaking investigations were launched by the CBI and every bit of information allegedly given by the accused in their earlier statement to Kerala Police/IB about the places of meetings for purposes of espionage activities, the possibility of passing on the drawing/documents of various technologies, receipt of money as a consideration thereof etc., were gone into, but none of the information could be substantiated'.'

Truth be told, para 7 further throws unflattering light on the unbecoming conduct of SIT headed by Siby Mathew while probing this entire case as revealed by CBI in its report. It specifically points out that, 'The CBI in its report, as regards the role of the respondent no. 1 herein, went on to state: -

1.Sh. Siby Mathew was heading the Special Investigation Team and was, therefore, fully responsible for the conduct of investigation in the aforesaid two cases. Investigation conducted by the CBI has revealed that he did not take adequate steps either in regard to the thorough interrogations of the accused persons by Kerala Police or the verification of the so called disclosure made by the accused persons. In fact, he left the entire investigation to IB surrendering his duties. He ordered indiscriminate arrest of the ISRO scientist and others without adequate evidence being on record. It stressed that neither Sh. Siby Mathew and his team recovered any incriminating ISRO documents from the accused persons nor any monies alleged to have been paid to the accused persons by their foreign masters.It was unprofessional on his part to have ordered indiscriminate arrest to top ISRO scientists who played a key role in successful launching of satellite in the space and thereby caused avoidable mental and physical agony to them. It is surprising that he did not take any steps at his own level to conduct investigation on the points suggested by him.Since Sh. Mathew was based at Trivandrum, there was no justification for not having the searches conducted in the officials' residential premises of the accused Nambi Narayanan was arrested by the Kerala Police on 30.11.1994.

ViShri Siby Mathew and his team miserably failed even in conducting verification of the records of Hotels viz., Hotel Foret Manor, Hotel Pankaj, Hotel Luciya, etc., which were located at Trivandrum to ascertain the veracity of the statement of accused persons......

The above facts are being brought to the notice of the competent authority for their kind consideration and for such action as deemed fit.'

[Emphasis added]

Moving ahead, para 8 states that, 'On 27.06.1996, the State Government of Kerala being dissatisfied with the CBI report, issued a notification withdrawing the earlier notification issued to entrust the matter to CBI and decided to conduct re-investigation of the case by the State Police. This notification for re-investigation was challenged by the appellant herein, before the High Court of Kerala, in O.P. No. 14248/1996-U but the notification was upheld by the High Court of Kerala vide order dated 27.11.1996.'

As things stand, we see how in para 9, it is further stated that, 'Aggrieved by the aforesaid order of the Kerala High Court, the appellant herein, moved this Court by filing a special leave petition. This Court in K Chandrasekhar v State of Kerala and others (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. The observations of this Court read thus:-

'Even if we were to hold that State Government had the requisite power and authority to issue the impugned notification, still the same would be liable to be quashed on the ground of malafide exercise of power. Eloquent proof thereof is furnished by the following facts and circumstances as appearing on the record'......'

[Emphasis added]

It cannot be lost on us that in para 31, the Apex Court launched a scathing attack on the manner in which the Kerala State Police maliciously initiated the entire prosecution against the appellant. Para 31 says that, 'As stated earlier, the entire prosecution initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the appellant. It is not a case where the accused is kept under custody and, eventually, after trial, he is found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to the Central Bureau of Investigation. After comprehensive enquiry, the closure report was filed. An argument has been advanced by the learned counsel for the State of Kerala as well as by the other respondents that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The said submission is to be noted only to be rejected. The criminal law was set in motion without any basis. It was initiated, if one is allowed to say, on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity.'

It would be pertinent to mention here that para 32 then dwells on custodial torture. It stipulates that, 'There has been some argument that there has been no complaint with regard to custodial torture. When such an argument is advanced, the concept of torture is viewed from a narrow perspective. What really matters is what has been stated in D.K. Basu v State of W.B. (1997) 1 SCC 416. The Court in the said case, while dealing with the aspect of torture, held: -

'10. Torture has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous with the darker side of human civilisation.

'Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.' - Adriana P Bartow

11. No violation of any one of the human rights has been the subject of so many conventions and declarations as 'torture' – all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. Custodial torture is a naked violation of human dignity and degradation which destroys to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast.

12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.'

Not stopping here, para 33 then further goes on to illustrate saying that, 'From the aforesaid, it is quite vivid that emphasis has been laid on mental agony when a person is confined within the four walls of a police station or lock up. There may not be infliction of physical pain but definitely there is mental torment. In Joginder Kumar v State of U.P. and others (1994) 4 SCC 260, the Court ruled:-

'8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider......'

Right of good reputation

Having said this, it is now time to dwell on the right to reputation. In this context, it would be useful to recollect first and foremost what para 34 says. It lays down that, 'In Kiran Bedi v Committee of Inquiry and another (1989) 1 SCC 494, this Court reproduced an observation from the decision in D.F. Marion v Davis 217 Ala. 16 (Ala. 1927):-

'25. .....'The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property'.'

Now coming to para 35, it states that, 'Reputation of an individual is an insegregable facet of his right to life with dignity. In a different context, a two Judge Bench of this Court in Vishwanath Agrawal v Sarla Vishwanath Agrawal (2012) 7 SCC 288 has observed:-

'55...... reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.'

In essence, para 36 then goes on to put it succinctly saying that, 'From the aforesaid analysis, it can be stated with certitude that the fundamental right of the appellant under Article 21 has been gravely affected. In this context, we may refer with profit how this Court had condemned the excessive use of force by the police. In Delhi Judicial Service Association v State of Gujarat and others (1991) 4 SCC 406, it said:-

'39. The main objective of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citizens' life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police ..... [and it] must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.'

To top it all, in para 37 of this landmark judgment, the 3 Judge Bench of Apex Court headed by CJI Dipak Misra clearly and convincingly held that, 'If the obtaining factual matrix is adjudged on the aforesaid principles and parameters, there can be no scintilla of doubt that the appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the appellant to suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. That warrants grant of compensation under the public law remedy. We are absolutely conscious that a civil suit has been filed for grant of compensation. That will not debar the constitutional court to grant compensation taking recourse to public law. The Court cannot lose sight of the wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant. In Sube Singh v. State of Haryana and others (2006) 3 SCC 178, the three-Judge Bench, after referring to the earlier decisions, has opined:-

'38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure.'

Finally and most importantly, it would be instructive to narrate what the last two important paras 39 and 40 of this landmark judgment have to say. Para 39 says that, 'In the instant case, keeping in view the report of the CBI and the judgment rendered by this Court in K. Chandrasekhar (supra), suitable compensation has to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the Constitution withers away. We think it appropriate to direct the State of Kerala to pay a sum of Rs 50 lakhs towards compensation to the appellant and, accordingly, it is so ordered. The said amount shall be paid within eight weeks by the State. We hasten to clarify that the appellant, if so advised, may proceed with the civil suit wherein he has claimed more compensation. We have not expressed any opinion on the merits of the suit.'

No doubt, the last and one of the most important paras 40 too deserves to be mentioned in detail. It says that, 'Mr Giri, learned senior counsel for the appellant and the appellant who also appeared in person on certain occasions have submitted that the grant of compensation is not the solution in a case of the present nature. It is urged by them that the authorities who have been responsible to cause such kind of harrowing effect on the mind of the appellant should face the legal consequences. It is suggested that a Committee should be constituted to take appropriate steps against the erring officials. Though the suggestion has been strenuously opposed, yet we really remain unimpressed by the said repugnation. We think that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, we constitute a Committee which shall be headed by Justice D.K. Jain, a former Judge of this Court. The Central Government and the State Government are directed to nominate one officer each so that apposite action can be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. Justice D.K. Jain shall be the Chairman and the Central Government is directed to bear the costs and provide perquisites as provided to a retired Judge when he heads a committee. The Committee shall be provided with all logistical facilities for the conduct of its business including the secretariat staff by the Central Government.'

Conclusion

On a concluding note, what all has happened with Nambi Narayanan should not happen again with anyone. Those cops and others who are guilty of wrongly framing baseless charges against him must be punished with the most severe punishment. They must be made to pay heavy costs also as compensation to Nambi Narayanan and D Sasikumar who were both eminent ISRO scientists and yet were falsely implicated and faced worst kind of mental torture and social humiliation for no fault of theirs! Not just this, they must be made to cool their heels in prison for the rest of their lives because not just these 2 ISRO scientists suffered after being wrongly framed but India's national interests too suffered badly. Arun Ram very rightly points out in The Times Of India dated September 2018 in his editorial titled 'No Rocket Science, This' that, 'The third conspiracy – the one yet to be proved – may be international, and details of this episode could bring out some very dirty liaisons between some IB officers and foreign intelligence agencies. Pertinent to note is the timing of the spy case. India had just launched its first PSLV, for which Nambi was the project director for two of the four stages of the rocket. He was also heading the cryogenic engine which was to fuel India's future projects including interplanetary and manned missions. It is well known that India can launch satellites at a fraction of the cost of what the US and the European Space Agency charge. India mastering satellite launches, especially with the cryogenic engine that can power bigger rockets, would mean a lot of money flow into the country that would otherwise have gone West. And someone was clearly not happy with that. They partly won, as the spy case slowed down India's cryogenic project by at least a decade. In his book 'Russia in Space: The Failed Frontier', prolific space writer Brian Harvey details how when Russia was about to hand over cryogenic technology to India, the US clamped sanctions on the two countries. It is also little known history that India had, through a smart circumvention of sanctions, flown crucial parts of the cryogenic engine from Russia in the underbelly of three Ural Airways flights less than a year before the spycase broke out. And the man India entrusted with the operation answers to the name Nambi Narayanan.' It is well known that the ISRO spy case was nothing but a figment of imagination by people having vested interests and this stood vindicated when on May 2, 1996, the Chief Judicial Magistrate of Ernakulam accepted a CBI report that found the case to be a fabricated one! Those guilty no matter how powerful must be brought to book and should not be spared under any circumstances! Why the successive Congress and Left Front governments stoutly refused to proceed against the cops since 1996 when the CBI closed the case leading to Nambi's discharge must also be investigated impartially and they too must be held accountable!

 

Sanjeev Sirohi 
on 10 October 2018
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