Justice V. Parthiban makes landmark observations, says ‘bursting of crackers is an integral part of Diwali festival’

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Justice V. Parthiban makes landmark observations, says ‘bursting of crackers is an integral part of Diwali festival’: Read details
8 September, 2020
Narasimhan Vijayaraghavan
Justice V. Parthiban: ‘Bursting of crackers is an integral part of Diwali festival’
Diwali
91
Justice V. Parthiban, Madras High Court has caught the bull by the horns and concluded that Mr A. Balaji was unfairly and unjustly denied the benefit of employment, despite clearing the requisite stages for selection as Grade – II Police Constable, conducted by TN Uniformed Services Recruitment Board, Chennai, being held disqualified on the allegations of ‘bursting of crackers during Diwali festival in 2018.’

The learned judge, in a brilliant exposition of the four corners of an offence under Section 285, Indian Penal Code, and adverting to a host of decisions, including the leading one in Avatar Singh (2016 – SC), has come down heavily on the appointing authorities for rejecting his selection by relying upon ‘Victorian standards’ and ‘utopian expectation’, ignoring that ‘bursting of crackers is an integral part of the Diwali festival, having its roots to a hoary and hallowed civilization, unique to this land and is celebrated by all age groups across the nation with great fervour and ardour.’

The verdict, written in purple prose, has come not a day too soon, with Diwali round the corner and the expectation of PILs, annually a routine, seeking to ban the bursting of crackers. This decision is one for celebration.

It would be appropriate to extract the relevant portion of this 30-page, 24-para order dated 05/09/2020, made in A.Balaji v. The Chairman, TN Uniformed Services Recruitment Board, Chennai, to communicate the lovely message from a Constitutional Court, which is long overdue, with regard to the bursting of crackers during Diwali – which is seemingly an offence under Section 285, IPC, even when it is meant to be in celebration of the festival in the most harmless way, with no intent whatsoever to endanger human life or cause hurt or injury to any person.

‘The broad contours of the above Section ( 285 IPC) may appear to be having criminal element, nevertheless, this Court cannot shut its eyes to the facts of this case which attracted the mischief of the above provision. Mere bursting of crackers by an individual that too during festival time, can be termed as a criminal offence at all, is for the competent Court to decide. However, for the purpose of the issues on hand, can the incident land the petitioner in an irretrievable situation, wherein he is debarred from seeking recruitment to the Police Force by applying the so-called strict standards of discipline and a high degree of integrity. In this regard, the submissions made by the learned Additional Advocate General may look attractive, apparently though. But the said submission pales into insignificance when the facts of this case are juxtaposed to the application of the Rule with the fossilized mindset of the jaded authority. It looks like, the Recruitment Board is only looking for candidates conforming to the Victorian standards of conduct and discipline. Such utopian expectation is a matter of pretentious and wishful idealism, divorced from mundane pragmatism. Bursting of crackers is an integral part of the Diwali festival, having its roots to a hoary and hallowed civilization unique to this land, and is celebrated by all age groups across the nation with great fervour and ardour. If the display of festive mood and exhilaration during the celebration would amount to attracting disqualification in the understanding of the authority, it only exposes his hollowness and in that view of the matter, the rejection is nothing but a caricaturing of fair play in administrative action.’

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By orders dated 09/04/2020, the appointing authority had rejected the candidature of A.Balaji for the post of Grade – II Police Constable on the solitary ground that the candidate had suppressed the factum of his being charge-sheeted for an offence under Section 285, IPC for ‘bursting crackers during Diwali festival’. In an illuminating pronouncement drawing the subtle and substantive nature of the need for disclosure of ‘criminal antecedents’ of the candidate, the learned judge has pointed out that there is absolutely no issue of involvement of any moral turpitude, in the so-called offence of ‘bursting crackers during Diwali festival’.

Without diluting the need for honest and transparent disclosure of criminal antecedents of the candidates, Justice V. Parthiban has alluded to the decision of the top court in Avatar Singh in these words –

The Hon’ble Supreme Court has succinctly observed in paragraph 37 in the above-referred decision, that McCarthyism ought not to be adopted by the authority in the exercise of the power. Therefore, the suppression per se is not to be treated as a criminal intent to withhold information and authorities are expected to draw a significant line as to when the suppression is material and when the same is immaterial in the larger perspective of things, as outlined by the Hon’ble Supreme Court of India. The authority is not expected to be very officious and wooden in his approach when the fundamental right of the petitioner is involved in seeking an opportunity for employment in public service. Adopting an unwanted sanctimonious approach in the present consideration, in the opinion of this Court, is nothing but a display of poor sagacity by the officialdom. Therefore, as reasoned by the Hon’ble Supreme Court of India, there has to be a proper reconciliation of various factors without being pigeonholed into a stereo-typed and cliched discharge of the discretion. On the other hand, the exercise of power, in the given circumstances, reflecting a larger understanding of the contemporary contextual social-mores would enhance the prestige of the good governance, in securing the ends of its objectivity.

In a stinging decision in worthier prose, the learned judge has set aside the decision of the appointing authority to reject the candidature of the petitioner and ‘directed them to consider the claim of the petitioner to the post of Grade – II Police Constable, Jail Warder and Fireman in the appropriate post, as per his rank and eligibility, without reference to the involvement of the petitioner in the criminal case an indication in the impugned proceedings, if he is otherwise fit in all other respects.’

One is particularly delighted that a secular and constitutional court has boldly assumed its responsibility in the peculiar circumstances of this case, and come to the rescue of an innocent victim, who was indulging in no more than bursting crackers in celebration of Diwali festival. The learned judge deserves our appreciation for admitting the onus cast on it, in such a case where gross injustice was done to the petitioner, in this sterling language which hopefully would send the appropriate message to the powers that be in dealing with celebration of Diwali by bursting of crackers.

Once, admittedly, the competent authority is clothed with the ultimate responsibility of assessing the suitability of the candidates, when such responsibility is discharged in a particular manner to the detriment of the candidates, the onus shifts on this Court to review the decision taken by the authority, on the touchstone of fair play and good conscience. So much so this Court, while undertaking such review of the impugned action of the fourth respondent, primarily finds that the impugned decision is the result of the callous and apathetic application of the Rule as mentioned in the impugned order in so far as the case on hand is concerned. Sticking to the rigours of the letter of the Rule than to the spirit of the Regulation for which it was intended and enacted is a poor reflection of tunnel vision of officious disposition.

This Court is conscious of, of course, the objective of the relevant Rule is intended to weed out the elements with criminal antecedents, involved in serious criminal offences, to protect the Police Force from infiltration of such creepy elements. The intention apart, in the matter of implementation of the Rule in the given situation, the authority expected to act wisely and judiciously. The authority cannot blindfold himself and implement the Rule unmindful of the fact situation, allowing the vice of arbitrariness to take precedence in the decision-making process, exposing the eventual decision to judicial interference. The authority notwithstanding the Rule is empowered to assess the suitability of the candidate concerned, in a given situation, in furtherance of the spirit of the Rule and such discretion cannot be discharged uniformly across the Board, although the Rules are meant to be applied uniformly to all persons, the uniformity requirement in the decision making the process of the authority is meant to be applied in homogeneous circumstances and not in respect of dissimilar situations across the spectrum as reasoned by the Hon’ble Supreme Court in the “Avtar Singh’s case (cited supra). It will be a travesty of justice if the authority who is invested with the power of deciding the suitability of the candidates embarks upon painting all the candidates with the same brush. Such exercise of power with mindless uniformity would only lead to a miscarriage of justice. The discretion so vested under the Rule and the leverage provided would then become inane and pointless.

‘McCarthyism is the antithesis to Constitutional goals’, as opined by the apex court and McCarthyism be damned, as it ought to be, by the learned judge. This order, from a constitutional court by an erudite judge, is as much a celebration like the bursting of crackers during Diwali time.

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court