Introduction:
India is the largest democracy in the world, we have the lengthiest constitution in the world, India is considered as quasi-federal in nature. Quasi-federalism means an intermediate form of government between a unitary state and a federation. It is the combination of both the federal structure and unitary structure. India is considered a quasi-federal state as described by Professor K.C. Wheare. India’s Supreme Court also describes it as a federal structure with a strong bias towards the center. So basically Shiv Sena is a right-wing Marathi regional and Hindu nationalist party which was founded in 1966 by BAL Thackeray allegedly to protect the interest of the native youth in Maharashtra.
According to reports Mumbai was getting overcrowded, mainly due to ethnic immigrants moving into the city to seek jobs and other opportunities. Shiv Sena’s main focus was to motivate the Marathi youth and help them by establishing their business and promoting them because many people were coming from the rest of the country and due to that the people who resided in Mumbai were facing employment crisis as the competition rose also they were very authoritarian, anti-Muslim and have a staunch fundamentalist belief and after seeing the current scenarios we can vividly see that how blatantly Shiv Sena is misusing their power and authority also they are acting in an outrageous and immoral way.
It nowhere seems like a democratic republic state to me but rather a tyrannical state to me who has absolutely no shame of their horrendous, dictatorial and abusive actions which are causing a state of agitation, utter disappointment and a state of insecurity, shock among the citizens of the whole nation and which is creating a chaotic unsafe dark atmosphere and a sense of disbelief against the 3 main pillars of the democracy i.e. The Legislature, the executive and the judiciary.
Shiv Sena thinks that they are above the law, they have forgotten the basic fact that constitution of India is the supreme law and everyone has to abide by it but the fascist Shiv Sena simply ignore the law, rules, regulation and moral code of conduct and we can witness all these in the following current event like the way Sushant’s case was investigated by Mumbai police, arrest of Republic Bharat reporters, destroying Kangana’s office by BMC, badly thrashing an ex-navy veteran etc.
Shiv Sena violated the Principle of “Separation of Power”
So before talking about the investigation first, we would discuss the basic principle of separation of power, As we know the three main organs i.e. The Legislature, The Executive, and The Judiciary. The Legislature makes the laws, the Executive helps in imposing them and the Judiciary is an independent body which helps to keep the check and balance, applying the laws in the individual cases keeping in mind the principle of natural justice and fairness. This principle talks about the tripartite system where the power is delegated among the three organs outlying their jurisdiction.
The doctrine of separation of power in a rigid sense means that when there is a proper distinction between three organs and their functions and also there should be a system of check and balance. The doctrine of separation of power in a broad sense means that when there is no proper distinction between three organs and their functions. The Supreme Court can declare any law framed by the legislature and executive void if they violate the provisions of the Constitution. Executive also has an impact on the functioning of the judiciary as they appoint the judges and Chief justice. The list is so exhaustive.
In the case of Indira Gandhi vs Raj Narain, the court held that In our Constitution the doctrine of separation of power has been accepted in a broader sense. Just like in American and Australia Constitution where a rigid sense of separation of power applies but it is not applicable in India.[1]
So there is an overlapping of powers between three organs that’s why a system of check and balance is followed to prevent the arbitrary use of power also no organ can take control over the essential functions of other organs which comprises of basic structure not even by amending it or if it’s amended then it will be considered unconstitutional.
Now in the case of the Maharashtra Government, there were many reports which stated that how Maharashtra government interfered with Sushant’s case because it was suspected that Aditya Thackeray the son of Maharashtra’s CM is linked with the murder of Sushant and they are trying to protect him so the police are working according to the directions of Shiv Sena and follow their order and are trying to protect the primary suspect of the case also in the case of Kangana it is reported that, BMC attacked her office destroyed it completely on the saying of the government just because there was a scuffle going on between the government and Kangana and they wanted to take revenge and there are many other instances like that, which showcase that the legislature is directly interfering and controlling the functioning of the police and police is not performing their duty in a fair and transparent manner and infringing the basic code of conduct.
Mumbai Police Investigation on Sushant’s Case
On 14th June a very young, talented, aspiring, intelligent, energetic soul left all of us and his sudden demise left everyone with shock and so much grief and pain, there are so many theories regarding Sushant’s death. First, the servant told the police that Sushant ate the breakfast and went to the room and the room was locked from the inside but his sister’s and previous house manager told that he never used to lock the door from inside so that was a suspicious point after breaking the lock the people who were present at that time in the house were Sidharth Pithani, his cook and Deepesh Swan at who is also a main a suspect and when they break in he was found dead.
It was later declared that he has committed suicide and there was speculation that he was in depression and his mental condition was not stable but later on many pieces of evidence came out which reflected that he was an ambitious soul, he was being drugged there was also evidence of money laundering still it’s very hard to believe that a person of such character can take his own life.
Mumbai Police had not commenced their Investigation in the Pure Legal Sense
Under CrPC, Section 157 deals with the procedure of investigation. Now, according to Section 157(1) of the CrPC, as the first step of the investigation, the police officer, if he has a strong reason to suspect an offense in a case has to “send a report of the same to a Magistrate empowered to take cognizance of such offense”. Now, was any report related to the “investigation” into the Sushant’s case sent to the magistrate? The answer is negative. Therefore, the investigation per se, in the legal sense, had not even started on the part of the Mumbai Police.
The Mumbai Police “Stretched The Purview Of Section 174” By Not Filing FIR
The Supreme Court in its order observed that “the Mumbai Police has attempted to stretch the purview of Section 174 without drawing up an FIR”. It is to be noted that the Mumbai Police had claimed that it has been investigating the case under Section 174 and Section 175 of the CrPC.
While Section 175 gives summoning power to the police, Section 174 gives the police power to report and enquire about cases of accidental deaths or suicide. Here, the Supreme Court precedent in the “Ashok Kumar Todi v Kishwar Jahan” comes handy. The court, in this case, laid down that “The inquiry/investigation under Section 174 read with Section 175 of the Code may continue till the outcome of the cause of the death. Depending upon the cause of death, police has to either close the matter or register an FIR.”
Now, in the present case, the post mortem report or the “cause of death” of Sushant Singh Rajput was known to the police around 24 or 25 June. The police, however, continued to summon people till late July, without filing an FIR as per precedent. This is the reason that the Supreme Court had to point out that the police had erred by not filing a report or a closure. What the Mumbai police had to do post the Autopsy report is to file an FIR with the charge of abetment, if it felt that there was more to the case.[2]
Jurisdiction of Patna Police to Register Complaint
The Court held that the Patna police committed no illegality in registering the Complaint. Looking at the nature of the allegations in the Complaint which also relates to misappropriation and breach of trust, the exercise of jurisdiction by the Bihar Police appears to be in order.
“Registration of FIR is mandated when information on cognizable offense is received by the police and at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case.”
Moreover, the allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), could prima facie indicate the lawful jurisdiction of the Patna police.
It has hence, been held that the stage of investigation, they were not required to transfer the FIR to Mumbai police. For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI, and as such the ongoing investigation by the CBI is held to be lawful.[3]
Also, the SC said that there is a chance that the unnatural death of Sushant and because of the trading of charges between Maharashtra and Bihar government causes the real culprits to go scot-free and already the postmortem report, crime scene, and many important leading primary evidences tampered. Many essential elements that would make the case stronger were ignored. The Mumbai police were just trying to delay the case they were very negligent, casual, irresponsible, and not at all performed their duty in a fair and transparent way, many people also claimed that maybe they were influenced by the Maharashtra government so all these things lead to the appointment of CBI so that the investigation would be conducted in a fair and impartial way and justice would be served as soon as possible.
REPUBLIC BHARAT Reporters Got Arrested!
Yet again Shiv Sena depicted despotism, Mumbai police arrested 2 TV reporters Anuj Kumar and cameraman Yashpaljit Singh along with the OLA cab driver, they were booked under IPC section 452, 323, 448, 506, etc and they are remanded in police custody till 14th September he was even denied the legal representative which is a gross violation of law and order.
Right to consult a Lawyer
- Article- 22 (1) of the Indian Constitution provides that every arrested person has the right to choose and elect his own lawyer to defend him in the court of law for whatever crime he may/ may not have committed.
- Section- 41D of CrPC allows prisoners to be able to consult with their lawyers even during their interrogation.
- Section- 303 of CrPC allows every alleged convict/ criminal the right to be defended by a lawyer of his choice even if the criminal proceedings against him have already begun.[4]
Regarding the malice intention of Shiv Sena and Mumbai police, Republic Bharat has decided to move to the Bombay high court and National human right commission to secure the rights of the journalist also it’s reported that the Mumbai police is using dirty tactics and unreasonable amount of force while interrogating the journalist to gain the sources and other information.
Furthermore, continuing its intimidation tactics, Shiv Cable Sena, which is a wing of Shiv Sena, has issued an order to block the Republic Media Network, and the order is signed by Sanjay Raut’s brother Sunil Raut, Also not giving them the remand copy which would become difficult for republic TV to access bail.
In the Democratic Republic of India, all citizens have the right to move freely as part of their basic rights under Article 19(d), and no citizen can be illegally deprived of his right and dignity guaranteed under Article 21 of the Constitution of India. These rights are our fundamental rights and they can’t be curtailed on any condition. The illegal detention of reporters is an attack on the rights guaranteed by the constitution of free press and deny the right to report also infringing the right to speech and expression 19 (1) (a) and stopping journalists from revealing the harsh and hidden manipulated facts and pursuing public interest as the 4th pillar of democracy.
Attack on Kangana’s office by BMC
We have a fundamental right to exercise our right to speech and if a person is speaking about the wrongdoings or any act which is infringing someone’s rights or is complete dictatorial, immoral in such scenario a person has full right to question as well criticize the government and their actions, it doesn’t imply that you are Anti-national. Whatever BMC did today is blatant misuse of power and authority, first of all, to give such a short notice that too it’s not yet know that the allegations of illegal construction is true or they are just framing her to take revenge, to intimidate her and cause her injury.
She didn’t get any time to properly revert with all the necessary documentation, her lawyer asked for 7 days till Kangana reaches Mumbai to frame a proper stronger response for the notice, but the BMC just wanted to give her the message to “watch out” so these goons just attacked her office and destroyed it completely not only the outer construction but causing extensive damage to inner property like furniture, etc which is not allowed and acceptable such kind of behavior is highly condemnable and strict legal actions should be taken against the illicit actions of BMC. She got the notice of 24 hours and even before the completion of the given time period the BMC reached there and started demolishing it also no such work was allowed in Maharashtra till 30th September due to COVID so they violated the guidelines.
Attack on ex-navy veteran by Shiv Sena Goons
Shiv Sena goons allegedly attacked an ex-Navy officer over a Whatsapp forward. The 62-year-old retired Navy veteran – Madan Sharma, is currently under treatment at Shatabdi Hospital in Kandivali. CCTV footage from the area shows the goons dragging Sharma, slapping him as he tries to run away. Six Shiv Sena goons who were arrested for allegedly attacking 62-year-old retired Navy veteran – Madan Sharma has been granted bail on Saturday. The bail comes within 24-hours of arrest, and Mumbai Police has reportedly said that the sections on which they were charged were bailable offense and hence bail was granted[5] and now Shiv Sena is justifying their actions by saying “spontaneous outburst of anger”
Conclusion
India is a democratic nation and the constitution is supreme, and nobody comes above it, the basic structure of the constitution cannot be altered on any condition, our fundamentals rights can’t be waived off, the state must ensure that all the fundamental rights of the citizen are being protected and should not be curtailed or if violated we can directly approach the courts and seek remedy.
The state must respect the supremacy of constitution and abide by it and as a party is elected by winning the election and is considered the representative of the people so they must respect, protect citizens and their rights and should not act arbitrarily and unlawfully, they should exercise the powers within the limits set by the constitution and should try to be fair, transparent and lawful. The vendetta between different parties and trying to disrupt a good cause to satisfy their greedy selfish motives is really condemnable. In a state, there should be a sense of freedom, respect, security, and a healthy atmosphere which could help in becoming a welfare state.
References:
[1] Janhavi Arakeri, separation of power , ipleaders (18th may 2019) blog.ipleaders.in
[2] Avish kant ,where did Mumbai police go wrong and how bihar police got it right ,timesnow (20th august 2020) timesnownews.com
[3] Prachi Bharadwaj, here’s why SC ordered CBI probe into actors death , Scconline ( 19th august 2020) https://www.scconline.com/
[4] http://www.helplinelaw.com/
[5] https://www.republicworld.com
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