PHOOLAN DEVI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner Phoolan Devi is facing prosecution under the U.P.Dacoity Affected Areas Act (U.P.Act No. 31 of 1983) (hereinafter referred to as the Act) in Sessions Trial No. 321 of 1981 and Sessions Trial No. 97 of 1984 before the Special Judge, Kanpur Dehat. She has challenged the constitutional vires of the Act as well as its applicability to her on the ground that the crimes giving rise to the aforesaid two sessions trials were committed on 14/02/1981 and 29/03/1980 which is prior to the enforcement of the Act which by virtue of Sub-Section (3) of Section 1 shall be deemed to have come into force on 22/10/1981, the date on which the U.P.Dacoity Affected Areas (Ordinance) was promulgated.

(2.) Sri Ramendra Asthana, learned counsel for the petitioner has submitted that the Act has created some new offences which were not in existence earlier and has provided greater punishment for the already existing offences. It lays down a different procedure for trial, a more stringent provision for grant of bail, and also provides for raising some presumption against the accused, the result whereof is that he is liable to be convicted for a more serious offence. It is thus urged that the trial of the petitioner under the provisions of the Act would violate her fundamental right guaranteed under sub-clause (1) of Article 20 of the Constitution of India. Sri Mahendra Pratap, learned A.G.A., and learned Addl. Advocate General have, on the other hand, submitted that the petitioner cannot complain of violation of her fundamental right under sub-clause (1) of Article 20 till she was actually convicted and sentenced by the Special Court and such a plea is not open to her at this state (Sic) (stage) as the trial is yet to commence.

(3.) In order to examine the contentions raised at the bar, it is necessary to consider the real import of the guarantee enshrined in sub-clause (1) of Article 20 of the Constitution. The inclusion of a set of Fundamental Rights in India's Constitution had its genesis in the forces that operated in the national struggle during British rule. With the resort by the British Executive to such arbitrary acts as internments and deportations without trial and curbs on the liberty of the Press in the early decades of this century, it became an article of faith with the leaders of the freedom movement. As the freedom struggle gathered momentum after the end of the First World War, clashes with British authorities in India become increasingly frequent and sharp and the harshness of the Executive in operating its various repressive measures strengthened the demand for a constitutional guarantee of fundamental rights. As early as 1895, the Constitution of India Bill - described as Home Rule Bill by Miss Anie Besant - had envisaged for India a constitution guaranteeing to every one of her free citizen freedom of expression, inviolability of one's house, right to property, equality before the law and right to personal liberty. The Indian National Congress at its special session held in Bombay in August 1918 demand that the new Government of India Act should include among other things, guarantees in regard to equality before the law, protection in respect of peoples life and property; freedom of speech and press, and right of association. A resolution passed at the Madras session of the Indian National Congress in 1927 categorically laid down that the basis of the future Constitution of India must be a declaration of fundamental rights. The Nehru Committee appointed by the all party Conference in its report (1928) incorporated a provision for the enumeration of such rights recommending their adoption as part of the future Constitution of India and one of the rights recommended by it was protection in respect of punishment under ex-post facto laws. The Sub-Committee on fundamental rights of the constituent assembly considered the draft proposed by its members. Sri Ambedkar's draft contained a provision - No. Bill of attainder or ex-post facto law shall be passed. After considering the draft of Sri K.M.Munshi and other members the Sub-Committee made its recommendation which was adopted by the constituent assembly (The Framing of India's Constitution A study by B.Shiva Rao - Chapter 7). The draft proposed by Sri Ambedkar and the constitutional advisor Sri B.N.Rau shows that the framers of our constitution while drafting Article 20 had the provisions of U.S.Constitution in their mind.