IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. _________ OF 2008 IN THE MATTER OF: MR. SOLI J. SORABJEE ...PETITIONER VERSUS UNION OF INDIA ...RESPONDENT P A P E R B O O K FOR INDEX KINDLY SEE INSIDE ADVOCATE FOR THE PETITIONER :MR. E.C. AGRAWALA INDEX Sl. No. Particulars Page Nos. 1. Listing Proforma I - II 2. Check List III – IV 3. Synopsis & List of dates A - b 4. Writ Petition with affidavit. 1 - 15 5. ANNEXURE P-1: A copy of the manual of the Department of Homeland Security. 16 – 44 6. ANNEXURE P-2 (COLLY): i) A copy of the articles published in McClatchy Newspapers. 45 – 51 ii) A copy of the articles published in Mail Today on 29.11.2008. 52 – 54 iii) A copy of the articles published in The Times dated 3.12.2008. 55 - 57 SYNOPSIS & LIST OF DATES The petitioner submits that the immediate cause for filing the present petition are the recent horrific terrorist attacks in Mumbai which have disclosed several deficiencies and lapses in the existing systems and counter-terrorism measures and also in the manner in which they were employed. The petitioner wishes to clarify at the outset that the purpose of the present petition is not to blame or censure any person, party or organisation but to compel the respondent and other States to adopt and undertake measures which may prevent recurrence of such terrorist incidents or in any event enable the police and security forces to better counter and combat terrorist activities and thereby save loss of, or injury to, human lives and destruction of properties. The present petition raises far reaching questions about the role of the respondent in providing security to its citizens in the matter of their life and liberty guaranteed by Article 21 of the Constitution without which the other fundamental rights are incapable of being exercised. The present petition has been filed to ensure that the police departments and security forces across the country are properly equipped and trained to handle situations of terrorism such as the one witnessed recently in Mumbai. It is apparent that the current levels of training as well as the weaponry possessed by the police is antiquated and unable to cope with the arms and technology employed by terrorists and other anti-national elements. Directions are sought from this Hon’ble Court to ensure that these lacunae are filled urgently and the right to life of every citizen is protected. 12-3-1993 Series of bomb blasts in Mumbai killing 257 people 1998-2008 Series of terrorist attacks in virtually in all the metros and in several cities. These attacks included an audacious assault on parliament in 2001 as well as series of bomb blasts in Delhi, Mumbai and other major cities. 26-11-2008 Over 195 people killed and over 300 hundred injured in a series of synchronised attacks in Mumbai. Three top Mumbai Police officials were also killed in the attack. December 2008 Press reports and other information showing certain deficiencies in the arming and training of the police forces and the other paramilitary forces. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. ___________ OF 2008 IN THE MATTER OF: MR. SOLI J. SORABJEE A-128, NEETI BAGH NEW DELHI- 110049 ….PETITIONER VERSUS UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF HOME AFFAIRS NORTH BLOCK NEW DELHI-110 001 ….RESPONDENT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA TO THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA The humble petition of the Petitioner above named MOST RESPECTFULLY SHEWETH: 1. The Petitioner is a citizen of India. The Petitioner has been the Attorney General for India from 1989-90 and then from 1998-2004. The Petitioner has held and holds several positions in national and international bar associations. The Petitioner was the Chairman of the Police Reforms Committee 2007 popularly known as the Sorabjee Committee. 2. The petitioner submits that the immediate cause for filing the present petition are the recent horrific terrorist attacks in Mumbai which have disclosed several deficiencies and lapses in the existing systems and counter-terrorism measures and also in the manner in which they were employed. The petitioner wishes to clarify at the outset that the purpose of the present petition is not to blame or censure any person, party or organisation but to compel the respondent and other States to adopt and undertake measures which may prevent recurrence of such terrorist incidents or in any event enable the police and security forces to better counter and combat terrorist activities and thereby save loss of, or injury to, human lives and destruction of properties. 3. The present petition raises far reaching questions about the role of the respondent in providing security to its citizens in the matter of their life and liberty guaranteed by Article 21 of the Constitution without which the other fundamental rights are incapable of being exercised. The present petition has been filed to ensure that the police departments and security forces across the country are properly equipped and trained to handle situations of terrorism such as the one witnessed recently in Mumbai. It is apparent that the current levels of training as well as the weaponry possessed by the police is antiquated and unable to cope with the arms and technology employed by terrorists and other anti-national elements. Directions are sought from this Hon’ble Court to ensure that these lacunae are filled urgently and the right to life of every citizen is protected. United States of America has created a separate department called “The Department of Home Land Security”, which is entrusted with the work of taking care of security in USA. It is submitted that a separate department of such a nature may be created in India also to avoid terrorist attacks/incidents in India. A copy of the manual of the Department of Homeland Security is annexed hereto as ANNEXURE ‘P-1’. 4. The Petitioner says and submit that it is one of the primary duties and constitutional obligations of the respondent inter alia to protect the safety, liberty and lives of its citizens. This duty and obligation is discharged by the police and security forces at the command and disposal of the respondent. The police cannot effectively discharge this duty unless it is properly equipped with the requisite arms and ammunition and with requisite clothing and other equipments necessary to effectively counter and contain attacks by terrorists. 5. The recent incidents of terrorist attacks in Mumbai have demonstrated that the police force is not equipped with sufficient upto-date and modern arms and thus are unable to tackle the terrorists and indeed are prey to the superior arms and technology employed by terrorists. The petitioner understands that the majority of the police personnel have arms which are outdated and are no match for the arms and ammunition used by the terrorists. 6. The recent events in Mumbai have also exposed basic intelligence failures as well as the lack of an adequate legal and regulatory mechanism to cope with terrorist activities. However, the present petition is restricted to ensuring and enabling the police forces in the country to deal with situations of terror as and when they occur. The Petitioner craves liberty of this Hon’ble Court to seek such further directions and orders as may be needed to ensure that the right to life of every citizen, as enshrined in Article 21 of the Constitution of India, is fully safeguarded. 7. Terrorists attacked Mumbai on the night of 26-11-08. Initially the police were rushed to the various sites where the terrorists were holed up. During these encounters several top policemen, including the head of the anti-terrorism squad of Mumbai, Mr. Karkare, were killed. Television footage at the time showed the police personnel wearing antiquated out-moded helmets and body armour. The attack at the Chatrapati Shivaji Train Station also exposed the woefully under-armed and short staffed police. When faced with terrorists firing semi automatic machine guns, the policemen on duty could not fight back with similar weapons but used antiquated weapons. The CCTV footage reveals these inadequacies. News reports also disclose that body armour used by the police had failed some tests in 2001 and 2004. The petitioner understands that India has only 100,000 bulletproof vests for police and paramilitary forces. The petitioner craves leave to refer to relevant parts of press reports highlighting some of the deficiencies is reproduced hereinbelow. “If they’d been properly equipped they might have only been injured,” Mr Singh [who retired after 20 years of service with the Maharashtra police] said. “Their vital organs would have been protected.” Other officers were only issued 5mm-thick plastic body protectors designed for riot control. That is because India has only 100,000 bulletproof vests for police and paramilitary forces, according to Anurag Gupta, the managing director of MKU, which supplies the vests to the Government. “The helmets used last week were World War Two-era, not designed for combat,” he said. Most of the police involved were carrying .303s or self-loading rifles like those adopted by the British Army in the 1950s. Some officers said that they were not given enough weapons training because of a shortage of ammunition and shooting ranges.” 8. These deficiencies caused the possibly unwarranted deaths of police officers as well as innocent civilians at the CST terminus and the Taj and Oberoi hotels. It is respectfully submitted that in view of the aforesaid deficiencies and shortcomings it is not possible for the police to effectively protect the life and liberty of the citizens. The petitioner submits that the threat of terrorist attacks in the future cannot be ruled out. Therefore it is urgently necessary that the police be provided with modern arms and ammunitions including heat-seeking sensors and infrared surveillance system as also bullet proof jackets. 9. In the case of the Mumbai terrorist attacks forces other than the police, namely the armed commandos of the navy and the National Security Guards were also called in. Unfortunately in this case too it appears that there was inadequacy of infrastructure and weaponry. No specialized commando units were based in Mumbai, even though it is a major metro and the financial capital of the country. It appears that there was no dedicated aircraft available to transport the commandos who had to be ferried in aircrafts that were requisitioned for this purpose which entailed loss of valuable time. The commandos had to be summoned from Delhi thereby wasting precious time which is invaluable and is of the essence to counter terrorist and hostage situations. Upon arriving in Mumbai, the commandos did not even have vehicles to transport them to the sites of the terror attacks but had to be carted in public transport buses. After reaching the sites it appears from media reports that the NSG commandos did not have access to the blueprints of the sites. The NSG commandos were also not properly equipped inasmuch as they did not have basic equipment that is virtually the norm elsewhere in the world, for instance night vision equipment. It further appears that neither the police force, nor the NSG Commandos, were equipped with devices and equipments such as heat-seeking sensors and infra-red surveillance devices which can pinpoint the location of the terrorists and relay the conversations taking place in the besieged building. 10. The Mumbai incident is not an isolated incident of terror. It is part of a series of terrorist acts which amounts virtually to waging a war on the sovereignty and integrity of the country. This problem is getting increasingly exacerbated as is evident from the instances of terrorism given below. November 26, 2008: 195 killed, over 300 hundred injured in a series of synchronised attacks in Mumbai on Wednesday. Three top Mumbai Police officials were also killed in the attack. September 13, 2008: At least 15 killed and over 110 injured in five blasts across New Delhi. July 26, 2008: 29 killed and over 100 injured in 17 serial bomb blasts in Ahmedabad. July 25, 2008: At least two killed and 20 injured in eight low-intensity blasts in Bangalore. May 13, 2008: At least 63 were killed in nine bomb blasts in Jaipur. August 25, 2007: At least 42 people were killed in two blasts in Hyderabad's Lumbini park and a restaurant. May 18, 2007: At least 13 were killed in the bombing at Mecca Masjid, Hyderabad, which took place during Friday prayers. September 8, 2006: Over 37 killed and 125 injured in a series of bomb blasts in the vicinity of a mosque in Malegaon, Maharashtra. July 11, 2006: Over 200 killed in a series of seven blasts in Mumbai local trains. March 7, 2006: At least 21 killed in three attacks in Varanasi in Shri Sankatmochan Mandir and Cantonment Railway Station. October 29, 2005: Three powerful serial blasts in New Delhi just two days before Diwali. About 70 people died. August 15, 2004: 16 killed in explosions in Assam. Most of them were schoolchildren. August 25, 2003: Simultaneous car bombs in Mumbai kill 52 May 14, 2003: Terrorists attack an army camp near Jammu, killing more than 30, including women and children. March 13, 2003: A bomb attack on a train in Mumbai kills 11. September 24, 2002: Terrorists attack the Akshardham temple in Gujarat. 31 dead. December 13, 2001: Terrorists attack parliament complex in New Delhi killing seven security personnel. October 1, 2001: Attack on J&K assembly complex kills around 35. February 14, 1998: Blasts in Coimbatore kill 46. March 12, 1993: 257 die in Mumbai serial blasts. Copies of various articles and reports published in various newspapers and magazines are annexed hereto as ANNEXURE ‘P-2’ (Colly). 11. The problem of terror has become endemic and needs to be tackled at various levels. Terrorist incidents are not necessarily restricted to metros, as is apparent from the timeline of terror incidents given above. It is submitted that it is essential that every police district should have an anti-terror wing since protecting the major metros alone would not stop the terrorists from attacking the ‘soft targets’. Initially such anti-terror squads may be placed in urban centers of substantial population. This is a vital means whereby strong terrorist attacks leading to loss of life can be curtailed. 12. It is respectfully submitted that the mandate of Article 21 does not extend merely to the State refraining from infringing the right to life of an individual. Article 21 imposes a positive obligation on the State requiring it to take all requisite measures to safeguard the life and liberty of its citizens including but not limited to properly arming and training its police force and also supplying them the requisite bullet proof jackets and equipments so that the right to life of any person in the Country can be adequately safeguarded. The shortcomings brought out in the case of terrorist attacks in Mumbai clearly establish a violation of Article 21 of the Constitution. 13. The petitioner submits that the police are over-stretched in their duties. In addition to their normal duties they are assigned to VIP duties and other duties when Heads of State reach in India with the result the police are overstretched to exhaustion. This is another factor for their inability to tackle and counter terrorists. Anti-terror units must have sufficient rest and recuperation so as to be in a state of constant preparedness to deal with situations of terror attacks. The petitioner submits that the respondent must ensure that the working hours of the police are not overstretched leading to their exhaustion particularly by deploying them to other duties such as VIP duties etc. 14. The Petitioner submits that it is essential to impart proper and comprehensive training to the police and the security personnel in the use of arms and ammunition and the ways and means to counter and overcome terrorist attacks. The initial training must be followed up by refresher courses and continued training in light of fresh technological developments. 15. It appears from credible media reports that there was some actionable intelligence in relation to the Mumbai terrorist attacks. Acting upon such information could have prevented the attacks, or at least have minimised the loss of life. Apparently this material was either not shared between the intelligence agencies or they were for some reason unable to act upon the information received. The petitioner submits that networking and intelligence sharing about terrorist activities is absolutely essential to combat and curb terrorism. Terrorist acts need to be prevented through the collection and analysis of intelligence. Hence it is necessary that there is a pool or a databank of intelligence. Further, the intelligence agencies should have trained personnel who can access and analyse this intelligence and who can analyse and draw upon the information derived from terror attacks elsewhere the world. Intelligence agencies should monitor and work in tandem. In the light of foregoing events it is necessary for the respondent to thoroughly overhaul its intelligence agencies and also to modernise and improve its counter intelligence services. 16. Therefore the Petitioner is filing the present Petition on the following amongst other grounds which are set out hereinafter without prejudice to one another for the implementation of Article 21 of the Constitution and for that purpose adopting requisite measures as indicated above. Failure to do so has resulted and will further result in the violation of the right of the citizens, including that of the petitioner, to life and liberty guaranteed by Article 21 of the Constitution. GROUNDS (a) That Article 21 of the Constitution mandates that the Government adequately protect its citizens from internal and external acts of aggression, including acts of terrorism. (b) That Article 21 requires the Government to protect the lives of innocent citizens through proper training of the police forces. (c) That Article 21 imposes a positive obligation on the Government to protect people rather than containing merely a negative requirement to refrain from infringing the right to life (c) That the right to life requires the Government to adequately arm police and paramilitary forces to deal with situations created by terrorists intent on creating havoc. (d) That the Government is under an obligation to recruit officers and personnel who would be deputed to deal specifically with the task of protecting citizens from terrorist attacks. (e) That the right to life includes the right to live a life free from terror and that the Government is obliged to put in place protocols and structures ensuring the same. (f) That right to life includes a well armed and properly trained police force/anti terror squad. (g) That terrorist attacks amount to an assault of the security of the State and a de facto attack on the Nation. 17. That the Petitioner has not filed any other Writ Petition under Article 32 of the Constitution of India either before this Hon’ble Court or before any Hon’ble High Court of the country for the same relief. This is the only petition which the Petitioner is being filed. 18. That this Hon’ble Court has the power and jurisdiction to entertain the present writ petition. It is submitted that the issue involved in the present writ petition is not limited to a single State but involves the entire nation and if the prayer sought for in the present writ petition are not granted, the entire nation will suffer irreparable loss and injury and the national security of the country is at stake. PRAYERS The petitioner therefore prays that this Hon’ble Court may be pleased to issue an appropriate writ directing the respondent to: (a) properly equip police and security forces with modern weapons and equipment for combating and countering terrorist attacks. (b) impart comprehensive training to anti-terror units as well as the police to deal with and counter any situations of terrorist attacks. (c) maintain a centralised system of intelligence with inputs from all central as well as state services which are accessible to state as well as central intelligence agencies and to provide adequate mechanisms for proper sharing and analysis of intelligence. (d) direct the respondent to establish specialised anti-terror units in every police district or in any event in every major urban conglomeration. (e) direct the respondents to ensure that the working hours and duties of the police are not over-stretched leading to their exhaustion and to ensure that the police as well as the anti-terror units have sufficient rest and recuperation so as to be in a state of constant preparedness to deal with situations of terror attacks. (f) appoint a committee and/or direct the respondents to appoint a high powered committee, comprising persons of eminence and requisite experience, which would ensure and supervise that the police and anti-terror personnel are adequately trained and armed against terrorist strikes and are in a state of preparedness in case of terror attacks. (g) for such other orders and directions as this Hon’ble court may deem fit and necessary. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY. FILED BY (E.C. AGRAWALA) ADVOCATE FOR THE PETITIONER NEW DELHI DRAWN ON: 10.12.2008 FILED ON: 11.12.2008
