Mon. Mar 25th, 2019

ISRO Scientist was maliciously prosecuted

The state government of Kerala and its police framed ISRO scientist Nambi Narayanan in a bid to derail India’s prestigious cryogenic programme

The sensational case of Nambi Narayanan, a renowned ISRO scientist, which commenced with his midnight arrest on November 30, 1994 on allegations of espionage were found to be false by the Central Bureau of Investigation (CBI) during its initial investigations and they filed a closure report before Criminal Court. The CBI’s closure report came after meticulous, sustained and painstaking investigations after which they concluded that the allegations of espionage against Narayanan and other scientists were false. The acceptance of the said report by Criminal Court thereby discharging Nambi Narayanan was affixation of an indelible stamp of malicious prosecution by the Kerala Police. It is thereafter that the CBI, independent of its above closure report, rendered another report addressing it to the Chief Secretary of Kerala highlighting the omissions and commissions of the Kerala State Police stating that it was unprofessional on the part of Sibi Mathew (his designation at that time) to have ordered indiscriminate arrest of top ISRO scientists.

The CBI further stated that Sibi Mathew and his team miserably failed even in conducting verification of the records of Hotels which were located at Trivandrum to ascertain the veracity of the statement of accused persons and suggested that “the above facts are being brought to the notice of the competent authority for their kind consideration and for such action as deemed fit.” With filing of the Closure Report by CBI before the Criminal Court, criminal case of espionage against Nambi Narayanan should have come to an end and their other report submitted to the State Government of Kerala must have initiated criminal and departmental proceedings against the erring Police Officers of the Kerala Police.

But, marginalizing the CBI reports, the State Government of Kerala decided to withdraw the earlier notification entrusting the matter to CBI and to have the re-investigation conducted through its own State Machinery, raising another pregnant legal question as to the power of the State in this regard. This issue was considered exhaustively and decided by the Apex Court in the case of K. Chandrasekhar vs State of Kerala (1998) 5 SCC 223 which declared lack of jurisdiction of the State Government in ordering for re-investigation and in addition, the Court profusely dealt with the main matter of illegal arrest and conspicuously highlighted the high handedness of the State Government and passed strictures against it and branded the entire action of the State as one of “malafide exercise of power”. The Court has held: “Even if it is assumed that the 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 being facts and circumstances on the record.”

Coeval with the challenge to the jurisdiction of the State in ordering re-investigation, was the filing by Nambi Narayanan of a complaint before the National Human Rights Commission against Human Rights Violations which he was subjected to at the hands of erring Kerala State Police. The Human Rights Commission examined the case and inter alia held as under: “In our considered opinion, this is an unusual case of gross violation of human rights of a repute scientist whose long and distinguished career in space research has been tarnished apart from the physical and mental torture to which he and his family were subjected in the above manner. It is difficult to assess in precise terms the monetary compensation to which he is entitled… The Commission considers the sum of Rs 10 lakhs as the appropriate ‘immediate interim relief’ under section 8(3) of the Protection of Human Rights Act, 1993 to be paid to the complainant by the Government of Kerala. This amount be paid within a period of two months and compliance reported to the Commission.”

Nambi Narayanan has also asserted his legal rights in claiming compensation for the damage suffered by him, by filing a civil suit which is still pending. The comprehensive report of the CBI addressed to the State which ought to have triggered the state machinery to function swiftly in taking action against the erring police officials was only made to hibernate and in its own testudinal pace the cunctator government dealt with the issue in its leisure hours, and on the basis of certain reasons: One, on the advice of State Police Chief on CBI Report and two, the absence of any direction by the Chief Judicial Magistrate or the Apex Court to take action against the investigating officers. With the passage of 15 years time by then, the State Government of Kerala decided to close the entire case and thus exonerated the said police officials.

It was this decision of the State that forced Nambi Narayanan to approach the High Court for redressal of his grievance. A Single Judge examined the entire issue and framed the material question as to whether the State Government was justified in deciding not to take any action against the erring police officers. The learned Single Judge analysed the case from all angles -– the casual approach of the Kerala Government in considering the report of the CBI; torture inflicted upon Nambi Narayanan, (pointing out that “the very arrest and detention of innocent persons on false accusations Is nothing but torture”), the calamitous effect and consequence of “midnight arrests or house breaking by the police” throwing the constitutionally guaranteed right to life and liberty to the mercy of the executives which would sound the death knell of an egalitarian democratic society and came to the conclusion that the decision of the Kerala Government “does not comport with the known pattern of a responsible government bound by rule of law ” and thus held that the decision should be reconsidered and any action taken “shall not be namesake, making administration of justice a mockery.” However, against the above decision of the Single Judge, the Kerala State did not move to the Division Bench of the High Court but the private respondents – the three police officers – did. The Division Bench of Kerala High Court etiolated the CBI report as one of the opinion and held that it is for the government to consider or not to consider and its decision is based on sound reasons and ultimately, it narrowed down the entire case into a single question when it stated, “Whether relying on such a report any disciplinary action should be taken against the concerned Police officers is the only question”. And stating that it is within the realm of the Government and that “it may not be proper for this Court exercising power under Article 226 to interfere with such decision making process and arrive at a different finding or to direct Government to reconsider the same” and further stating that as to the finding “whether the accused were tortured or not is a disputed question of fact”, and thus it is for agencies such as the National Human Rights Commission and the Civil Court which Nambi Narayanan has approached to arrive at a proper finding regarding such disputed facts. The Division Bench of the Kerala High Court not only allowed the Appeal but also set aside the earlier Judgment of the Single Judge. Undaunted by the aforesaid decision of the Division Bench of Kerala High Court, Nambi Narayanan decided to challenge their order and knocked at the doors of the Supreme Court in July, 2015. The Apex Court unhesitatingly and with a comprehensive order, issued notice to the State, the CBI and the three private respondents. And after elaborate hearing on a number of days and also permitting Nambi Narayanan to present his case, in the final judgment, the Apex Court stated, “To say the least, the delineation by the Division Bench is too simplistic.”

The Supreme Court analysed the matter under an enlarged horizon. First the Court adverted to the aspect of compensation and viewed the same from the point of public law remedy. It has reflected the anguish of Nambi Narayanan in the following words: “It is urged by the appellant that the prosecution launched against him by the Kerala police was malicious on account of two reasons, the first being that the said prosecution had a catastrophic effect on his service career as a leading and renowned scientist at ISRO thereby smothering his career, life span, savings, honour, academic work as well as self-esteem and consequently resulting in total devastation of the peace of his entire family which is an ineffaceable individual loss, and the second, the irreparable and irremediable loss and setback caused to the technological advancement in Space Research in India.”

After profusely quoting from the CBI report, the Supreme Court has categorically held, “From the aforesaid report, the harassment and mental torture faced by the appellant is obvious”. The Apex Court further observed, “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.” The Apex Court next focussed its attention on “custodial torture”. It held, “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.” The Supreme Court extracted from yet another decision in the case of Delhi Judicial Service Association vs State of Gujarat, wherein it has been held – “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.” In fact, it was on the aforesaid principles and parameters that the case of Nambi Narayanan has been examined and the Supreme Court has arrived at the firm conclusion, “…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”. Keeping in view the report of the CBI and the judgment rendered in 1998 the Supreme Court has held that “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.” Time calendared for payment of the above amount is eight weeks. Apart from awarding the aforesaid compensation as public law remedy, the Supreme Court also stated, “…We hasten to clarify that the appellant, if so advised, may proceed with the civil suit wherein he has claimed more compensation.”

On the issue of conducting inquiry against the erring officials, the Supreme Court said: “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 case of Nambi Narayanan is unique and unprecedented. That all the media afforded priority to the Supreme Court’s Judgment in Nambi Narayanan’s case with front page coverage is the eloquent evidence to this fact. The case has multi-facets within. The human right violation has earlier been dealt with by the NHRC. The public law remedy has now been taken care of by the Apex Court and the civil Court has before it the pending compensation suit for damages. In between, the jurisdiction aspect of the State Government of Kerala by ordering re-investigation after the highest investigating agency (CBI) had conducted the investigation has also been dealt with by the Apex Court in its earlier judgment. While the National Human Rights Commission, the Supreme Court in K. Chandrasekhar case (supra) and in its present judgment and the Single Judge of the High Court of Kerala have all held in favour of Nambi Narayanan, it is only the Division Bench of the Kerala High Court that held against him by vilipending the judgment of the Single Judge of Kerala High Court. If one may say so, when target is fixed and justifications sought thereafter, justice is the casualty. Nambi Narayanan’s perseverance has brought him his remarkable success. No doubt, he had to wait for twenty four years. But his patience paid. As the Hindi saying goes, there may be delay but not darkness in God’s Court. Faith of the general public in judiciary has increased manifold. The motto of the Apex Court “Yato Dharma tato Jaya” (where there is Dharma, there is victory) is overwhelmingly manifested in the judgment in the case of Nambi Narayanan.  

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