NEW DELHI: Days after Rahul Gandhi scotched speculation about a new-found bonhomie between Congress and BSP, the Uttar Pradesh governor is set to withhold his assent to a Bill for creation of a special force to protect numerous statues of dalit leaders installed by the Mayawati government.
With legal opinion faulting both the Bill and the ordinance on the constitutional touchstone, governor B L Joshi has two options — either to return the Bill specifying modifications or reserve it for consideration of the President and her assent.
The Special Zone Protection Force (SZPF) Bill was passed by both Houses of the legislature on February 18 and was sent for the governor's assent. While awaiting his assent to the Bill, the BSP government passed an ordinance to similar effect and sent it to Raj Bhawan for clearance on March 26. Joshi had sought urgent opinion from the Centre about the constitutional validity of the special force for protection of dalit monuments, and the manner in which the Mayawati government had even started recruiting personnel for it.
The legal opinion sought from Attorney General G E Vahanvati by the Centre has categorically asserted that the provisions of the Bill and the ordinance were in breach of Article 22 of the Constitution and violative of Section 41 of the Criminal Procedure Code, law ministry sources said.
What was ex-facie in conflict with Article 22 of the Constitution was the provision in the Bill conferring power on SZPF personnel to arrest, even without an order from a magistrate, any person who interferes or attempts to interfere with their duty to protect the monuments in memory of dalit leaders and their statues.
The arrested person was to be handed over to the nearest police station without delay, the Bill provided.
The AG pointed out that this provision was unconstitutional as Article 22 clearly stated that every person should be produced before the nearest magistrate within 24 hours of his arrest and no one could be detained further without an order from the magistrate. Moreover, under Code of Criminal Procedure, no one could be arrested by a private person unless he has committed a cognizable offence, the top law officer pointed out and suggested that in the given circumstance the governor, in exercise of his powers under Article 200 of the Constitution, could decide whether the Bill be reserved for consideration of the President and her assent.
He also said that it would be improper for the Mayawati government to go ahead with the recruitment of the personnel for SZPF without the governor deciding the fate of the Bill or clearing the ordinance.
Referance From times of india