Delhi High Court Declines PIL For Indian Army Martyrs' Memorial At Red Fort, Says Govt Proposal Doesn't Create Enforceable Right
The Delhi High Court on Wednesday refused to entertain a PIL seeking a dedicated memorial for the martyrs of the Indian National Army (INA) at city's Red Fort in recognition of their contribution and sacrifice in India's struggle for independence.
A division bench comprising of Chief Justice DK Upadhyaya and Justice Tejas Karia remarked that whether or not the memorial has to be erected at Red Fort is the discretion of the Government and Courts cannot interfere in the same.
The petition was filed by the Mahan Swatantrata Senani Lalti Ram Trust, which had sought a writ of mandamus directing the Union Ministry of Culture, Ministry of Defence and the Archaeological Survey of India (ASI) to take necessary and expeditious steps for establishing the memorial.
The Trust's principal contention was that the Union Government itself stated in a written reply in the Lok Sabha on August 02, 2021 that it had approved various proposals relating to Netaji Subhas Chandra Bose, including a proposal for “establishing a memorial in Red Fort to INA martyrs.”
According to the petition, despite the said statement, no dedicated INA Martyrs' Memorial has been established at the Red Fort pursuant to the proposal.
While refusing to entertain the plea, the Court questioned the petitioner's counsel as to how a writ of mandamus can be issued for implementing a government proposal.
“Let's talk some law. What is the writ of mandamus? Direct what? Whatever comes to your mind, whatever makes you feel good, a direction may be issued?… You will live with dignity only when a memorial is erected and not otherwise? What kind of petition is this?” the Court said.
It added that the Petitioner will have to show some basis under the Constitution of India for the Court to issue a writ of mandamus or violation of some fundamental right.
“Erection of a memorial is not linked to any duty or right. How can we pass such a direction?… How can we direct the government to allocate a land in Red Fort and erect a memorial?” It said.
The CJ further remarked that whether or not to make a memorial in respect of any individual cannot be a debatable issue before a court of law.
“Is this a justiciable issue? Nobody berates those martyrs in whose honour and respect you want to erect the memorial but can that become subject matter of a writ petition? Who will not want that India becomes heaven. So should we issue mandamus for that?” the CJ remarked.
Disposing of the plea, the Court observed that announcements made through PIB press releases, do not, by itself, can form basis of seeking any right.
The Court granted liberty to the petitioner to approach the relevant Union Ministry by making an exhaustive representation, along with documents.
It added that the representation, if made, be decided as per law, while also clarifying that its observations order may not be construed as the Court's opinion on merits of claim of the parties.