Directing the Delhi Police commissioner to file an affidavit within a week, the apex court bench of Justice R.M. Lodha and Justice Shiva Kirti Singh asked him to respond to the question as to why it permitted the chief minister and his cabinet colleagues to assemble and hold dharna when prohibitory orders were in force in the area.
The court order to the commissioner came on a petition by advocate N. Rajaraman who questioned Kejriwal sitting on dharna with his cabinet colleagues and supporters when prohibitory orders were in force.
In another PIL, the court issued notice to the central government and the Delhi government on whether a chief minister who is expected to uphold the rule of law could act in its violation.
The court said petitioner M.L. Sharma raised the question of constitutional importance as he (Sharma) said "a person can't be a law maker and the law breaker at the same time".
"Dual personality is not permitted," observed the court.
The Supreme Court framed two questions for the police commissioner to respond.
The court framed two questions for the police commissioner to respond that included "Why despite prohibitory orders under Section 144 of the CrPC, the law enforcement machinery/police permitted five or more persons to assemble unlawfully?"The second poser the police commissioner is to answer is "whether law enforcement machinery/police acted appropriately and with utmost expedition in dispersing the unlawful assembly by force under Section 129(2) of the CrPC after such assembly was informed under Section 129(1) to disperse, and despite such command, the assembly did not disperse".
As additional Solicitor General Siddharth Luthra sought to make some submission, Justice Lodha asked him: "Tell us why did you permit them to assemble when prohibitory order was in force. Police will close its eyes and let it happen first and allow the people to gather."
"Why was the gathering permitted," Justice Lodha asked.
"Law enforcement agencies have some obligations. They can't permit the law to be broken before their eyes," Justice Lodha said, adding "normally, we don't interfere in such matters but when law is broken, we will interfere".
Repeating its query as to "why did police at all permit the people to gather", the court asked: "Police have no plans to stop those assembled even after 24 hours or 36 hours. For various reasons, tell us there must be some reason. Tell us what is the reason."Having taken to task the police, Justice Lodha said: "Our role is only to see that the constitutional provisions are respected and law is enforced."
Earlier, Sharma urged the court to take note of the chief minister acting in breach of law and police being in a helpless situation.
Are you saying that "police did not act against the protestors or constitutional functionary acted illegally and unconstitutionally", the court asked Sharma.
Since he was a chief minister, police was helpless in taking action against him. A common man, in a similar situation, would have been behind bars immediately and FIR filed against him, Sharma said clarifying his position.
Sharma told the court that the Supreme Court has issued directions and framed guidelines as to how to embark on agitations. At this, the court wondered if this court has issued directions and framed guidelines on an agitation by cabinet ministers of the state government.
Sharma also dealt at length on the conduct of Delhi Law Minister Somnath Bharti in raiding the residence of Ugandan nationals in breach of statutory provisions and the directions of the apex court.