@JUDGMENTTAG-ORDER
D. Hari Paranthaman, J.@mdashThis Court after hearing both sides, passed detailed order today. The operative portion of the order is as follows:
"For all these reasons, I am inclined to quash the order and permit the petitioner to conduct the programme relating to 125th Birth Anniversary of Dr. Ambedkar and other programmes connected therewith on 14.04.2015 as stated in their letter dated 29.03.2015. The petitioner is directed to conduct the programmes peacefully as stated in their letter dated 29.03.2015 and also in the affidavit filed before this Court. The respondents are directed to give adequate protection to conduct the programme in a peaceful manner in terms of the judgments of the Apex Court and this Court, referred to above, and also to safeguard the right of the petitioner in W.P. No. 10804 of 2015, as guaranteed under Article 19(1)(a) and 1(b) of the Constitution.
Accordingly, the writ petition in W.P. No. 10804 of 2015 is allowed in the above terms. The Writ Petition in W.P. No. 10585 of 2015 is dismissed. No costs. Consequently, connected miscellaneous petition is closed."
The detailed order will follow.
Detailed common order in W.P. Nos. 10804 and 10585 of 2015:
As the issue raised in both these writ petitions are inter-linked, both these petitions are heard together and disposed of by this common order. For the sake of convenience the petitioner in W.P. No. 10804 of 2015 is referred to as ''the petitioner'' in this order, while the petitioner in W.P. No. 10585 of2015 is referred to as the petitioner in W.P. No. 10585 of 2015.
The petitioner is a Social Reform Movement founded by Thiru. E.V. Ramaswami, popularly known as "Thanthai Periyar". The petitioner has organised a meeting on 14.04.2015 at their own premises, namely, the Periyar Thidal, on the eve of the 125th Birth Anniversary of Dr. B.R. Ambedkar, the founding father of our Constitution. The Birthday Celebrations scheduled to begin at 9.00 a.m. by garlanding Dr. Ambedkar''s Statue and at 10.00 a.m., there is a programme of ''voluntary removal of the Thali''. Thereafter, a Seminar is to be conducted between 11.00 a.m. and 1.00 p.m., wherein, various leaders, belonging to different political parties and social movements, are to deliver speeches. At 1.00 p.m., after the Seminar, there is to be a ''Beef Feast''.
2. The petitioner informed about the aforesaid programmes to the Commissioner of Police in their letter dated 29.03.2015 and the petitioner assured the Commissioner of Police that the programmes will be conducted in a peaceful manner and the women, who come voluntarily to remove the Thali, will participate in the function along with their husbands.
3. While so, the Assistant Commissioner of Police, Vepery Range, Chennai, passed the impugned order dated 12.04.2015 under Section 41(2) of the Madras City Police Act, 1888, (hereinafter referred to as "the Act") prohibiting the programmes that will take place on 14.4.2015 at Periyar Thidal, Chennai, on the ground that the same would create law and order and public order problem and also result in religious disharmony. It is also stated in that order that the petitioner failed to seek permission under Section 41 of the Act.
4. Hence, the petitioner sought permission of this Court in the morning at 10.30 a.m. to move lunch motion, as their Fundamental Right guaranteed under Article 19(1)(a) and (b) of the Constitution has been infringed. This Court granted permission.
5. Another writ petition in W.P. No. 10585 of 2015 is filed by one P.S. Dhanasekaran, State Vice President of All India Hindu Maha Sabha, seeking for a direction to the Commissioner of Police not to accord permission to the second respondent therein, who is the petitioner in W.P. No. 10804 of 2015, to hold the events at Peryar Thidal on 14.04.2015 or on any other date(s).
6. Since the impugned order in W.P. No. 10804 of 2015 is now passed by the Assistant Commissioner of Police, Vepery Range, Chennai, prohibiting the programmes that are scheduled to be held by the petitioner in W.P. No. 10804 of 2015, nothing survives in W.P. No. 10585 of 2015. That is, the prayer sought for by the petitioner in W.P. No. 10585 of 2015 was granted by way of the impugned order passed by the Assistant Commissioner of Police, Vepery Range, Chennai, on 12.04.2015.
Submissions:
7. Heard both sides.
8.1. The learned Senior Counsel for the petitioner submitted that the 125th Birthday Anniversary Celebrations of Dr. B.R. Ambedkar along with other Programmes would take place only in the private premises owned by the petitioner. The petitioner has no plan to have an assembly or meeting or procession in a public place and the events would take place only at their own premises, in a peaceful and lawful manner without causing disturbance to anybody.
8.2. The learned Senior Counsel for the petitioner submitted that Thanthai Periyar championed the cause of the Rights of the women and organized so many inter-caste marriages and widows'' marriages, etc., under the banner of Self-respect and Reformist Marriages after 1920s. In such Marriages, the customs, rites and other ceremonies of Hindus or any other religions are not followed. He made elaborate submissions on these marriages. He also brought to my notice about the amendment made in the State of Tamil Nadu in the Hindu Marriage Act, 1955, by inserting Section 7-A to the Hindu Marriage Act. He took me through the photographs enclosed in the typed-set of papers and submitted that the petitioner organisation periodically organise various programmes to empower women and one among them is the voluntary removal of the Thali. According to Thanthai Periyar, the "Thali" is a symbol of slavery.
8.3. The learned Senior Counsel for the petitioner submitted that some miscreant groups prevented a Private Television Channel from telecasting a debate titled "Thali - a boon or bane", as they are not even ready to allow the common man to watch a healthy debate on the said subject and they attacked the Television Channel on 12.03.2015 by throwing bombs at their premises, which was not prevented by the police machinery of the State.
8.4. In these circumstances, the petitioner wanted to uphold the right to freedom of speech and expression and to conduct the voluntary removal of the Thali and other Programmes along with the Celebrations of the 125th Birth Anniversary of Dr. Ambedkar, who is responsible for incorporating the Chapter relating to Fundamental Rights to the Citizens in the Constitution. According to the learned Senior Counsel, the removal of the Thali is a voluntary act and is also done in the presence of the husbands of the women, participants in the Programmes. Women, who wished to remove the Thali in the Programme, shall register in advance for participating in the Programme and they are a few in number.
8.5. The learned Senior Counsel referred to the Preamble of the Constitution and submitted that our Country is a Democratic Republic promising its Citizens to secure, among other things, Liberty of thought, expression, belief, faith and worship. By reading conjointly the Preamble and Article 19(1)(a) and (b) of the Constitution, he submitted that the Fundamental Rights guaranteed under the Constitution to the citizens shall be protected, as a general rule, and the State could resort to the laws made under Article 19(2) and 19(3) to deprive the basic human rights only in exceptional circumstances. The right to hold public meetings and processions flow from Article 19(1)(a) and (b) of the Constitution and the same cannot be interfered with lightly by the law made by the State under Article 19(2) and 19(3) of the Constitution. The action of the State infringing the fundamental rights can be tested on the anvil of reasonableness under Article 14 of the Constitution. He cited various judgments and those judgments are dealt with at the later portion of this order.
8.6. He also submitted that the scope for invoking the provisions of the Act in cases, where the meeting takes place in a private place, cannot be the same as that of the cases of conducting meeting/assembly/procession in a public place. He sought to emphasis the distinction between the closed door meetings in private places and the programmes in public places. According to him, the police could at the most, regulate the closed door meetings in private places and prohibiting the same is beyond the power of the authorities under Section 41 of the Act and violative of Articles 14, 19(1)(a) and (b) read with 51A(h) of the Constitution.
8.7. He further contended that the Act, being a pre-Independence Act enacted to curb the Independence Movement led by Mahathma Gandhi against the British Government, the powers under the Act shall not be exercised now as it was exercised by the Imperial Power. Thus, powers under the Act shall not be used to prohibit the public meetings and processions as was done in the British Era. As far as the meetings in private places are concerned, the same shall be protected without being prohibited and at the most, the same may be regulated.
8.8. He submitted that every endeavour shall be made by the State to uphold the valuable Fundamental Rights guaranteed by the Constitution, i.e., in this case, freedom of speech and expression and to assemble peacefully and without arms. Particularly, since the Programmes are to take place only at the private place, and not in any public place, the State shall give protection to the petitioner to exercise the Fundamental Right guaranteed under the Constitution and the State shall not deprive the Fundamental Right citing the law and order problem that could be created by the persons with opposing view points and ideologies, when there is no incriminating materials against the petitioner.
8.9. He also submitted that the impugned order is violative of principles of natural justice, as the petitioner was not heard, as per Section 41(4) of the Act, before passing the impugned order.
8.10. He further submitted that the reference made in paragraph 4 of the impugned order about the judgment of this Court is bereft of any details and the petitioner is not aware of registration of any such First Information Report. During the course of reply, on perusing the copy of the order of this Court dated 10.04.2015 in Crl. O.P. No. 9058 of 2015, that was produced by the learned Advocate General, he contended that such stereo-typed orders are routinely passed everyday in so many cases by this Court.
9.1. On the other hand, the learned Advocate General has submitted that the police authorities anticipate that law and order problem would be created by a group of persons and organisations, who are opposing the Programmes of the petitioner. The learned Advocate General heavily relied on the Intelligence Reports and handed over the same in a sealed cover.
9.2. The learned Advocate General submitted that the State is neither supporting the views of the petitioner nor opposing the said views and the impugned order was passed only in the interest of public safety that could be disturbed by the persons and organizations espousing opposite points of view.
9.3. The learned Advocate General submitted that in the letter dated 29.03.2015 of the petitioner itself, it is stated that some are opposing the Programmes and therefore, if the Programmes are held, there would be a law and order problem and hence, the police authorities have no option, but to issue the impugned order prohibiting the Programmes.
9.4. The learned Advocate General further submitted that the Fundamental Rights guaranteed under Article 19(1)(a) and (b) of the Constitution are subject to the reasonable restrictions imposed under Article 19(2) and 19(3) of the Constitution and that the State could curtail the Rights of the petitioner by passing the impugned order in order to maintain law and order and in the interest of public safety.
9.5. The learned Advocate General also submitted that no application was made seeking permission to conduct the programme and hence, the petitioner could not contend that no opportunity under Section 41(4) of the Act was given to them before passing the impugned order.
9.6. He cited various judgments in support of his submissions and those judgments are dealt with in the later portion of this order.
10. When this Court put a question to the learned Advocate General as to whether the Intelligence Reports could be referred to by this Court in this judgment, the learned Advocate General replied that if it warrants, this Court could use the same and the State has no objection.
Analysis:
11. I have carefully considered the submissions made by either side.
Self-respect and Reformist Marriages:
12.1. Thanthai Periyar, the founder of the petitioner organisation, a Social Reform Movement, propagated the principles of rationalism, self-respect, women''s right, eradication of caste system and abolition of untouchability. He relentlessly fought against superstition. He preached, until his last breath, to develop scientific temper and to totally give up the old superstitious customs, rites and ceremonies. He wanted our country to catch up with the Western World by learning and adopting the modern Science and Technology and not to waste time on the Epics and the Myths.
12.2. According to Thanthai Periyar, slavery of a workman in the Capitalist Society and the slavery of a farm labour in the feudal society would subsist so long as the slaves are in touch with their masters. But the slavery of a woman lasts till her death in the male dominated Society wherein the women are not treated equally with men in all respects. According to Thanthai Periyar, slavery of women could be compared only with the other social evil of "untouchability" practiced against the Scheduled Castes. He called for abolition of both the slavery of women and untouchability. Thanthai Periyar and the Self-respect Movement condemned in unequivocal terms against treating women as property and Re-productive Machine. The Self-respect Movement upheld the dignity and honour of women.
12.3. Thanthai Periyar relentlessly fought for the emancipation of women from matrimonial slavery. He organized so many Inter-caste Marriages, Widows'' Marriages and marriages under the banner of Self-respect and Reformist Marriages after 1920''s. The Self-Respect Marriages are solemnized in a simple way without following the customs, rites and other ceremonies of Hindus or any other religions. According to Thanthai Periyar, women shall be treated as equal to men in all respects. Tying of the Thali is a symbol of matrimonial slavery as no such Thali is tied to men in the Marriages indicating that he is a married person, according to Thanthai Periyar. Thousands of such Marriages were solemnized by the Self-respect Movement under the leadership of Thanthai Periyar. In such Marriages, Thanthai Periyar insisted that women shall be given equal share in the property and Thanthai Periyar, also advocated that women should be educated and provided equal job opportunities. He demanded 50% of Reservation in public appointment for women. The emphasis made in the Self-respect - Suyamariyathai Marriages is totally to give up the age-old customs, rites and ceremonies and tying of the Thali is optional. Even in the case of tying of the Thali, the same is done without involving the Priests and without the recital of the Mantras. The Reformist Movement continue to propagate that the Thali is a symbol of matrimonial slavery and women should come voluntarily to remove the Thali for their emancipation from male domination.
12.4. The Self-respect and Reformist Marriages were not recognized as lawful Marriages till 1967, that is, till Section 7-A was inserted in the Hindu Marriage Act, 1955 by way of Amendment by the Tamil Nadu Legislative Assembly under the Chief Ministership of Dr. C.N. Annadurai, the founder of Dravida Munnetra Kazhagam, the then Ruling Party. Section 7-A of the Hindu Marriage Act recognizes such Suyamariyathai - Seerthiruththa Marriages as valid Hindu Marriages. Section 7-A of the Hindu Marriage Act legalized even the Self-respect and Reformist (Suyamariyathai and Seerthiruththa) Marriages that were solemnized even before insertion of Section 7-A in the Hindu Marriage Act in the year 1967.
12.5. It is useful to extract Section 7-A of the Hindu Marriage Act as hereunder:
"7-A Special provision regarding Self-Respect and Secular Marriages:
(1) This section shall apply to any marriage between any two Hindus whether called Self Respect marriage or Secular marriage or by any other name, solemnized in the presence of relatives, friends or other person:
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife, or as the case may be, her husband; or
(b) by each party to the marriage garlanding the other or putting a ring upon any finger or the other; or
(c) by the tying of the Thali or mangalsutra
(2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which this section applies solemnized after the commencement of the Hindu Marriage (Amendment) Act, 1990, shall be good and valid in law.
(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Amendment) Act, 1990 or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub-section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriages respectively, good and valid in law.
(3) Nothing contained in this section shall be deemed to:
(a) render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage Act, 1990.
(i) Such marriage has been dissolved under any custom or law;
(ii) the woman who was a party to such marriage, has whether during or after the life of the other party thereto, lawfully married another; or
(b) render valid a marriage between any two Hindus solemnized at any time before such commencement if such marriage was valid at that time; or
(c) render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto:
Provided that nothing contained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.
(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) bora of such marriage shall be deemed to be their legitimate child:
Provided that in a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the sub-clause (ii)."
Relevant Constitutional and legal provisions:
13.1. At the outset, it is relevant to extract Section 41 of the Act as hereunder:
"41. Power to regulate assemblies, meetings and procession in public Places, etc.:
(1) The Commissioner or, subject to his orders, any Police-officer above the rank of head constable, may, from time to time, as occasion may require, direct the conduct of all assemblies, meetings and processions in public places; prescribe the routes by which and the times at which such processions may pass; kept order in public places and prevent obstructions on the occasion of such assemblies, meetings and processions, and in the neighbourhood of places of worship during the time of public worship and in any case when public places may be thronged or liable to be obstructed; and may licence and regulate or prohibit the use of music or of sound amplifiers in any area.
(2) Subject to the provisions of sub-section
(3) and (4), the Commissioner may, by order in writing, prohibit any assembly, meeting or procession if he considers such prohibition to be necessary for the preservation of the public peace or public safety:
Provided that no order under this sub-section shall, without the sanction of the State Government, remain in force for more than fifteen days from the date on which such order takes effect.
(3) (a) When the order referred to in sub-section (2) is in force, any person who intends to convene or collect any assembly or meeting in any public place or to direct for promote any procession, shall make an application to the Commissioner for permission. The application shall be in such form and contain such particulars as may be specified by the commissioner in this behalf and shall be made not less than five days prior to the date, on which the assembly or meeting is to be convened or collected or the procession is to be formed:
Provided that the Commissioner may, for reasons to be recorded in writing receive such application within five days prior to the date as aforesaid.
(b) On receipt of the application under clause (a), the Commissioner may, by order in writing served in the manner specified in sub-section (7), grant permission to convene or collect the assembly or meeting or to direct or promote the procession subject to such conditions as he may specify or refuse to grant such permission.
(4) Except in cases where immediate action is necessary for the preservation of the public peace or public safety no order refusing to grant permission shall be passed under clause (b) of sub-section (3) without giving the person concerned an opportunity of appearing before the Commissioner either in person or by pleader and showing cause against the order refusing to grant permission and the Commissioner shall record in writing the reason for such order.
(5) The Commissioner may, by order in writing, depute one or more Police Officers or other persons, to be present in any such assembly, meeting or procession, for the purpose of causing a report to be taken of the proceedings.
(6) Any person who -
(a) opposes or fails to obey any order under sub-section (1), or
(b) contravenes the conditions of any licence under sub-section (1), or
(bb) fails to give prior notice referred to in sub-section 4-A, or
(c) When the order referred to in sub-section (2) is in force, convenes or collects any assembly or meeting or directs or promotes any procession -
(i) without the permission of the Commissioner under clause (b) of sub-section (3), or
(ii) in contravention of any of the conditions subject to which the permission was granted under that clause, shall be liable, on conviction, to a fine not exceeding one thousand rupees or to imprisonment not exceeding one month or both.
(7) The order referred to in clause (b) of sub-section (3) shall be served -
(a) by giving or tendering the order to the person concerned; or
(b) if such person is not found, by leaving such order at his last known place of abode or business or by giving or tendering the same to some adult member or servant of his family; or
(c) if such person does not reside in the City of Madras and his address elsewhere is known to the Commissioner, by sending the same to him by post registered; or
(d) if none of the means aforesaid be available, by affixing the same in some conspicuous part of the place of abode or business of such person.
(8) Nothing in this section shall apply to any assembly or meeting of a purely religious character held in a recognized place of worship, any assembly or meeting gathered together purely for the purpose of taking part in sports, any procession on the occasion of any wedding, funeral or similar domestic occurrence, or of any religious ceremony, or to any public meeting held under any statutory or other express legal authority, or public meeting convened by the Sheriff, or to any public meetings or class of public meetings exempted for that purpose by the State Government by general or special order.
(9) For the purposes of this section -
(a) the words "assembly", "meeting" and "procession" include any assembly, meeting or procession which is open to the public or to any class or portion of the public;
(b) a place in which an assembly or meeting is held may be a public place notwithstanding that it is held in a private place and notwithstanding that admission thereto may have been restricted by ticket or otherwise."
13.2. Section 3 of the Act defines "public place". The same may also be relevant and "Public place" as defined in Section 3 of the Act is extracted hereunder:
"Public place" means a place (including a road, street or way, whether a thoroughfare or not, and a landing place) to which the public are granted access or have a right to resort, or over which they have a right to pass."
13.3. The Preamble of the Constitution of India reads as hereunder:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;"
13.4. It is relevant to refer to Article 19(1)(a) and (b) of the Constitution and the same are extracted as hereunder:
"19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peacefully and without arms;"
13.5. Article 19(2) and 19(3) enables the State to make laws imposing reasonable restriction on the exercise of the Rights guaranteed under Article 19(1)(a) and (b) of the Constitution to its Citizens. It is, thus, relevant to extract Article 19(2) and (3) of the Constitution:
"(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause."
13.6. Article 51A (h) of the Constitution of India is as follows:
"51 A. It shall be the duty of every citizen of India -
....
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
..."Analysis of the relevant provisions of The Madras City Police Act, 1888 (shortly "the Act"):
14.1. The police often prohibit the public meetings and processions under the Act. These orders are questioned before this Court on the ground that the same infringe upon the Fundamental Right guaranteed under Article 19(1)(a) and (b) of the Constitution. Always, the defence of the State is that the Act empowers them to prohibit the meetings and processions at public places, in view of Section 19(2) and 19(3) of the Constitution.
14.2. Hence, it is necessary to make a cursory perusal of the provisions of the Act.
14.3. Firstly, the Act was enacted by the British before Independence. The very purpose of the Imperial Power was to curb the Freedom Movement then. The power under the Act was exercised only for the said purpose by the British. This shall be borne in mind, while construing the provisions of the Act. In P. Nedwnaran v. State of Tamil Nadu and Others, 1999(1) L.W. (Crl.) 73, Hon''ble Mr. Justice Jayasimha Babu of this Hon''ble Court held in categorical terms at paragraphs 16 and 17 that the power under the Act cannot be used in the same manner as used by the British, after India attained Independence and after the enactment of the Constitution. This judgment was quoted with approval in so many later judgments of this Court.
14.4.(i) Section 41(1) of the Act empowers the Commissioner of Police for Chennai to regulate the conduct of assemblies, meetings and processions in public places.
14.4.(ii). Two things could be noticed in Section 41(1) of the Act. Firstly, the purpose of Section 41(1) of the Act is only for regulation of meetings and processions in public places. Section 41(1) of the Act does not contemplate prohibition. Thus, even the Colonial regime thought of only regulating and not prohibiting the meetings, assemblies and processions in public places.
14.4.(iii). Secondly, Section 41(1) of the Act seeks to prohibit the use of music or sound amplifiers in any area. Prohibition will be resorted to only for this purpose. Even the use of sound amplifiers would not be prohibited in total and the prohibition would be confined to an area.
14.5. It is true that Section 41(2) empowers the Commissioner of Police to prohibit public meetings and processions by way of a general order. However, the Act makes stringent condition on the Commissioner of Police to use this power. Assembly/meeting/procession in public places could be prohibited by the Commissioner only if it is necessary for the preservation of the public peace or public safety, not otherwise. The prohibitory order shall remain in force for 15 days only. Without the sanction of the Government, the prohibitory order of the Commissioner would not remain in force beyond 15 days. If there is no sanction from the State Government, the prohibitory order of the Commissioner of Police would lapse after 15 days.
14.6. Further, Section 41(2) to 41(4) of the Act shall be read together. Even if there is a general prohibitory order issued by the Commissioner of Police under Section 41(2) of the Act, Section 41(3) of the Act provides for the conduct of the public meetings and processions with the permission of the Commissioner of Police after making an application for the said purpose and the Commissioner of Police shall pass an order under Section 41(3)(b) of the Act, either granting or refusing permission to conduct the public meetings and processions. If the Commissioner of Police refuses permission, he shall record reasons for the same. If the Commissioner grants permission, he could impose some conditions. Before passing an order refusing permission, as per Section 41(4) of the Act, the Commissioner shall hear the person, who made application seeking permission to conduct the public meetings and processions at public place. The applicant could also be represented through a Pleader.
14.7. Section 41(5) of the Act provides the power to Commissioner to depute one or more police officers to be present in the meetings/assemblies/processions in public place, for the purpose of reporting about the said meetings/assemblies/processions.
14.8. Section 41(6) of the Act makes the infringement of rules and conditions punishable.
14.9. Section 41(7) of the Act deals about the mode of service of the order granting or refusing permission under Section 41(3)(b) of the Act.
14.10.(i). Section 41(8) of the Act is an exception to the whole scheme of Section 41. The religious meetings, sports meetings, processions on the occasion of the marriages, funeral processions and religious processions, public meetings held under any Statute or any express legal authority could take place without any restriction, as Section 41 would have no application in these matters.
14.10.(ii). Further, the Government could exempt any public meetings or class of public meetings from the purview of Section 41 of the Act by a general or special order.
14.11. Section 41(9) of the Act states that for the purpose of Section 41, private place is deemed as public place with respect to assemblies/meetings/processions. Though Section 3 of the Act defines public place, Section 41(9) of the Act deems a private place as public place.
15.1. The scheme of Section 41 of the Act, as enacted before Independence, in my considered view, is mainly to regulate the assemblies/meetings/processions in public places, while the Imperial Power retained the power to prohibit the assemblies/meetings/processions in public places in certain circumstances.
15.2. It is relevant to take note of the introductory note to Section 41 of the Act and the same is as follows:
"41. Power to regulate assemblies, meetings and processions in public places, etc."
The introductory note and a reading of the entire Section 41 also makes it clear that the purpose is only to regulate the assemblies/meetings/processions in public places.
15.3. As per the scheme of the Act, the Commissioner of Police could pass a general prohibitory order under Section 41(2) of the Act only for 15 days and thereafter, the order would lapse, if sanction is not obtained from the State Government. Even if the Commissioner of Police thought it fit to pass a general prohibitory order under Section 41(2) of the Act, Section 41(3) of the Act provides for the conduct of assemblies/meetings/processions in public place, that is covered by the prohibitory order, on getting permission from the Commissioner for conducting the assemblies/meetings/processions in public place. Thus, the scheme and purpose of the Act, enacted by the Imperial Power, is to regulate the assemblies/meetings/processions in public places and not to prohibit the same.
15.4. After coming into force of the Constitution, that guarantees its Citizens to protect the valuable Fundamental Rights under Article 19 of the Constitution and declares in the Preamble to secure its Citizens the Liberty of thought, expression, belief, faith and worship, I am of the considered view that the General Rule would be to protect the Fundamental Rights and resort to the restriction imposed by the law made under Article 19(2) to (6) shall be made only in exceptional circumstances.
15.5.(i). As far as the meetings in private places are concerned, in my considered view, the scheme of the Act is not to prohibit the same and it is only to regulate the meetings in private places, if such meetings take place within the area covered by the general prohibitory order issued under Section 41(2) of the Act. This regulatory power is derived by giving wider meaning to the ''private place'' under Section 41(9) of the Act. But for Section 41(9) of the Act, the Commissioner of Police could not even have the regulatory power in respect of meetings in private places, which come under the area covered under the general prohibitory order passed under Section 41(2) of the Act.
15.5.(ii). At this juncture, it is relevant to take note of Section 41(8) of the Act. Section 41(8) of the Act exempts various assemblies/meetings/processions even in public places. As far as public meetings are concerned, Section 41(8) of the Act provides power to the State Government to exempt from the purview of Section 41 of the Act for some public meetings, if it so desires.
15.5.(iii). Thus, I am of the firm view that the scheme of Section 41 of the Act is not to prohibit meetings in private places. At the most, the State could regulate the meetings in private places. This regulatory power is also to protect the Fundamental Rights of the Citizens, who have chosen to exercise their Rights under Article 19(1)(a) and (b) of the Constitution to meet in private place.
15.5.(iv). Apart from sending Police Officers to report on the meetings in private places under Section 41(5) of the Act, the Commissioner could regulate with regard to use of sound amplifiers and also the timings of the meetings etc..
15.6. Section 41(2) of the Act contemplates the issuance of general prohibitory order by the Commissioner of Police prohibiting assemblies/meetings/processions in public place. Though Section 41(2) of the Act does not mention "public place", the reading of entire Section 41 and particularly, Section 41(3) and 41(4), which are referred to in Section 41(2) of the Act, the prohibition of assemblies/meetings/processions as contemplated in Section 41(2) is with respect to public place.
15.7. Seeking permission under Section 41(3) of the Act for assembly/meeting/procession in a public place from the Commissioner of Police would arise only if there is a general prohibitory order in operation under Section 41(2) of the Act. This is made clear by the opening words of Section 41(3)(a) of the Act, namely, "When the order referred to in sub-section (2) is in force,....". That is, if there is no general prohibitory order in force, then the Citizens could conduct assemblies/meetings/processions in public place without any restriction. However, such assemblies/meetings/processions in public place could be regulated by the Commissioner or his subordinates as provided under Section 41(1) of the Act.
15.8. If a general prohibitory order is passed by the Commissioner under Section 41(2) of the Act prohibiting assembly/meeting/procession in a public place in an area, the same would last only for 15 days and thereafter, the prohibitory order would lapse, unless the State Government passes an order, under the proviso to Section 41(2) of the Act, for further continuation of the prohibitory order issued by the Commissioner. However, I am of the considered view that the State Government cannot indefinitely keep the prohibitory order in force, as the same is violative of Articles 14 and 19(1)(a) and (b) of the Constitution. Further, such a general prohibitory order under Section 41(2) of the Act cannot be normally passed by the Commissioner covering the entire City of Chennai. Even if it is passed, the same shall not be continued for a longer period, as it infringes upon the Fundamental Right guaranteed under the Constitution to the entire large population in the City of Chennai. As an example, if such general prohibitory orders are passed prohibiting assembly/meeting/procession in and around an area, namely, the Fort St. George, where the Tamil Nadu Legislative Assembly and the Tamil Nadu Secretariat are functioning, in my view, such a prohibitory order for the said area could remain in force only when the Tamil Nadu Legislative Assembly is in Session and the prohibitory order cannot be extended with sanction of the Government under the proviso to Section 41(2) of the Act for an indefinite period. But, the prohibitory order under Section 41(2) of the Act covering the entire City of Chennai cannot be issued indiscriminately.
16. The learned Advocate General submitted that the impugned order was passed under Section 41(2) of the Act. I am not in agreement with the said submission. Firstly, as held by me, Section 41(2) of the Act contemplates passing of a general prohibitory order only by the Commissioner of Police. It is true that the Commissioner of Police passed a general prohibitory order under Section 41(2) of the Act prohibiting assembly/meeting/prohibition in public places in the entire City of Chennai for 15 days from 09.04.2015 to 24.04.2015. If anybody intends to conduct assembly/meeting/procession in public place in the area covered by the prohibitory order, the concerned person shall seek permission under Section 41(3) of the Act before the Commissioner and the Commissioner alone shall pass an order under Section 41(3)(b) of the Act, either granting or refusing permission, after hearing the concerned person under Section 41(4) of the Act. Both the general order under Section 41(2) of the Act and the order, granting or refusing permission under Section 41(3)(b) of the Act shall be passed only by the Commissioner. The Act nowhere contemplates delegation of power to pass order under Section 41(3) of the Act to any person other than the Commissioner. Only the regulatory order under Section 41(1) of the Act could be passed by the Commissioner or any person higher in rank than the Head Constable. The impugned order was passed by the Assistant Commissioner. Hence, the impugned order was passed without jurisdiction and without authority as the Assistant Commissioner has no power either to pass order under Section 41(2) of the Act or under Section 41(3)(b) of the Act. Hence, the impugned order is liable to be interfered with.
Analysis of the Constitutional provisions:
17.1. Article 19(1)(a) and (b) of the Constitution read with the Preamble of the Constitution guarantees the valuable Fundamental Right of freedom of speech and expression and to assemble peacefully and without arms.
17.2. It is relevant to take note that Article 19 of the Constitution is under the caption "Right to Freedom". Further, Article 19 begins with the introductory note "Protection of certain rights regarding freedom of speech, etc.". The Rights guaranteed under Article 19 of the Constitution are in Part III of the Constitution with the heading, "Fundamental Rights". Hence, the Constitutional goal is to "protect" the various freedoms guaranteed to its Citizens.
17.3. At this juncture, it is also useful to refer to the declaration made in the Preamble to the Constitution that seeks to secure its Citizens, among other things, the Liberty of thought, expression, belief, faith and worship.
17.4. While guaranteeing the aforesaid Rights, restrictions are also imposed under Article 19(2) and (3) of the Constitution by enabling the State to make laws in this regard.
17.5. The precious Rights conferred on the Citizens by Article 19 of the Constitution cannot be interfered with lightly, by the laws so made. Any restrictions on those Rights must be for the purposes stated in Article 19(2) and (3) of the Constitution and those laws shall be narrowly interpreted so as to protect and uphold the Fundamental Rights.
17.6. The State shall always endeavour to protect the Fundamental Rights guaranteed under the Constitution.
17.7. The Fundamental Rights cannot be taken away at the instance of the persons, who are having opposite point of view. Those persons having opposite point of view could not dictate terms to the State and they could not be allowed to determine the exercise of the Rights of the Citizens guaranteed under Article 19 of the Constitution. When persons having opposite point of view try to interfere with the Fundamental Right of the Citizens guaranteed under Article 19, the State shall give protection to the Citizens in order to exercise their Fundamental Rights and the State shall not deprive the Fundamental Rights citing the law and order problems that could be created by the persons and organisations having opposite point of view. In this regard, reference may be had to the decision of the Apex Court in
17.8.(i) It is also useful to take note of the Fundamental Duties of a Citizen as enshrined in Article 51A(h) under Chapter IV A of the Constitution, which states that it shall be the duty of every Citizen to develop the scientific temper, humanism and the spirit of inquiry and reform.
17.8.(ii). As far as Tamil Nadu is concerned, Self-respect Marriages are statutorily approved ones in view of insertion of Section 7A to the Hindu Marriage Act. Though Chapter IV A of the Constitution in Article 51 dealing with Fundamental Duties of Citizens that includes Article 51A(h) of the Constitution was inserted in the Constitution after the insertion of Section 7A in the Hindu Marriage Act in Tamil Nadu, I am of the view that Section 7A of the Hindu Marriage Act is in consonance with Article 51A(h) of the Constitution.
17.8.(iii). As per Section 7A of the Hindu Marriage Act, a Marriage solemnized without the Priest, without recital of the Mantras and without following the customs, rites and ceremonies that were hitherto followed is a valid one and the tying of Thali is only optional and it is not necessary to make such a Marriage valid. Hence, voluntary removal of the Thali by the women belonging to Self-respect Movement cannot be objected to by the persons having different views on wearing of the Thali. In this regard, reference may be had to the judgment of the Apex Court in
18. In view of the above discussion, I am of the view that the impugned order is violative of Article 19(1)(a) and (b) of the Constitution and the State shall provide adequate police protection to the petitioner to protect and to exercise the Fundamental Right guaranteed under Article 19(1)(a) and (b) of the Constitution.
On facts:
19.1. The learned Advocate General submitted that the State is neither supporting nor opposing the point of view of the petitioner and the impugned order was passed anticipating law and order problem that could be created by some groups, as per the Intelligence Reports. It is absolutely not the case of the State that the petitioner would cause law and order problem and no allegation is made by the State questioning the credentials of the petitioner Movement with regard to its strict adherence to the principles of non-violence.
19.2. I have perused the Intelligence Reports. In the Report in dated 07.04.2015, submitted by the Inspector of Police, Religious Intelligence to the Joint Commissioner, Intelligence, it is stated that some Hindu Organizations are opposing the proposed Programmes of the petitioner that would take place on 14.04.2015 and some of the Organizations support the Programmes. It is also stated that they anticipated that on 13.04.2015 at any time, those Hindu Organizations could organize violent demonstrations in front of the house of the Hon''ble the Chief Minister or the leader of the petitioner Organization.
19.3. At any stretch of imagination, this could never be a reason to infringe upon the Fundamental Rights of the petitioner. In fact, the Reports nowhere make any adverse remarks about the petitioner. The Report only suggests to provide adequate protection to the petitioner to safeguard the Fundamental Rights of the petitioner. It is relevant to extract the following passage of the Report dated 07.04.2015:
19.4. The next document, relied on by the learned Advocate General, that also finds place in the sealed cover, is the Memorandum of the Commissioner of Police dated 13.04.2015 to his subordinate officers. The same is extracted hereunder:
"It is learnt that members of Hindu Munnani have proposed to organize agitation by wearing saffron dress and garland to Periyar statues besides applying vibuthi, kumkum to them at various places in the State on 14.4.2015, protesting against the announcement of "Thali" removing function and beef eating feast programme by Dravidar Kazhagam in Chennai on 14.4.2015.
2. Please keep a close watch on development and take adequate precautionary measures to maintain law and order and ensure that nothing untoward happens."
19.5. This Memorandum also nowhere states anything against the petitioner Movement. On the other hand, the Memorandum speaks a volume about the conduct of the Organisations having opposing points of view to that of the petitioner. The proposed plan of the Organizations referred to in the Memorandum to organise agitation to apply vibuthi and kumkum to Thanthi Periyar Statues in public places in Tamil Nadu and to make those Statues to wear Saffron dress is nothing but vandalism. In fact, the Memorandum also seeks to take only precautionary measures to prevent the proposed plan of those Organizations mentioned therein and to maintain law and order. Absolutely, nothing is said adversely against the petitioner. Hence, I am of the view that instead of passing the impugned order, the State shall take all steps to prevent the Organizations mentioned in the Memorandum in carrying out the vandalism.
19.6. The Report dated 07.04.2015 and the Memorandum dated 13.04.2015 only seek to provide protection and to take precautionary measures to maintain law and order, in view of threats made out by some persons and Organisations. In those documents, nowhere it is stated that the petitioner shall not be permitted to hold the meeting. In any event, the aforesaid Intelligence Report and the Memorandum make it clear that the law and order problem could be created by some groups, who are opposing the point of view of the petitioner. In my considered view, the same cannot be the reason to deprive the Fundamental Right of the petitioner.
19.7. The persons having opposite point of view would not be permitted to determine as to whether a Citizen could exercise his Fundamental Right to freedom of speech and expression or not. The State is not helpless. The State shall control those persons in order to safeguard the Fundamental Rights. In fact, the Apex Court has held so in a catena of decisions and a few such decisions are discussed in the later portion of this judgment.
19.8. Furthermore, another Intelligence Report of the Inspector of Police, Religious Intelligence, in dated 09.04.2015 was submitted to the Joint Commissioner. It is better to extract the entire Report dated 09.04.2015 which reads as follows:
19.9. A careful reading of the aforesaid Report discloses that some Organizations and persons having opposite point of view of the petitioner were permitted to conduct demonstration in a public place on 09.04.2015 condemning the proposed Programmes scheduled to be held by the petitioner on 14.04.2015.1 am of the view that those Organizations and the persons having opposite point of view were rightly permitted to have a demonstration in a public place to express their point of view opposing the point of view of the petitioner and they were permitted to exercise the Right guaranteed under Article 19(1)(a) and (b) of the Constitution. The Report also suggests to take precautionary measures in view of the opposite point of view. In my view, considering the entire Intelligence Report, the State should have taken adequate measures to maintain law and order and to curb any law and order problem that could be created by the Organizations having opposite point of view and the State shall not, on the other hand, prohibit the Programmes of the petitioner, that too, when the Programmes take place in a private place.
19.10. Hence, I am of the considered view that the action of the State in infringing upon the Fundamental Rights of the petitioner in passing the impugned order, anticipating law and order problem at the hands of the persons and Organizations having opposite points of view, is highly arbitrary, unreasonable and violative of Articles 14, 19(1)(a) and (b) of the Constitution and the impugned order is liable to be interfered with.
Principles of Natural Justice:
20.1. According to the petitioner, the impugned order was passed depriving the basic Right of the petitioner in flagrant violation of the Principles of Natural Justice, as the impugned order was passed without hearing the petitioner. Further, according to the petitioner, personal hearing, as provided under Section 41(4) of the Act, was not given before the impugned prohibitory order was passed, though the petitioner gave a representation dated 29.03.2015 to the Commissioner of Police in this regard.
20.2. As the impugned order is admittedly passed without hearing the petitioner, the learned Advocate General sought to justify the same by contending that the petitioner did not make any application under Section 41(3) of the Act and hence, no opportunity need be given to the petitioner under Section 41(4) of the Act, before passing the impugned order.
20.3. I am not in agreement with the submission of the learned Advocate General. Firstly, the impugned order is an adverse order depriving the Fundamental Right of the petitioner under Article 19(1)(a) and (b) of the Constitution. It is well-settled by a catena of decisions that if any order results in civil consequences, the order passed without hearing the person aggrieved is illegal. It is more so, if the Constitutional Right is deprived of.
20.4. Secondly, the impugned order itself refers to the representation dated 29.03.2015 of the petitioner in the reference as well as in paragraph 5 as the application of the petitioner. A reading of the para 2 of the impugned order and the Intelligence Reports also do not support the contention of the learned Advocate General. Furthermore, when this Court put a question to the learned Advocate General as to whether any format is prescribed for making application under Section 41(3) of the Act, the learned Advocate General fairly submitted that no form is prescribed.
20.5. Hence, I am of the view that the impugned order was passed in violation of the Principles of Natural Justice and Section 41(4) of the Act. For this reason also, the impugned order is liable to be interfered with.
First Information Report:
21.1. It is useful to extract the relevant passage in paragraph 4 of the impugned order relating to registration of the First Information Report against the petitioner:
21.2. The learned Senior Counsel for the petitioner submitted that the above said reference made in paragraph 4 of the impugned order about the order of this Court is bereft of any details and the petitioner is not aware of registration of any such First Information Report.
21.3. While so, the learned Advocate General produced the copy of the order of Hon''ble Mr. Justice R.N. Prakash dated 10.04.2015 in Crl. O.P. No. 9058 of 2015 of this Court along with the First Information Report No. 634 of 2015 dated 11.04.2015 on the file of the Gl, Vepery Police Station, Chennai.
21.4. The learned Senior Counsel, on perusing the same, submitted that such stereotyped orders are routinely passed everyday in so many cases by this Court.
21.5. It is useful to extract the order of Hon''ble Mr. Justice P.N. Prakash dated 10.04.2015 in Crl. O.P. No. 9058 of 2015:
"This petition has been filed seeking a direction to the respondent to register the petitioner''s complaint dated 06.04.2015 and take appropriate action against the offenders/perpetrators in accordance with law.
2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor, appearing for the State.
3. It is seen that the petitioner has given a complaint dated 06.04.2015 to the Commissioner of Police and not to the Station House Officer, as required under Section 154 Cr.P.C.
4. In view of the above, the petitioner is directed to hand over a complaint in person to the jurisdictional Station House Officer. On receipt of the same, if the same discloses cognizable offence, the Station House Officer concerned may take action in accordance with law laid down by the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh [2013 (4) [Crimes] 243 (SC)].
With the above observation this petition is closed. Consequently, connected miscellaneous petition is closed."
21.6. I have perused the First Information Report. The same is based on the complaint dated 06.04.2015 of the petitioner in W.P. No. 10585 of 2015 to the Inspector of Police, Gl Vepery Police Station, Chennai. Thereafter, the petitioner in W.P. No. 10585 of 2015 moved this Court under Section 482 of the Code of Criminal Procedure by filing Crl. O.P. No. 9058 of 2015 seeking a direction of this Court to the Vepery police to register the First Information Report based on his complaint. The Criminal Original Petition was disposed of on 10.04.2015, as stated above.
21.7. A perusal of the First Information Report discloses that the crux of the complaint is that the Programmes of the petitioner relating to the voluntary removal of the Thali and the Beef Feast are against the Hindu Sentiments and therefore, the petitioner shall be arrested and prosecuted.
21.8. The following relevant passages in the First Information Report is extracted hereunder:
Translation by Court:
".....According to Hindu customs, the Thali worn by the bride to the accompaniment of the recitation of Vedas and Mantras in the witness of Agni is the full protection to the woman....."
Translation by Court:
"...He has announced that there would be a voluntary removal of Thali as well as a beef feast on the most significant day for the Hindus, that is, the 14.04.2015, on the Tamil New Year''s Day...."
21.9. As far as the first passage is concerned, I am of the view that the complainant could not state that wearing of the Thali is compulsory for a married Hindu Woman. It is for the individual to decide as to whether to wear the Thali or not to wear the Thali. If one does not like to wear the Thali and voluntarily removes it, the complainant could not object to the same. It is not the complaint that the petitioner would use force and violence on women to remove the Thali.
21.10. Further, Section 7A of the Hindu Marriage Act and Self-respect Marriages are dealt in detail above. Hence, in my view, the allegation relating to the Programme of voluntary removal of the Thali would not constitute any offence.
21.11. The other allegation is relating to the Beef Feast. This also could not constitute an offence, in view of the judgment of Hon''ble Mr. Justice T.S. Sivagnanam dated 31.03.2015 in W.P. No. 9392 of 2015 (K. Dilipan v. Inspector of Police, G-5 Police Station, Chennai - 600 010) and the said judgment is annexed in the typed-set of papers. The beef feast is meant for the participants in the Programmes. The petitioner could not decide about what food one should serve and one should consume. No one can determine the food chart of others. It is solely for the individual to decide on the food which, he/she likes to eat. The hue and cry against the Beef Feast leading to lodging of the FIR is blatant interference of ones Fundamental Right. One cannot also lose sight of the fact that the Beef eating is predominant food habit of a substantial section of the society. The protest against the Beef feast on 14.04.2015 reminds us the protest and Vandalism let loose on the untouchables in 1935 for their attempt to cook food using Ghee and it is pertinent to quote, at this juncture, the Paragraph 2.12 from the famous book/Speech of Dr. B.R. Ambedkar, namely, "Annihilation of Caste" and the same is extracted hereunder:
"2.12. A most recent event is reported from the village of Chakward in Jaipur state. It seems from the reports that have appeared in the newspapers that an Untouchable of Chakwara who had returned from a pilgrimage had arranged to give a dinner to his fellow Untouchables of the village, as an act of religious piety. The host desired to treat the guests to a sumptuous meal, and the items served included ghee (butter) also. But while the assembly of Untouchables was engaged in partaking of the food, the Hindus in their hundreds, armed with lathis, rushed to the scene, despoiled the food, and belaboured the Untouchables who left the food, and ran for their lives. And why was this murderous assault committed on defenceless Untouchables? The reason given is that the Untouchable host was impudent enough to serve ghee, and his Untouchable guests were foolish enough to taste it. Ghee is undoubtedly a luxury for the rich. But no one would think that consumption of ghee was a mark of high social status. The Hindus of Chakwara thought otherwise, and in righteous indignation avenged themselves for the wrong done to them by the Untouchables, who insulted them by treating ghee as an item of their food - which they ought to have known could not be theirs - consistently with the dignity of the Hindus. This means that an Untouchable must not use ghee, even if he can afford to buy it, since it is an act of arrogance towards the Hindus. This happened on or about the 1st of April 1936!...."
21.12. Furthermore, I have carefully read the Constitution Bench judgment of the Apex Court in
"106. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where Preliminary Inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to Medical negligence on the part of Doctors. It will be unfair and inequitable to prosecute a Medical professional only on the basis of the allegations in the complaint.
....
111. ....
(vi). As to what type and in which cases Preliminary Inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which Preliminary Inquiry may be made are as under:
(a) Matrimonial Disputes/Family Disputes
(b) Commercial Offences
(c) Medical Negligence cases
(d) Corruption cases
(e) Cases, where there is abnormal delay/laches in initiating Criminal prosecution, for example, over three months'' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions, which may warrant Preliminary Inquiry."
21.13. Hence, I am of the view that the complaint of the petitioner in W.P. No. 10585 of 2015 is covered by paragraph 106 read with para 111 (vi) of the judgment in Lalita Kumari v. Government of Uttar Pradesh (supra) case and the police ought not to have registered the First Information Report without preliminary inquiry. The police erroneously understood the order of this Court dated 10.40.2015 in Crl. O.P. No. 9058 of 2015 as a direction to register the First Information Report straight-away.
21.14. Hence, placing reliance on the First Information Report by the learned Advocate General would be of no use.
21.15. At this juncture, reference may be had to the judgment of the Apex Court in S. Khusboo v. Kanniammal (supra), and the same is dealt in detail at the later part of this order.
Judgments:
22.1. In my view, the latest judgment of the Hon''ble Mr. Justice V. Ramasubramanian in Durai Sankar v. Secretary to the Government, 2015 (1) CTC 49 : LNIND 2014 MAD 6144 : (2014) 8 MLJ 114 is directly on the point.
22.2. The petitioners therein are the members of Rashtriya Swayam Sevak Sangh, shortly, RSS. RSS wanted to hold a peaceful march to celebrate the Founder''s Day on 09.11.2014 to be followed by a public meeting at various places in Tamil Nadu. The petitioners made representations to the Commissioner of Police or the District Superintendent of Police, as the case may be, seeking permission to organise a procession and to conduct a meeting. The representations were rejected and permission was refused. The writ petitions were filed challenging the order refusing permission to procession and public meeting.
22.3. The refusal was on the following, among other reasons, (i) there is a prohibitory order; (ii) RSS volunteers wear an uniform that resemble as that of a police force and also they carry lathis; (iii) There are Intelligence Reports that terrorist outfits are likely to engage in disruptive activities.
22.4. The learned Judge held that the uniform of Khaki half trouser and white shirt that the RSS volunteers wear was designed way back in 1920s and no member of police force wears half-trousers and white shirt. Therefore, there is no bar for RSS volunteers to wear khaki half trousers and white shirts.
22.5. The learned Judge considered at length various judgments of the Apex Court and this Court and held in paragraph 11 as follows:
"11. A careful comparison of Section 41 of the Chennai City Police Act, 1888 with Section 30 of the Police Act, 1861 would show that the power to prohibit any assembly, meeting or procession is available only to the Commissioner, under Section 41(2) of the Chennai City Police Act, 1888. This power is also restricted by the proviso thereunder. Under Section 41(3)(a), a person intending to take out a procession, may make an application to the Commissioner seeking permission, even if a prohibitory order is in force under Section 41(2). A careful reading of clause (b) of sub-section (3) of Section 41 of the Chennai City Police Act, 1888 would show that the grant of permission for convening an assembly or meeting and promoting a procession, is the rule and the refusal of permission is the exception. Even if the Commissioner decides to refuse permission under clause (b) of sub-section (3), he cannot refuse, without affording an opportunity of appearing in person or through pleader and showing cause against the proposal to refuse. This is in terms of sub-section (4)."
22.6. Thus, the competent authority to pass order refusing permission for assembly/meeting/procession in Chennai City under Section 41(3)(b) of the Act is the Commissioner of Police, when prohibitory order under Section 41(2) of the Act is in force, as held above, by the learned Judge in paragraph 11 of the order.
22.7. In paragraph 25, the learned Judge considered 19 judgments and out of those judgments, three judgments cited by the learned Advocate General in this case, were also considered.
22.8. Out of those 19 judgments referred to in paragraph 25 of the judgment, I am of the view that paragraph 25(vii) of the judgment, wherein, the learned Judge has referred to two Division Bench judgments of this Court, is more relevant and paragraph 25(vii) is extracted hereunder:
"25.
....
(vii) But, there are at least two Division Bench decisions of this Court, which require to be taken note of. Both the decisions took note of the development of law in entirety, starting from Himat Lal K. Shah. The first is that of the Division Bench in C.J. Rajan v. Deputy Superintendent of Police CDJ 2008 MHC 613 . In the said case, the Division Bench traced the history from Himat Lal K. Shah and the journey that the law undertook through the decision in S. Rangarajan and eventually, the Division Bench came to the conclusion that such meetings are not to be prohibited. The next decision of the Division Bench is the one between Home Secretary and Era. Selvam W.A. Nos. 842 and 843 of 2013 dated 13.4.2013. In the said case, the District Administration relied upon two decisions of the Supreme Court and the decision of the Division Bench of this Court. The first decision relied on by the State was one in Dr. Praveen Bhai Thogadia. The second case relied upon by the State before the Division Bench in that case was Ramlila Maiden Incident,
22.9. After considering various judgments referred to in paragraph 25 of the judgment, the learned Judge has held in paragraph 27 that in those cases, various Organizations were permitted to hold processions and public meetings and therefore, the petitioner therein, namely, RSS, could not be denied permission. Hence, I am of the view that a passage in paragraph 27 of the judgment of Hon''ble Mr. Justice V. Ramasubramanian is more relevant to the issue involved in this case and the same is extracted hereunder:
"27. ...Therefore, after having permitted rallies, processions and public meetings for several organisations, it may not be possible to deny such permission to the petitioners."
22.10. The learned Judge also recorded the undertaking of the counsel for the petitioner that the processionists would not carry lathis.
22.11. Ultimately in paragraph 29, the writ petitions were allowed by the Hon''ble Mr. Justice V. Ramasubramanian and directions were issued to the respondents therein to grant permissions to the petitioners therein to take out processions in the routes specified by the respondents and to hold public meetings in the places earmarked by the respondents with such reasonable restrictions as they deem fit and proper.
22.12. I am in full agreement with Hon''ble Mr. Justice V. Ramasubramanian in holding that while several Organizations are permitted to take rallies, processions and public meeting, the petitioners therein, namely, the RSS, could not be denied permission.
22.13. In my view, the petitioner herein stands in a better footing, as in that case, the petitioner therein, namely, RSS, wanted to conduct processions and public meetings in Chennai City as well as at various public places in the Districts, while the petitioner herein does not seek permission to conduct processions and public meetings and the petitioner seeks permission only to conduct programmes in a private place at their own premises.
22.14. Applying the said principle enunciated by Hon''ble Mr. Justice V. Ramasubramanian in paragraph 27 of the order reported in Durai Sankar v. Secretary to the Government (supra) following various judgments of the Apex Court and this Court, I am also inclined to allow this writ petition.
22.15. One more relevant aspect to be taken note of is that a Division Bench consisting of Hon''ble Mr. Justice Satish K. Agnihotri and Hon''ble Mr. Justice K.K. Sasidharan, declined to grant stay the order of Hon''ble Mr. Justice V. Ramasubramanian reported in Durai Sankar v. Secretary to the Government (supra) in W.A. Nos. 1503and 1524 to 1529 of 2014 on 18.11.2014. As the Division Bench declined to stay the order of Hon''ble Mr. Justice V. Ramasubramanian reported in Durai Sankar v. Secretary to the Government (supra), the same is another reason to allow this writ petition.
22.16. Though the RSS was permitted to organise procession as per the order of this Court dated 07.11.2014, in some of the districts, the police objected for wearing uniforms by RSS volunteers and the police arrested them for wearing uniform and took them to marriage halls and detained them till the evening and then let them off.
22.17. This led to the filing of the contempt petitions Cont. R. Nos. 3140 to 3142 and 3151 to 3154 of 2014.
22.18. The contempt petitions were closed on 27.11.2014, though the learned Judge recorded a finding in paragraph 11 of the order in the Contempt Petitions that it is a clear case of wilful disobedience of order of this Court, taking note of the fact that after he passed the order on the forenoon on 07.11.2014, Friday, a mention was made to the Hon''ble First bench to move an appeal as urgent matter by the Sate, but the same was declined by the Hon''ble First Bench, consisting of the Hon''ble Mr. Justice S.K. Kaul, Chief Justice and Hon''ble Mr. Justice M. Sathyanarayanan. While closing the contempt petitions, the learned Judge noted that the action of the State was of bad taste and bad faith. It is relevant to extract paragraph 15 of the said order of Hon''ble Mr. Justice V. Ramasubramanian dated 27.11.2014 in Cont. P. Nos. 3140 to 3142 and 3151 to 3154 of 2014 as hereunder:
"15. But I should point out that 07.11.2014 was a Friday. I passed orders on the forenoon of 07.11.2014. It was reported in the press on 08.11.2014 that an attempt was made to make a mention before the Hon''ble First Bench for moving an appeal as an urgent matter. But the request was turned down. 08.11.2014 and 09.11.2014 happened to be Saturday and Sunday respectively. The date of the procession was 09.11.2014. Therefore, there is no way an appeal could have been moved between 07.11.2014 and 09.11.2014 especially after the permission to move an appeal was rejected. In such circumstances, I would choose to give the benefit of doubt to the respondents despite the fact that they have prevented the petitioners from wearing an uniform that they have always worn."
23.1. The judgment of the Apex Court in S. Rangarajan v. Jagjivan Ram (supra), is relied on by this Court, almost in all cases, whenever the prohibitory order is set aside.
23.2. That case relates to grant of "U" Certificate to a Tamil Film, namely, "Ore Oru Gramathile", by the Censor Board. The story revolves around a poor Brahmin girl, who obtained a higher post in Government service by producing a false community certificate as if she belongs to Scheduled Caste. She proves to be a good and honest officer. When action was taken by the Government, the people came in support of the honest officer. The film criticized the reservation in jobs based on caste and it advocated that the Reservation shall be based on economic backwardness.
23.3. There was a wide protest from some political and social Organizations against the Film. The certificate given to the Film was challenged in a writ proceedings before this Court. A learned Single Judge dismissed the writ petition. The matter was taken before a Division Bench of this Court. The Division Bench allowed the writ appeal on the ground that the film speaks against Reservation policy that was provided under the Constitution of India and that there is a likelihood of public order problem that could be caused by the persons and Organizations that support the reservation policy, as envisaged in the Constitution.
23.4. The matter was taken to the Apex Court. The Apex Court reversed the judgment of the Division Bench of this Court.
23.5. It is a landmark judgment of the Apex Court on Article 19(1)(a) of the Constitution. The Apex Court held in categorical terms that a Citizen has a Fundamental Right to express a different point of view from that of the one envisaged in Constitution. If some Organizations opposing the point of view threatens to damage the Cinema theater for exhibiting the Film that speaks for a different point of view, the State shall protect the Citizen to exercise their rights guaranteed under Article 19(1)(a) of the Constitution by preventing the Organizations from interfering with the exercise of the Fundamental Right by the Citizens.
23.6. Relevant passages from paragraphs 34, 35, 41 and paragraphs 50, 51 and 53 of the judgment are usefully extracted hereunder:
"34. ...All that the film seems to suggest is that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic backwardness is better....
35. ...In democracy it is not necessary that every one should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Every one has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means.
41. ...The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.
50. This takes us to the validity of the plea put forward by the Tamil Nadu Government. In the affidavit filed on behalf of the State Government, it is alleged that some organisations like the Tamil Nadu Scheduled Castes/Scheduled Tribes People''s Protection Committee, Dr. Ambedkar People''s Movement, the Republican Party of India have been agitating that the film should be banned as it hurt the sentiments of people belonging to Scheduled Caste/Scheduled Tribes. It is stated that the General Secretary of the Republican Party of India has warned that his party would not hesitate to damage the cinema theatres which screen the film. Some demonstration made by people in front of "The Hindu" office on March 16, 1988 and their arrest and release on bail are also referred to. It is further alleged that there were some group meetings by Republican Party members and Dr. Ambedkar People''s Movement with their demand for banning the film. With these averments it was contended for the State that the exhibition of the film, will create very serious law and order problem in the State.
51. We are amused yet troubled by the stand taken by the State Government with regard to the film which has received the National Award. We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be sup- pressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.
53. We end here as we began on this topic. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quick''s and of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself."
23.7. Applying the said principle, I am of the view that the writ petition deserves to be allowed.
24.1. The judgment of the Apex Court in S. Khushboo v. Kanniammal (supra), is also relevant to the issue involved in this case.
24.2. In that case, the appellant therein is a well-known actress. In September 2005, the appellant expressed her personal opinion to a fortnightly news magazine, namely, India Today, on premarital sex and live-in relationships. That opinion gave rise to registration of criminal cases against her at various places.
24.3. The appellant filed Criminal Original Petitions before this Court to quash those First Information Reports. This Court rejected the Criminal Original Petitions by the order dated 30.04.2008.
24.4. The appellant thereafter approached the Apex Court. The Apex Court allowed the appeal and quashed the First Information Reports pending at various places, including one at Madhya Pradesh. In paragraph 16, the Apex Court held that it was not proper to either condemn or endorse the views expressed by the appellant. The relevant passage in paragraph 16 is extracted hereunder:
"16. In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant...."
24.5. Thereafter, in paragraph 43, the Apex Court observed that 26% of the people did not think that it was not necessary for women to retain virginity till the time of marriage and the appellant was not alone in expressing such a view, even though it may be an unpopular view. The relevant passage in paragraph 43 is extracted hereunder:
"43. ...If we refer to one of the questions asked as part of the survey concerned, one of the answers shows that 26% of the people who responded to the same did not think that it was necessary for women to retain their virginity till the time of marriage. Clearly the appellant was not alone in expressing such a view, even though it may be unpopular or contrary to the mainstream social practices...."
24.6. It is also relevant to extract a passage in paragraph 44 of the said judgment which reads as hereunder:
"44. ...The threshold for placing reasonable restrictions on the "freedom of speech and expression" is indeed a very high one and there should be a presumption in favour of the accused in such cases...."
24.7. More importantly, the views expressed by the Apex Court in paragraph 46 is directly on the point to the issue involved in this case. Paragraph 46 of the judgment is extracted hereunder:
"46. Admittedly, the appellant''s remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive."
24.8. The Apex Court suggested to the complainants that if they disagreed with the views expressed by the appellant therein, they could very well contest the views through the news media or through any other public platform and they could not harass the appellant by filing the criminal cases. The relevant passage in paragraph 47 is extracted in this regard as hereunder:
"47. ...If the complainants vehemently disagreed with the appellant''s views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the "freedom of speech and expression''."
24.9. By applying the aforesaid judgment to the fact of this case, I am of the view that the people could have different views on wearing of the Thali by women. In Tamil Nadu, I have traced the history of Self-respect Marriages and insertion of Section 7-A in the Hindu Marriage Act. Hence, no one, including the petitioner in W.P. No. 10585 of 2015, cannot take objection about non-wearing of the Thali or voluntary removal of the Thali. The persons having opposite point of view are at liberty to propagate their views, as suggested by the Apex Court, in various ways.
25.1. The judgment of the Karnataka High Court in Hulikal Nataraju v. State of Karnataka represented by Sub Inspector of Police and K.H. Chetan (supra), is relevant for consideration. The Karnataka High Court in that case quashed the criminal proceedings pending in C.C. No. 1703 of 2006 on the file of Principal Civil Judge (Junior Division) and J.M.F.C., Madikeri, and also the complaint dated 27.02.2008 leading to the framing of the charge.
25.2. In that case, the petitioner is a Teacher. He travelled extensively to debunk miracles and try to find and establish the scientific truth behind the miracles. He performed a programme on miracles at Madikeri on 26.02.2006. He made statements that ''The eagle revolving round Garudagambha at Sri Aiyappaswamy Temple as false'' and also the ''Light that appears on Makara Sankranthi as false''. According to the complainant, these statements wounded the Hindu religious belief, practices and customs. Hence, the criminal case.
25.3. The Karnataka High Court opined that the investigation was not conducted properly and summoned the Home Secretary to explain as to why action should not be initiated against the Inspector, who conducted improper investigation. Pursuant thereto, action was taken and the Officer was imposed with the minor penalty of withholding of one increment for a period of one year.
25.4. After referring to Article 51-A(h) of the Constitution, the Karnataka High Court quashed the criminal proceedings, as stated above. I am of the view that paragraph 7 of the judgment is relevant and the same is extracted hereunder:
"7. This freedom of Speech includes freedom to dissent. Our Constitution do not recognise a freedom to destroy freedom to dissent. Any form of intolerance to dissent is dangerous to democracy. This right to dissent should be unhampered by the cramps of the past or the shackles of the present. French writer Voltaire said ''I do not agree with a view a word of what you say, but I will defend to death, your right to say it''. If a person exercises this freedom to dissent, State should not interfere unless it comes within the reasonable restrictions. The State is under an obligation to ensure that every citizen of India enjoys freedom of speech and expression which includes freedom to dissent."
26.1. The judgment of the First Bench of this Court, consisting of The Hon''ble Mr. Justice Mr. R.K. Agrawal, Chief Justice (as he then was) and Hon''ble Mr. Justice M. Sathyanarayanan, dated 26.11.2013 in W.P.(MD)Nos. 14673 of 2013 etc. is also relevant to this case, particularly, in view of the stand by the State in that case before this Court.
26.2. That case relates to Public Interest Litigation praying to ban the meetings/processions and conferences conducted by caste, religious and communal based organizations and to prohibit the caste/communal based Guru Poojas and Rallies.
26.3. The State took a stand before the Division Bench that it cannot be open to this Court to impose a complete ban. Paragraph 12 of the judgment is relevant in this regard and the same is extracted hereunder:
"12. Mr. A.L. Somayaji, learned Advocate General assisted by Mr. T.N. Rajagopalan, learned Special Government Pleader would submit that no doubt during the conducting of caste, religious and communal based rallies and Guru Poojas and memorial days, lives of certain persons were lost and sustainment of injuries and also damage to public properties, but a complete ban on such kind of meetings is not a solution. The learned Advocate General has also drawn the attention of this Court to the provisions of the Madras City Police Act, 1888, The Madras District Police Act, 1959 and Section 144 Cr.P.C. and would submit that all these provisions will come to the aid of the law and order machinery to maintain law and order and also to prevent any untoward happenings and since there is no statute/rules and regulations banning the holding of such kind of rallies and Guru Poojas, it cannot be open to this Court to impose a complete ban. It is the further submission of the learned Advocate General that meetings/seminars will be conducted to educate the public about the noble cause projected by the concerned leaders for the welfare of the people at large and in view of the increased rate of illiteracy among the people hailing from southern Districts, such a kind will be thing of a past and hence, prays for dismissal of these writ petitions."
26.4. In view of such a stand by the State before the First Bench of this Court, I am of the view that the State now cannot take a different plea in this case.
26.5. Further, in paragraph 21 of the judgment, the First Bench expressed its agreement with the views expressed by the Full Bench of the Kerala High Court in Peoples Council for Social Justice, Ernakulam v. State of Kerala and Others AIR 1997 Kerala 309 (FB) : LNIND 1997 KER 213, and extracted paragraphs 12 and 17 of the Full Bench judgment of the Kerala High Court. It is relevant to extract paragraph 21 of the judgment of the First Bench of this Court as hereunder:
"21. In
"12. The right to assemble peaceably and the right to form association or union and to have freedom of speech and expression for such association or union are valuable fundamental rights recognized under our Constitution. The right to take procession along with the highway is a part of this right. However, these rights should be exercised without causing injury or annoyance to others. As regards procession and street marches, the authorities have got every right to impose reasonable restrictions just as the participant of these processions and marches have got right to use the highway the ordinary citizens and pedestrians have also got equal right to pass and re-pass along the highway."
"17. ....
(i) The organizers of the procession or demonstration shall give advance notice to the highest Police Officer of the District or such other officer authorised by the Government at least six days before the procession or demonstration is intended to be held. The notice must contain a brief note giving the reasons and purpose of the demonstration or procession and the approximate number of participants.
(ii) The participants of procession/demonstration shall not be allowed to occupy the entire breadth of the road so as to obstruct the passing and re-passing of pedestrians or vehicles through the road. The processionists shall not be allowed to carry lengthy banners so as to occupy the entire breadth of the road. The police should restrict the length of the banners if it is likely that the same would cause obstruction to the pedestrians and vehicular traffic.
(iii) In all road junctions pedestrians shall be allowed to cut across the procession/demonstration and the police shall help the pedestrians to cross the road. Such crossing shall be once in every 10 minutes in every road junction and the police shall help and regulate the same by appropriate directions.
(iv) If any participant in the demonstration/procession engages in disorderly conduct he shall be dealt with according to law.
(v) Participants of processions/demonstrations shall not be allowed to carry any weapons or instruments that could be used as dangerous weapons.
(vi) There shall be sufficient contingent of police and the police shall take all possible steps to regulate public assemblies and processions as envisaged under Section 19 of the Police Act and shall see that it shall be peaceful and cause least inconvenience to the public.
(vii) Any wrongful act or omission upon or near public street by any of participants in the demonstration/procession whereby the public are prevented from freely, safely and conveniently passing along such public road shall be dealt with according to law.
(viii) Road picketting and dharnas on public roads, being clear violations of law, shall strictly be prohibited and the police shall see that the persons who cause such obstruction to the pedestrians and vehicular traffic be removed from the road.
(ix) The Government shall issue appropriate circulars to the police authorities impressing upon them the need to enforce the provisions contained in the Police Act."
26.6. When the learned counsel for the petitioners therein referred to the judgment of the learned Single Judge in
"25. All the writ petitioners pray for complete ban on caste, religious and communal based rallies/processions and conducting of Guru Poojas, especially the one sponsored by the State Government so that loss of lives and injury to many persons and damage to public properties can be avoided. However, the stand of the State Government is that the complete ban on meetings, processions and conferences conducted by caste, religious and communal based organizations will neither be possible nor practicable, but at the same time appropriate restrictions and conditions will be imposed as warranted by the situation, instead of a blanket ban as prayed for by the writ petitioners and necessary police bandobust arrangements will also be made to ensure maintenance of law and order."
27.1. The order of The Hon''ble Mr. Justice K.K. Sasidharan in
27.2. The petitioner in that case sought permission to undertake indefinite fast in a public place on certain demands. The same was rejected by the respondent therein. This Court quashed the order and directed the police to grant permission to undertake the fast, subject to certain restrictions, in a peaceful and nonviolent manner.
27.3. Paragraphs 18, 22 and 27 of the said judgment are relevant which read as follows:
"18. The Supreme Court in Ramlila Maidan Incident, indicated the responsibility of the State in the following words:
"178. There is a direct as well as implied responsibility upon the Government to function openly and in public interest. Each citizen of India is entitled to enforce his fundamental rights against the Government, of course, subject to any reasonable restrictions as may be imposed under law. The Government can, in larger public interest, take a decision to restrict the enforcement of freedom, however, only for a valid, proper and justifiable reason. Such a decision cannot be arbitrary or capricious.
228. ...Denial of a right to hold such meeting has to be under exceptional circumstances and strictly with the object of preventing public tranquillity and public order from being disturbed."
22. There are several forms of protest. There are violent and non violent method of expression of protest. The agitations, dharnas, processions are now part of our life. Gandhiji advocated the philosophy of non violence. The story of Mahatma is a story of non-violence. Mahatma Gandhi believed in the god of truth and led the freedom movement. The victory of our freedom movement is nothing but the principle of Ahimsa. The mode adopted by Gandhiji to obtain his goal was fasting. Unlike other forms of agitations, fasting is considered as a non-violent method of protest or expression of dissent. The people of this Country have every right to express their views. In order to achieve the goal, various methods of agitations are now resorted. Very seldom people resort to the non-violent method of protest. When a person approaches the authorities with a request to permit him to go on fasting, the issue should be considered in the light of the freedom of speech and expression guaranteed by our Constitution. Even though reasonable restrictions could be imposed on the exercise of such rights, it is impermissible to prohibit it without any ryme or reason. The orders of this nature should be tested on the touchstone of Articles 19 and 21 of the Constitution.
27. Before concluding I consider it deem and fit to reproduce the following observation of the Supreme Court in Ramlila Maidan Incident:
"245. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquility, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them."
28.1. Let me now analysis the judgments cited by the learned Advocate General.
28.2. Out of the six judgments relied on by the learned Advocate General, three judgments, namely,
28.3. Further, the judgment of the Hon''ble Mr. Justice N. Kjrubakaran in S. Sivakumar v. State of Tamil Nadu (supra) was also considered by the First Bench of this Court in the judgment dated 26.11.2013 in W.P. (MD) No. 14673 of 2013 etc., and as stated above, the First Bench declined to issue directions to ban the meetings/processions and conferences conducted by caste, religious and communal based organizations and to prohibit the communal based Guru Poojas and Caste based Rallies. Hence, the judgment in S. Sivakumar v. State of Tamil Nadu (supra) could not render any assistance to the State.
29.1. In Rama. Muthuramalingam v. Deputy Superintendent of Police (supra), cited by the learned Advocate General, the appellant therein was declined permission to hold a public meeting about the arrest of Sankarachariar in an alleged murder case. The same was questioned before this Court.
29.2. A learned Single Judge of this Court (Hon''ble Mr. Justice RD. Dinakaran) allowed the writ petition on certain conditions, one of which, is that the petitioner should not speak about the arrest of Sankarachariyar in an alleged murder case. The public meeting was about the arrest of the Sankarachariyar in the alleged murder case.
29.3. The appellant questioned the conditions imposed by the learned Single Judge before the Division Bench by filing an appeal. The appeal was allowed by the Division Bench (consisting of The Hon''ble Mr. Justice Markandey Katju, Chief Justice (as he then was) and N.V. Balasubramanian, J.) of this Court setting aside the conditions imposed by the learned Single Judge and remitting back the matter to the authorities to decide the issue afresh. Hence, I am of the view that the same judgment also could not render any assistance to the State.
30.1. The learned Advocate General relied on the judgment of The Hon''ble Mr. Justice D. Murugesan in Dr. K. Krishnasamy v. Superintendent of Police, Virudhunagar District, Virudhunagar (supra), and this judgment was also considered by the Hon''ble Mr. Justice V. Ramasubramanian in the order in Durai Sankar v. Secretary to the Government (supra) and the learned Judge allowed the writ petition as stated above.
30.2. Further, I am of the view that the said judgment arose out of peculiar facts. The petitioner therein is a leader of a political party and they sought permission to conduct processions and public meetings at Rajapalayam Town in Virudhunagar District; at Sankarankovil in Tirunelveli District and at Paramakudi in Ramanathapuram District. The said requests were rejected. The said orders were questioned before this Court.
30.3. The State produced various materials objecting to hold the processions and meetings at those public places, where, earlier so many murders took place due to caste clash and the petitioner therein was also one of the parties to those incidents. The details of those cases were dealt in detail in that judgment. As an illustration, the following passage in paragraph 7 of the judgment, relating to the violent incidents at Rajapalayam is extracted:
"7. ...the request for conducting the procession as well as the meeting was rejected after careful analysis of apprehending breach of peace and to prevent communal clashes, since Rajapalayam is highly sensitive for communal clashes. It is also stated that the decision was taken considering the past experiences and prevailing circumstances, the choice of the town in the district and the particular place in the town for conducting such meeting would affect the peace and tranquillity of the area. It is further averred that the request for conducting meeting and procession is in the most sensitive place, where already several persons were killed in clashes viz., 24 persons belonging to scheduled caste, 12 belonging to nadar caste, 8 belonging to devar caste and one other caste...."
Similar details were given for two other places.
30.4. Had the petitioner therein sought to conduct the meeting at the venue earmarked by the respondent police authorities, I am of the view that this Court could have granted permission to hold public meetings. But the petitioner therein insisted to conduct the public meetings/processions in the communally sensible area.
30.5. In those circumstances, this Court was not inclined to give allow the petitioner to conduct processions and public meetings and dismissed those writ petitions. Therefore, reliance placed on this judgment is of no use to the State.
31. Furthermore, all the three cases, namely, Dr. K. Krishnasamy v. Superintendent of Police, Virudhunagar District, Virudhunagar (supra), Rama. Muthuramalingam v. Deputy Superintendent of Police (supra) and S. Sivakumar v. State of Tamil Nadu (supra) are relating to public meeting. But, in this case, the programmes take place only at private premises that makes a significant difference with those cases.
32.1. The next judgment relied on by the learned Advocate General is Annadurai, In re., 1971 L.W. 664, wherein, C.N. Annadurai, the founder of the Dravida Munnetra Kazhagam, was prosecuted along with 10 others for violating the order of the Commissioner of Police by conducting a meeting on 03.01.1958.
32.2. The facts of that case reveal that the police issued order banning all meetings in the city, based on the report that the DMK Party decided to hold black flag demonstration against the then Hon''ble Prime Minister and hence, it was not desirable to permit the party to hold a meeting at Triplicane beach on 03.01.1958 on the even of Prime Minister''s visit to Madras. The ban order was defied and the DMK Party attempted to conduct a meeting. Hence, they were arrested and prosecuted.
32.3. The concerned Magistrate referred the questions of law to this Court under Section 432 of Cr.P.C. One among the questions is the Constitutional Validity of Section 41 of the Act. However, the view expressed by the Bench of this Court in that judgment would not be of much help to the State, in view of the amendment made to the Code of Criminal Procedure, thereafter separating the judicial power from the executive. Further, in this case, the validity of Section 41 of the Act is not questioned by the petitioner.
32.4. One of the arguments advanced by the petitioner''s therein is that the Commissioner of Police could not have been clothed with power to issue prohibitory order, particularly, when there is no power to appeal to the State Government.
32.5. The Division Bench rejected the contention on the ground that the Commissioner of Police at that time was not a mere police official, like the Deputy Superintendent of Police in the Mofussil area, but a Magistrate in some respects and he is entitled to remand people. The relevant passage is extracted hereunder:
"...He (then Advocate General) urged that the Commissioner of Police of Madras and the other two presidency towns was not a mere police official, like the District Superintendent of Police in the moffussal acting under S.30(2) of the Indian Police Act, but was also a Magistrate in some respects and entitled to remand people, and also a justice of the peace, and that the presidency police administration ever since 1727 had been considered to be different from the district police administration, and so there was a reasonable classification and no discrimination...."
32.6. The aforesaid argument of the then learned Advocate General in that case found favour with the Division Bench. Now it is doubtful as to whether the said reasoning would stand the scrutiny of the law, after the judiciary is totally separated from executive, particularly, after the amendment to the Code of Criminal Procedure in 1973.
32.7. Further, much water has flown after 1958. It is doubtful as to whether vesting with sweeping power with the Commissioner of Police to interfere with the basic Rights guaranteed under the Constitution without even any appeal to the Government could stand the scrutiny of the law.
32.8. Furthermore, the issue raised in that case is still valid that some time shall be prescribed to the Commissioner of Police to pass orders on the application seeking permission to conduct public meeting/assembly/procession. In this case, though the petitioner made application as early as on 29.03.2015, the impugned order refusing permission to hold the meeting was passed at last moment on 12.04.2015.
32.9. In my view, a short time of 3 - 5 days shall be given and no last minute prohibitory order could be passed by the police authorities making the parties to knock the doors of this Court at the Eleventh hour.
32.10. However, I am not going into those issues and those issues could be decided in a appropriate cases, as the validity of Section 41 of the Act is not put in issue in this case.
33.1. The next judgment relied on by the learned Advocate General is
33.2. This case is relating to the ban on a novel published by Dr. P.V. Narayanna. The novel is portraying the story of Basaveshwara, Akkanagamma and Channabasaveshwara. It proceeds as if it is narrated by Basaveshwara himself. Basaveshwara was considered to be a great Saint of the 12th century by the Veershaivas, a religious sect. He was born in Hagewadi in Bijapur District, Karnataka State. His elder sister Akkanagamma was also considered to be a Saintly Woman. Her son Channabasaveshwara was also considered to be a great Social Reformer and a Preacher of Veerashaivism and of the Basava Philosophy. The family was considered to consist of individuals of progressive thought who sought to promote social reform in Hindu society and for that purpose preached that all were equal.
33.3. The book came for criticism and Shri. B.D. Jatti, the former Vice President of India, wrote to the State Government that some of the statements made in the book were objectionable, inflammatory, hurtful and insulting to the sentiments and feelings of the Veerashaivas and the followers of Basaveshwara, and suggested that the novel should be forfeited. So many complaints were received from eminent personalities.
33.4. In those circumstances, the book was forfeited. The same was questioned by Dr. P.V. Narayanna, the Publisher of the Book, under Section 96 Cr.P.C. The matter was referred for a decision to a Three-Judge Bench under Section 96(2) Cr.P.C. The Bench dismissed the petition. The Apex Court confirmed the order of the High Court.
33.5. While dismissing the petition, the High Court had observed that the story projected by the author in Chapter 12 that Channabasaveshwara was the illegitimate son of Akkanagamma as he had been conceived out of wedlock, was indeed hurtful. The High Court had further held that the allegation that it was the public odium that had followed the pregnancy that had compelled Basaveshwara and Akkanagamma to leave their home at Bagewadi and shift to Koodalasangama, was again an unwarranted accusation and without any basis. The explanation offered by the author is not acceptable and hence, the High Court rejected the petition and the Supreme Court also dismissed the appeal confirming the order of the High Court.
33.6. That case arose out of peculiar facts relating to the publication of a novel and has nothing to do with the issues involved in this case. Hence, in my view, the judgment cannot be of any assistance to the State in this case.
34.1. The Constitution Bench judgment of the Apex Court in
34.2. On that case, the petitioner was the Editor and Printer and Publisher of a Monthly Magazine. For publishing an article in his Magazine, he was prosecuted by the State for the offences under Sections 153-A and 295A of the Indian Penal Code.
34.3. The learned Sessions Judge acquitted him of the charge under Section 153-A IPC, but convicted him under Section 295-A IPC and sentenced him to undergo eighteen months rigorous imprisonment and also imposed some fine.
34.4. On appeal by the petitioner, the High Court at Allahabad confirmed the conviction, but modified the sentence by reducing eighteen months rigorous imprisonment to one of twelve months imprisonment.
34.5. When the petitioner moved a petition before the Apex Court for special leave, the same was dismissed by the Apex Court. The petitioner also presented an application under Article 32 of the Constitution. The Apex Court dismissed the petition to stay the sentence. The Apex Court noted that the petitioner underwent the sentence of imprisonment.
34.6. Ultimately, in the facts of the case, the Apex Court also dismissed the petition under Article 32 of the Constitution. Hence, I am not able to understand as to how this judgment could be of any use to the State, as to said case arose out of conviction by a Sessions Court and the same has nothing to do with the issues involved in this case.
35. For all these reasons, I am inclined to quash the order and permit the petitioner to conduct the Programme relating to 125th Birth Anniversary of Dr. Ambedkar and other Programmes connected therewith on 14.04.2015 as stated in their letter dated 29.03.2015. The petitioner is directed to conduct the Programmes peacefully as stated in their letter dated 29.03.2015 and also in the affidavit filed before this Court. The respondents are directed to give adequate protection to conduct the Programme in a peaceful manner in terms of the judgments of the Apex Court and this Court, referred to above, and also to safeguard the right of the petitioner in W.P. No. 10804 of 2015, as guaranteed under Article 19(1)(a) and 1(b) of the Constitution. Accordingly, the writ petition in W.P. No. 10804 of 2015 is allowed in the above terms. The Writ Petition in W.P. No. 10585 of 2015 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
