Madras High Court
Sanker Ambedkar vs The Superintendent Of Police on 26 November, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26/11/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
Writ Petition (MD) No.12537 of 2010
Sanker Ambedkar ... Petitioner
Vs.
1. The Superintendent of Police
Sivagangai District.
2. The Deputy Superintendent of Police
Manamadurai
Sivagangai District.
3. The Inspector of Police
Town Police Station
Manamadurai
Sivagangai District. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of mandamus to direct the respondent to give permission
to the petitioner organisation to conduct a demonstration near Municipality
office at Manamadurai, Sivagangai District on 7/10/2009 or any other day
convenient to the petitioner.
!For petitioner ... Mr.G.Bhagavath Singh
^For respondents... Mr.S.C.Herold Singh, GA
- - - - - -
:ORDER
This writ petition came to be posted before this Court under the caption "Specially Ordered", after obtaining orders from the Administrative Judge.
2. Heard both sides.
3. The petitioner has come forward to file the present writ petition seeking for a direction to the respondents to give permission to conduct a demonstration near Municipal Office at Manamadurai, Sivagangai District on 7/10/2009 or any other day convenient as may be fixed by this Court.
4. On notice from this Court, the third respondent had filed counter affidavit dated Nil/October 2010 and presented to this Court on 17/10/2010. Not being satisfied with the said counter affidavit, this Court directed the second respondent to file a counter affidavit and accordingly, the second respondent filed a counter affidavit dated 26/10/2010.
5. The facts relating to the filing of the writ petition are as follows:-
The petitioner is an organiser of Thiyagi Immanuvel Peravai and the said organisation is working against the Untouchability and other dominant caste atrocities. It is also claimed that near the Villages of Sivagangai District, untouchability is widely prevalent and the trees in Kanmai cannot be removed for fire wood and fish found in the common temple pond also cannot be used by the Dalit people. Even though the Police officials are well aware about such atrocities, they are not taking any action.
6. On 2/8/2010, one Arumugam, S/o. Azhagar, who is a Dalit running a mechanical shop at Manamadurai. While he was returning from his party meeting, Mr.Muthuramalingam, Sub-Inspector of Police attached to Manamadurai Police Station, asked the said Arumugam to volcanise the tube of his two wheeler. The said Arumugam replied that he has already closed his shop and he was rushing to his house to take his child to the Hospital and he promised that he will do the same on the next day. But, the Sub-Inspector of Police threatened him with dire consequences.
7. Subsequently, on 24/4/2010, around noon time, when the said Arumugham and two of his friends viz., Shankar and Siranjeevi were proceeding in a two wheeler, on seeing the said Sub-Inspector, to show respect to him, two of his friends jumped from his two-wheeler. The Sub-Inspector of Police picked the two wheeler key and ordered Arumugam to come and collect the key at the Town Police Station to collect the key and he also asked the name of his village and caste.
8. On 25/8/2010, when he went to the Police Station to collect the two wheeler key, the Sub-Inspector of Police removed his cell phone, license, shirt and made him to sit with his lungi. He brought four of the Constables and made two of them to stand on his legs and abused him with his caste name. He also bet him with his lathi on the side of metallic top, until lathi got broken. The beatings went on for fifteen days, which resulted the petitioner in fainting. He was also kept in a lock up with the other accused.
9. On the same day, again at 12.30 p.m., the Sub-Inspector, his driver Boomi and unnamed four constables came inside the room and after removing the dress of the petitioner, stamped on his body continuously. Unable to bear the pain, the said Arumugham,, fell down and when he could not get up, he was pushed by the Constables and they beaten him with lathi continuously and thus, he sustained several injuries. The Sub-Inspector of Police also made him to fell on each of the feet of the Police Officials and each time when he fell down, the Sub-Inspector of Police bet him on his back with lathi. No food and water was provided to him. Around 9 p.m., he came to know that a case under Section 75 of the City Police Act was registered against him and his signature was obtained in five white papers. Hearing all these, his father and brother came to the Police Station and the Sub-Inspector threatened them that if they tried to publish the incident, the said Arumugam cannot do any mechanic work in that locality.
10. On 26/8/2010, the said Arumugham went to Manamadurai Government Hospital and asked the Doctor to give treatment and after giving injunction, he directed him to take X-ray and scan. Thereafter, he went to Sivagangai District Government Hospital and registered himself as O.P. The duty Doctor stated that since this has become a Police case, he called one of the Head Constables available in the same Hospital and told him that the said Arumugham sustained these injuries only due to the Sub-Inspector. The Police Constable forcibly removed the O.P chit and told the said Arumugham that without medical memo, no treatment can be given in the hospital. Thereafter, without any treatment he went to home.
11. On the very next day, he went to Sivagangai Government Hospital Quarters, where he has not revealed anything about the torture and injuries he suffered at the hands of the Police. It was found that there was a fracture on his left leg.
12. Finally, the said Arumugham got admitted to Meenakshi Mission Hospital and Research Centre on 28/8/2010 as in-patient and got treated on 30/8/2010 and has also found that a bone in his left leg was broken and medicines were also given to him.
13. Thereafter, the said Arumugham, gave a detailed complaint on 2/9/2010 to the first respondent Superintendent of Police. The petitioner's organisation on coming to know about the torture, wanted to conduct a demonstration and also sought for a permission and protection as well as the use of mike by a representation dated 2/9/2010. Since no permission was granted, the petitioner has come forward to file the present writ petition on 5/10/2010.
14. In support of his submission, the wound certificate issued by Meenakshi Mission Hospital, Madurai dated 27/9/2010 was also produced before this Court. The third respondent sent a communication dated 9/10/2010 informed the petitioner that the permission to conduct demonstration cannot be granted, since his representation has been considered and is being enquired into.
15. In the counter filed by the third respondent, the allegation made by the petitioner regarding the assault and injury committed on Arumugham was denied. The third respondent came out with a different story that the Sub- Inspector found that since the said Arumugham was behaving in an unruly manner, using filthy language and unparliamentary words, a case under Section 75 of the Tamil Nadu City Police Act was registered. When the local Politician came to get him on bail, after completing all the formalities, the said Arumugham was released and when he left the Station, he was normal and physically well and charge sheet was also filed in STC No.1837 of 2010 and all the other allegations are denied.
16. It is not the province of this Court to go into the question of veracity of the allegations made against the local Police in this W.P.
17. The short question that arises for consideration is "Whether the petitioner and his Organisation are entitled to protest against the Police authorities?"
18. The reason for denial to hold the demonstration as found in paragraph 5 of the counter affidavit is as follows:-
"His request for permission to hold agitation before Municipal Office, Manamadurai was denied for personal reasons is denied emphatically because the request was found to be highly misleading and the Police having foreseen complications and public nuisance and law and order problems which are likely to ensue if the permission sought for by the petitioner was allowed, the Police for protecting law and order and maintaining public peace denied the permission in the interest of public peace. The petitioner who wants to improve his political carrier by using this event has falsely filed the writ petition averring highly improved and embellished versions in order to bring dishonour to the Police."
19. It is further stated in the counter that the said Arumugham is a rowdy element and his name is found in the history sheet maintained by the said Police Station in No.358/93 starting from 18/2/1993.
20. Whereas, in the counter affidavit filed the second respondent, they gave altogether a new reason for prohibiting the demonstration. In paragraph Nos.4 and 5, it was averred as follows:-
"The said Arumugam and his close Associates having willfully planned to criticize and question the fair and just action of the Police printed notices and pamphlets containing highly atrocious allegations against the Police and further, he has also sent false petitions to different departments. I humbly submit that the petitioner's averments that his request for permission to hold agitation before Municipal Office, Manamadurai was denied for personal reasons is emphatically denied because the place wherein the agitation proposed to be conducted is highly busy place and vulnerable to affecting law and order problem and further the area is now under sensitive situation. Recently, in that area, the Immanuel Sekaran Gurupoojai was celebrated and now the Marudhupandiar memorial celebration and the Thevar Guru poojai celebration are going to take place and even after the celebrations were over for long period there will be an apprehension of breach of peace and creation of law and order problem and in such situation if any uncontrolled incident is taken place, it will create law and order problem and pubic order will be disturbed as well communal harmony will be dislodged and further the request of the petitioner was not genuine and lack of bonafide and further, the petitioner is trying to attain self gain under the guise of holding a protest against Police by averring highly improved and embellished versions and hence the request of the petitioner was rejected only in the interest of public and keeping in mind the control of law and order problem. Further, it is submitted that the agitation proposed to be held on 7/10/2010 was over whereby the writ petition has become infructuous."
21. The reason given by the respondents cannot be countenanced by this Court. Every citizen of this country have fundamental right to assemble and express their opinion in public and right to conduct a demonstration under Article 19 (1) of the Constitution of India. Though it is subject to the reasonable restriction and that restrictions imposed on the second and third respondents would themselves are the aggrieved persons as the demonstration which they are going to conduct is against their conduct, it cannot said to be a reasonable restriction. The right of the citizen to hold a meeting and express their grievance, approval of a State action has been recognised by the Court in very many cases.
22. In this context, it is necessary to refer to two decisions of this court, which will have a bearing on the issue. The first judgment was in C.J.Rajan, Madurai-2 Vs. Deputy Superintendent of Police, Mayiladuthurai and another reported in 2008 (3) MLJ 926 (Mad). A division bench headed by P.K.Misra, J. (as he then was) came down heavily upon the respondent police in refusing permission to conduct meeting on irrelevant grounds.
23. Subsequently, in Patchaimal K.T. Vs. The Superintendent of Police, Kanyakumari and others reported in 2009 Writ L.R. 65, after referring to the legal and constitutional issue and precedent on the subject and relevant statutory provisions, this court set aside the order of the police and permitted demonstration to be conducted by the opposition party.
24. In this context, it is necessary to refer the judgment of the Supreme Court in Himat Lal K.Shah V. Police Commissioner, Ahmedabad reported in AIR 1973 SC 87 = 1973 (1) SCC 227 rendered by a Constitution Bench of the Apex Court, wherein, the Court struck down Rule 7 of the Rules framed under the Bombay Police Act on the ground that Rule, which empowered the Commissioner of Police to refuse permission to hold meetings without giving any guidance under the Rule and thereby conferring an arbitrary discretion, was an unreasonable restriction on the freedom of assembly guaranteed under Article 19 of the Constitution. The Court also held that the work "regulating" in Section 33(1)(o) of the Bombay Police Act would include the power to prohibit and impose the condition that permission should be taken a few days before the holding of the meeting on a public street. Mathew, J., dissented from the view of the majority and held that the power to regulate did not include the right to prohibit and the permission sought for holding a meeting ought not be refused. The majority opinion was that regulation is necessary to enable citizens to enjoy the various rights in crowded public streets, and that the State can make regulation in aid of the right of the assemble of each citizen and can impose reasonable restrictions in the interest of Public order.
25. Further, the Supreme Court also in S.Rangarajan V. P.Jagjivan Ram reported in 1989 (2) SCC 574 held that freedom of speech under Article 19(1)(a) of the Constitution of India means the right to express one's own opinion by word of mouth, printing, picture or is any one manner of ideas made through any and the communication of ideas made through any medium. Such right, however, was held to be subject to reasonable restrictions in the larger interest of the community and the country as set out in Article 19(2) of the Constitution. Those restrictions are intended to strike a proper balance between the liberty guaranteed, and the social interests specified under Article 19(2). The Court emphasised that the interest of freedom of expression and social interest cannot be regarded as of equal weight and the Court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched, but should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg."
26. Therefore, it is too late for the respondents to refuse permission to hold an agitation on a matter of public importance. With respect to the respondents' reliance upon Section 30(2) of the Police Act, 1861, it can only be said that it enables the respondents to direct the control and conduct of all assemblies and processions on public road or in the public streets or thoroughfares and to prescribe the Rules by which and the times by which the processions may pass and Section 30(2) and (3) on which reliance was placed, is extracted below:
"Sec 30(2): He may also, on being satisfied that it is intended by any persons or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form a procession which would, in the judgment of the Magistrate of the district, or of the sub-division of a district, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice, that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a licence.
(3)On such application being made, he may issue a licence, specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place, and otherwise giving effect to this section."
27. Therefore, the said provision is only a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.
28. In the light of the above, the petitioner is entitled to conduct a demonstration to highlight the complaint of one of the member, who had allegedly received brutal injuries at the hands of the respondent Police. Since the meeting date demanded by them viz., 7/10/2010 is already over and the impediment expressed in paragraph 5 of the second respondent has also does not exist and the events are already over, the petitioner is entitled to conduct a demonstration to highlight his grievance in respect of the injuries sustained by one of the members Arumugham. The petitioner is entitled to conduct the demonstration on any one of the dates starting from 28/11/2010 to 13/12/2010 after due notice to the respondents regarding intimating the date, time and venue. The first respondent is directed to provide appropriate protection to such demonstration.
29. This writ petition will stand allowed with the above terms. However, there will be no order as to costs.
mvs To
1. The Superintendent of Police, Sivagangai District.
2. The Deputy Superintendent of Police Manamadurai, Sivagangai District.
3. The Inspector of Police Town Police Station Manamadurai, Sivagangai District.