Madras High Court
The State Of Tamil Nadu vs Popular Front Of India on 2 February, 2017
Author: Nooty.Ramamohana Rao
Bench: Nooty.Ramamohana Rao
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2017
CORAM
THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO
and
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.A.Nos. 9 & 114 of 2017 &
CMP Nos.155 & 156 of 2017
1.The State of Tamil Nadu
rep. By its Secretary
Department of Home
Fort St.George, Chennai 600 009.
2.The Director General of Police
DGP Office, Radhakrishnan Salai,
Mylapore, Chennai 600 004.
3.The Commissioner of Police
Tiruppur.
4.The Inspector of Police
Tiruppur South Police Station
Tiruppur District.
5.The Inspector of Police
Tiruppur Rural Police Station
Tiruppur District. .. Appellants in both W.As.
-vs-
Popular Front of India
rep. By its District President
B.Mubarak Basha
Tiruppur, Tiruppur District. .. Respondent in both W.As
PRAYER IN W.A.No.9 of 2017
Writ Appeal filed under clause 15 of the Letters Patent against the order dated 15.02.2016 rendered in W.P.No.4853 of 2016.
PRAYER IN W.A.No.114 of 2017
Writ Appeal filed under clause 15 of the Letters Patent against the order dated 15.02.2016 rendered in W.P.No.5533 of 2016.
For Appellants : Mr.K.Venkataramani
(both W.As) Addl.Advocate General-VII
asstd by Mrs.A.Sri Jeyanthi
Spl.Govt. Pleader
For Respondents :Mr.Ajmal Khan, Sr.Counsel
(Both W.As) for Mr.A.Raja Mohamed
***********
C O M M O N J U D G E M E N T
NOOTY.RAMAMOHANA RAO, J.
These Writ Appeals are preferred under Clause 15 of the Letters Patent, calling in question the correctness of the Order and Judgment rendered by the learned single Judge on 15th February, 2016, in W.P.Nos.4853 & 5533 of 2016, directing the Police to grant permission sought for taking out the procession, without giving room for any complaints.
2.It is claimed that the writ petitioner in W.P.No.4853 of 2016, is the Society registered under the Societies Act, 1860, bearing Registration No.226/DISIT/South/2010. It is stated that the main object of the Society is to promote and empower the backward, oppressed and marginalized sections of the Society. It is a non-political entity, established for rendering service and assistance during times of emergencies and natural calamities. It is claimed that on its Foundation Day viz. 17th February of every year, it proposes to take out a peaceful march through the important routes in Tiruppur and Kanyakumari. But, such requests have not been granted by the Police, citing possible law and order problem arising there from.
3.The learned single Judge has noticed that there is no absolute ban in taking out the procession, but it is purely a regulated exercise and in view of the earlier Judgments rendered by this Court in P.NEDUMARAN v. STATE OF TAMIL NADU [1999 (1) LW (crl) 73] and in C.J.RAJAN v. DEPUTY SUPERINTENDENT OF POLICE [2008 (3) MLJ 296], allowed the Writ Petitions. Hence, the present Writ Appeals.
4.The learned Additional Advocate General in support of these Appeals would contend that taking out processions passing through the main routes of a City would likely to cause grave hardships to the other road users and it is also likely to throw up sudden law and order problems. In such circumstances, it was considered inappropriate to allow the processions to be taken out to commemorate all insignificant events, such as the Foundation Day of a Society.
5.What the learned Additional Advocate General would elaborate thereon is that there are any number of Societies and Organisations which have sprung up lately for achieving the objects of the welfare of the Society and if each of them are to take one procession or the other on a regular and routine basis, the rendering civic administration becomes a causality. He therefore, urges that the processions should not be allowed to be taken out, for a mere asking.
6.True, it may be that if every organisation in commemoration of one important day or the other proposes to take a rally, the road users would become the first victims. The space which is intended to be occupied by processionists would suddenly become unavailable for every other road user, consequently, throwing out of gear the road traffic, leading to several bottlenecks with cascading effect over a long stretch. Some of the road users could be in grave emergency to reach their destinations, such as Hospitals, Railway Stations, Bus Stand or Air Port. Importantly, some of the other road users can be Schools/ College going or the Office attending citizens. Unsuspecting citizens who normally use the same route would be put to innumerable difficulties if one half of the road suddenly becomes unavailable, which was otherwise used by them all along. There can be several other practical difficulties which processions cause. But, the question is, whether that could be a valid reason for the local administration to deny the very right to take out a procession ?
7.Before answering any such question, it is apt to note that the right of taking out processions is a well recognised fundamental right. when the Hon'ble Supreme Court was called upon in ALL INDIA BANK EMPLOYEES' ASSOCIATION v. THE NATIONAL INDUSTRIAL TRIBUNAL (BANK DISPUTES), BOMBAY AND ORS [ AIR 1962 SC 171 (V. 49 C 33), it has been answered very effectively in paragraphs 18 & 20, in the following words:
18.The point for discussion could be formulated thus : When sub-cl. (c) of cl. (1) of Art. 19 guarantees the right to form associations, is a guarantee also implied that the fulfilment of every object of an association so formed is also a protected right, with the result that there is a constitutional guarantee that every association shall effectively achieve the purpose for which it was formed without interference by law except on grounds relevant to the preservation of public order or morality set out in cl. (4) of Art. 19? Putting aside for the moment the case of Labour Unions to which we shall refer later, if an association were formed, let us say. for carrying on a lawful business such as a joint stock company or a partnership, does the guarantee by sub-cl.(c) of the freedom. to form the association, carry with it a further guaranteed right to the company or the partnership to pursue its trade and achieve its profit-making object and that the only limitations which the law could impose on the activity of the association or in the way of regulating its business activity would be those based on public order and morality under cl. (4) of Art. 19? We are clearly of the opinion that this has to be answered in the negative An affirmative answer would be contradictory of the scheme underlying the text and the frame of the several fundamental rights which are guaranteed by Part III and particularly by the scheme of the seven freedoms or groups of freedoms guaranteed by sub- cls. ('a) to (g) of cl. (1) of Art. 19. The acceptance of any such argument would mean that while in the case of an individual citizen to whom a right to carry on a trade or business or pursue an occupation is guaranteed by sub-cl.(g) of cl. (1) of Art. 19, the validity of a law which imposes any restriction on this guaranteed right would have to be tested by the, criteria laid down by cl. (6) of Art.19,. if however he associated with another and carried on the same activity-say as a partnership, or as a company etc., he obtains larger rights of a different content and with different characteristics which include the right to have the validity of legislation restricting his activities tested by different standards, viz., those laid down in el. (4) of Art. 19. This would itself be sufficient to demonstrate that the construction which the learned Counsel for the appellant contends is incorrect, but this position is rendered clearer by the fact that Art. 19-as contrasted with certain other Articles like Arts. 26, 29 and 30-grants rights to the citizen as such, and associations can lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an aggregation of citizens, i.e., in right of the citizens composing the body. As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens: composing it are subject.
19..........
20. We consider it unnecessary to multiply examples to further illustrate the point. Applying what we have stated earlier to the case of a labour union the position would be this : while the right to form an union is guaranteed by sub-cl.(c), the right of the members of the association to meet would be guaranteed by sub-cl. (b), their right to move from place to place within India by sub-cl.(d), their right to discuss their problems and to propagate their views by sub- cl. (a), their right to hold property would be that guaranteed by sub-cl. (f) and so on each of these freedoms being subject to such restrictions as might properly be imposed by cls. (2) to (6) of Art. 19 as might be appropriate in the context. It is one thing to interpret each of the freedoms guaranteed by the several Articles in Part III a fair and liberal sense, it is quite another to read which guaranteed right as involving or including 'Concomitant rights necessary to achieve the object which might be supposed to under lie the grant of each of those rights, for that construction would, by a series of ever expanding concentric circles in the shape of rights. concomitant to concomitant rights and so on, lead to an almost grotesque result.
8.Again in HIMAT LAL K.SHAH v. COMMISIONER OF POLICE, AHMEDABAD AND ANR [AIR 1973 SC 87 (V 60 C 18)], while concurring with the conclusions of the learned Chief Justice, in his independent opinion, Justice Mathew has brought out the the principle in the following words:
60.Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems-religious, political,, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the 'natural' places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly.
61.Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre- Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore., the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city's function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks' with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly. The assumption made by Justice Holmes is that a city owns its parks and highways in the same sense and with the same rights a private owner owns his property with the right to exclude or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks. The parks are held for public and the public streets are also held for the public. It is doubtless true that the State or local authority can regulate its property in order to serve its public purposes. Streets and public parks exist primarily for other purposes and the social interest promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.
9.In this view of the matter, we consider it appropriate after taking into account the various principles, to hold that it is wholly appropriate for the appellants to seek the permission of the competent authority by taking out an Application, seeking permission for taking out a procession:
(1) proposing the road/route and distance on which the procession can be taken out, specifically using only one half of the road space available;
(2) the time and duration of such procession;
(3) the list of persons who hold themselves responsible and accountable for any event that might occur enroute during the procession together with their Address and identity proof;
(4) an undertaking, not to use the musical instruments which are capable of producing loud or jarring notes;
(5) the persons responsible for taking the procession shall ensure that in 'silence zones', the music or noises will not be produced;
(6) in all other localities/areas, the decibel levels of the noise would not exceed the permissible limits set out under Rules 3, 4, & 5 read with schedule appended thereto, of the Noise Pollution Control Rules 2000;
(7) no provocative slogans, Billboards, Placards or Banners would be demonstrated;
(8) no photographs/pictures/paintings of individuals against whom any criminal cases are booked, not necessarily in the town or place in which the procession is taken out, but, elsewhere as well, shall be exhibited;
(9) no photographs/paintings/pictures of internationally recognised and known activists/promoters of violence and terror should be exhibited;
(10) an undertaking that the procession will culminate in a peaceful dispersal, after the duration of the procession expires;
(11) that it is wholly permissible for the competent authority to grant permission, subject to restrictions with regard to the duration of the procession not to exceed a span of three hours;
(12) with regard to the uniform which the processionists prefer to wear, which should not even remotely resemble any uniform worn by Policemen or other Armed Forces of the Union or the State, and they can wear the same Uniform which perhaps may have been used last year;
(13) in the procession, the processionists shall not in any manner offend the sentiments of any religious, linguistics, cultural and other groups;
(14) an undertaking to reimburse the costs for any damage that may occur enroute to any public/private property and an undertaking to bear the compensation/replacement costs as well, if are to be awarded to any other Institution/Person, who may apply for the same.
(15) The appellants shall provide a minimum of three clear working days for the competent authority to consider and pass appropriate orders of permission.
(16) It is made abundantly clear that the grant of this permission does not come in the way of the Law Enforcing Agencies, acting strictly in accordance with law, should any acts or events do occur in the procession come to their adverse notice.
Subject to the above, the Writ Appeals stand disposed of. No costs.
(N.R.R.J.,) (S.M.S.J.,)
02.02.2017
Index :Yes/No
Internet:Yes/No
rpa
NOOTY.RAMAMOHANA RAO , J.,
and
S.M.SUBRAMANIAM, J.,
rpa
W.A.Nos.9 & 114 of 2017
02.02.2017
http://www.judis.nic.in