Madras High Court
L.Cheziyan @ Sakthivel vs The Commissioner Of Police on 13 February, 2019
Author: N.Seshasayee
Bench: N.Seshasayee
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.02.2019
CORAM :
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
W.P.(MD) No.3154 of 2019
L.Cheziyan @ Sakthivel ... Petitioner
-vs-
1. The Commissioner of Police
O/o. Commissioner of Police
Trichy
2. The Assistant Commissioner of Police
O/o.The Assistant Commissioner of Police
Sri Rangam Region
Trichy
3. The Inspector of Police (Law and Order)
Uraiyur Police Station
Trichy District ... Respondents
PRAYER : Writ petition is filed under Article 226 of the Constitution of India,
for issuance of a writ of Certiorarified Mandamus by calling for the records
relating to the impugned order in Na.Ka.No.32-1/m.fh.c.M/Sri Rangam
Region/r.X.jp.kh 2019 dated 10.02.2019 on the file of the second respondent
and quash the same as illegal and consequently direct the first and second
respondents to grant permission to conduct conference in the title of
“REPRESSION IS THE DEMOCRACY?'
http://www.judis.nic.in with the slogan of “RESIST
2
CORPORATE SAFFRON FACISM” on 23.02.2019 at 04.00 p.m to 10.00 p.m
venue at Thenur Ulavar Santhai Corporation Ground, Trichy based on the
petitioner's representation dated 31.01.2019.
For Petitioner : Mr. Ajmal Khan
Senior Counsel for Mr.S.Vanchinathan
For Respondents : Mrs.S.Bharathi
Government Advocate
ORDER
The present writ petition is an offshoot of an earlier Order of this Court where it directed the authorities to consider the petitioner's request to hold a meeting by a social organisation named 'Makkal Athikaram', of which he is the Regional Coordinator, was turned down by the authorities.
2. Earlier when permission was denied by the authorities, the petitioner moved this Court in W.P(MD) No.18773 of 2018 and that came to be dismissed on 01.10.2018. Challenging the said order, the petitioner preferred an appeal in W.A(MD) No.1638 of 2018, and on 21.12.2018 it was allowed with a direction to the petitioner that he approached the authorities with a fresh request for holding a meeting with further direction to the authorities to consider the same based on certain observations expressed in the Order. Thereafter, the petitioner approached the authorities with a representation dated 31.01.2019, and it came to be rejected by the impugned Order of the second respondent, dated 10.02.2019. This is under challenge now.
3. The Order in challenge lists several grounds for rejecting the petitioner's request to hold a meeting. The broad statement that these grounds of rejection makes is that the petitioner's organization has either misused the permission http://www.judis.nic.in 3 granted earlier, or breached into the domain of other citizens with opposite ideologies and posed threat to public order. There is also an indication that some of the pamphlets issued, and posts made in the social media where the petitioner or his organisation has an account, shows pictures defiling certain religious symbols that are likely to offend the religious sentiments of the members of that religious Order. The impugned Order reflects the anxiety of the authorities that if permission is accorded, it might be misused.
4. Is then the perception of the authority, nay their apprehension that the petitioner or the speakers who are to address in the meeting may not be responsible in exercising their right of free-speech has factual basis? The rejection order now impugned cites a few criminal cases to the credit of couple of speakers, and this cannot be disputed. Still can free speech be denied, even though it can be regulated? This is a land of free speech, and that requires no emphasis. In Chintaman Rao v. The State of Madhya Pradesh, [1950] S.CR. 759 (at 763)], the Supreme court held:
"The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) http://www.judis.nic.in of article 19, it must be held to be wanting in that quality."4
5. When in Menaka Gandhi Vs Union of India [AIR 1978 SC 597], the Supreme Court has held that the fundamental rights guaranteed under Article 19 must be read into Article 21 of the Constitution, and that it coexists to complement the latter, it necessarily follows that the unrestricted exercise of the right under Article 19(1)(a) carries with it the portent for interference with the quality of life to which the rest of the citizenry is entitled to under Article 21. It is true that Article 21 reflects the State's power to make just laws to interfere with right to life, but is it not premised on the fact that citizens enjoy equal right to live with honour and dignity? This underlying idea cannot be dismissed when right to free speech is sought to be exercised. There cannot be freedom of speech if there is no freedom of thought and conscience, and they do not thrive where equality does not prevail.
6. If the Constitutionalism has to survive in this country, then it is not just the responsibility of the State but that of everyone of its constituent citizens to carry its spirit in their hearts and souls. In a democracy, the line dividing the State and the collective of its citizens is faint. For a citizen to exercise his rights under the Constitution responsibly, he need not look to the State, for he owes his existence not to the mercy of the State, but to the might of the Constitution.
7. It therefore, does not require a State intervention to regulate it. It might be that Article 19(2) of the Constitution has empowered the State to make laws to impose reasonable restrictions on the fundamental right to free speech, yet personal responsibility expected of a citizen that he will exercise it within reasonable bounds goes with the very right, even if one were to presume that Article 19(2) does not exist. Every aspect on which the State can bring a law to impose reasonable restrictions on free speech should therefore, be considered as an integral factor of the said right. If We, the People, have given unto ourselves http://www.judis.nic.in 5 the Constitution, then it becomes the responsibility of every citizen to protect the Constitution not in fear of any State regulations, but in respect for the Constitution, and in their realisation of this responsibility. In his oration at Philadelphia, celebrating the adoption of the Constitution of the United States, James Wilson, a party to the declaration of independence and the Constitution, said:
“Need I infer, that it is the duty of every citizen to use his best and most unremitting endeavours for preserving it [the Constitution] pure, healthful, and vigorous? For the accomplishment of this great purpose, the exertions of no one citizen are unimportant. Let no one, therefore harbour, for a moment, the mean idea, that he is and can be of no value to his country: let the contrary manly impression animate his soul…. "
8. Jurisprudentially a right in one imposes a correlative duty in another. However, in Constitutionalism, where the Constitution guarantees the rights to the citizens, the duty becomes the citizens' to exercise the guaranteed rights responsibly. To cite an American example, the Constitution of the United States presumes lawfulness, and hence it becomes the responsibility of every American to respect and obey the law. While there are protections against violations of rights of citizens as in our Constitution, still the primary responsibility is in its insistence towards obedience of laws. To illustrate, the Constitution of United States has sets Rules for conviction for treason against that Nation. This presumes loyalty to the United States. It is a responsibility, then, to be loyal to the United States. Analogously, the Right to be tried in a jury trial is a fundamental right, but the jury should be an impartial one. This implies that http://www.judis.nic.in 6 every citizen has a responsibility, then not only to serve as a juror but also has the responsibility to be impartial when so appointed.
9.1 The Indian experience on the Constitutional responsibility found its way into the Constitution when Fundamental Duties are inserted into it through Article 51A Vide the Constitution (42nd Amendment) Act. It reads: (only those that are contextually relevant are extracted) “51A. It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and http://www.judis.nic.in achievement;
79.2 In AIIMS Students Union vs. AIIMS and Others, [(2002) 1 SCC 428], the Supreme Court has held that though the fundamental duties are not enforceable by a writ of the court, yet they provide valuable guidance, assistance and serve as an aid to interpret, resolve and deal with the Constitutional issues. This was reiterated in State of West Bengal & Ors vs. Sujit Kumar Rana, [(2004) 4 SCC 129] and confirmed later by a bench of seven judges of the supreme Court in the State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors, [2005 (8) SCC 534]. Therefore, it is now beyond cavil that the jurisprudential principle of every right has a corresponding duty and responsibility and the same has been engrafted into the Constitution, and it is the duty of the Court while interpreting the Constitution and the statutes made thereunder, to keep them in mind, while dealing with the issues before it.
10. The Constitutional rights finds its pair in the Constitutional duties or responsibilities. And, he who is conscious of his Constitutionally guaranteed rights and demands it, should also be prepared to submit to performing the Constitutional duties that goes with it. Time has come for the Courts not just to be a sentinel on the qui vive against State's attempts to invade the Constitutional rights of the citizens, but also against flirting tendencies of the citizens not to abide by their Constitutional responsibilities or duties. The latter may not be enforceable, yet they cannot be ignored.
11. In J. Deva Asir Vs The Superintendent of Police, Kanyakumari District and others [W.P(MD)1552 of 2019], I had an occasion to observe: “While the Courts stay neutral, they still do not blindfold itself to the happenings around.” I repeat it again. As this Court observes around, the public space which ought to be a marketplace of fertile and refreshing socio-political and economic ideas http://www.judis.nic.in 8 hardly seen selling any great ideas. What is largely in view is a cacophony of abuses and incendiary speeches and not much on nation-building and spreading amity and brotherhood among citizens. Where the Constitutional duties are in peril of losing its contextual relevance, it then becomes necessary for the Courts to step in.
12. Therefore, every authority who henceforth grants permission for any meetings or other functions shall obtain a written undertaking from its organisers that he will take responsibility that none of the speakers, while they exercise their right to free speech and expression, will violate any of those aspects/heads on which the State has power to make laws under Article 19(2) of the Constitution, that he would abide by the Constitutional values, and that no picture, cartoons or caricature, poster and every form of visual depiction, depicting any religious symbols or images be used as to hurt the religious sentiments of any religious group, nor shall be put on display anything banned under the laws of India.
13. However, the job of the court is made easy to an extent when the learned counsel for the petitioner submitted that the petitioner is ready to file an affidavit that the freedom of speech will not be misused. This court however, intends to modify it slightly as would be indicated below:
14.To conclude, this petition is allowed and the Order of the second respondent dated 10.02.2019 is set aside. This Court further directs the petitioner to present a fresh representation to the 3rd respondent with the names of the speakers and other related particulars along with a written undertaking:
(a) That the petitioner takes responsibility that none of the speakers, http://www.judis.nic.in while they exercise their right to free speech and expression, will violate 9 or infringe any of those heads (on which State has made laws or has power to make laws) under Article 19(2) of the Constitution (each of them should be specifically stated) and that he would abide by the Constitutional values, and that he takes responsibility, for peaceful conduct of the meeting.
(b) That no picture, cartoons, caricatures, posters, and every form of visual depiction, depicting any religious symbols or other images be used in any form as to hurt the religious sentiments of any religious group, nor shall display anything banned under the laws of India.
Upon receipt of the said representation with the undertaking as indicated above, the 3rd respondent is required to consider the same expeditiously and in the spirit of what is indicated in this Order. In the eventuality of the 3 rd respondent granting permission, he is also entitled to videograph the proceedings of the meeting to ensure that the undertaking given by the petitioner is obeyed in letter and spirit. If there is any violation, then the respondents are directed to prosecute the violators forthwith.
13.02.2019 Index: Yes/No Internet: Yes/No CM Note: Issue order copy on 14.02.2019 http://www.judis.nic.in 10 N.SESHASAYEE., J., CM To, 1,The Chief Secretary,Government of Tamilnadu, Secretariat, Chennai.
2.The Home Secretary, Government of Tamilnadu, Secretariat, Chennai.
3.The Director General Police, Chennai.
4. The Commissioner of Police, O/o. Commissioner of Police, Trichy
5. The Assistant Commissioner of Police, O/o.The Assistant Commissioner of Police, Sri Rangam Region, Trichy.
6.The Inspector of Police (Law and Order), Uraiyur Police Station Trichy District W.P.(MD) No.3154 of 2019 http://www.judis.nic.in 11 13.02.2019 http://www.judis.nic.in 12 http://www.judis.nic.in 13 http://www.judis.nic.in