Madras High Court
Kali.Pungundran vs The Assistant Returning Officer on 12 February, 2019
Equivalent citations: AIRONLINE 2019 MAD 1640
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.2.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.11014 of 2019 and
W.M.P. No.11448 of 2019
Kali.Pungundran .. Petitioner
Vs.
1.The Assistant Returning Officer
109 Gudalur (SC) Assembly Segment/
19 Nilgiris (SC) Parliamentary Constituency
Revenue Divisional Officer, Gudalur
2.Director General of Police
Dr.Radhakrishnan Road
Mylapore, Chennai - 600 004
3.The District Superintendent of Police
Nilgiris, Nilgiri District .. Respondents
Writ petition filed under Article 226 of the Constitution of India,
for a Writ of Certiorarified Mandamus, calling for the records in
R.C.A4/2005/2018 dated 7.4.2019 on the file of the 1st respondent
and quash the same as illegal and arbitrary and against the
constitutional provisions guaranteed under Article 19(1)(g) of the
Constitution of India and further direct the respondent to grand
permission to conduct the meeting as scheduled.
For Petitioner : Dr.A.Thiagarajan,
Senior Counsel
for D.Veerasekaran
For Respondents : Mr.Niranjan Rajagopalan,
for R1 to R3
http://www.judis.nic.in
2
ORDER
(Delivered by S.MANIKUMAR, J.) Vice President of Dravidar Kazhagam, has filed the instant writ petition for a writ of certiorarified mandamus, to quash the proceedings in R.C.A4/2005/2018 dated 7.4.2019 on the file of the The Assistant Returning Officer, 109 Gudalur (SC) Assembly Segment/ 19 Nilgiris (SC) Parliamentary Constituency, Revenue Divisional Officer, Gudalur, / respondent No.1, as violative of Article 19(1)(g) of the Constitution of India and sought for a further direction to respondents to grant permission to conduct the meeting as scheduled.
2. Supporting the prayer sought for, petitioner has contended that on 3.4.2019, Mr.M.Nagendiran, District Secretary, Dravida Kazhagam of Nilgiris District, gave a letter seeking permission to the Superintendent of Police, Gudalur, wherein he has mentioned that the party leader would speak at the meeting supporting "Madha Sarbattra Murpokku Kootani". Permission was refused on the grounds that earlier on 4.3.2019, the party leader, during Trichy election campaign had spoken derogatory remarks against a particular religion, which has caused Law and Order problem in Trichy. Meeting scheduled was denied on the ground that the Deputy Superintendent of Police, in his report has not recommended for giving permission to conduct a meeting in Gudalur Reserved Legislative Constituency as it may cause http://www.judis.nic.in 3 Law & Order problem. Thus, acting on the report of Deputy Superintendent of Police and Revenue Divisional Officer, the Assistant Returning Officer, 109 Gudalur (SC) Assembly Segment/ 19 Nilgiris (SC) Parliamentary Constituency, Revenue Divisional Officer, Gudalur/ respondent No.1, vide proceedings in R.C.A4/2005/2018 dated 7.4.2019, has denied permission for a public meeting scheduled on 9.4.2019 at 5.00 p.m to 8.00 p.m at Gandhi Thidal, Gudalur. Order of rejection, reads thus:
From To
Assistant Returning Officer, District Election Officer,
109 Gudalur (SC) Assembly Segment/ 19 Nilgiris (SC) Parliamentary
19 Nilgiris (SC) Parliamentary Constituency, Constituency,
Revenue Divisional Officer, Gudalur The Collector of Nilgiris
Udhagamandalam
R.C.A4/2005/2018 Dated 7.04.2019
Respected Madam,
Sub : Election Nilgiris Parliamentary Constituency - Gudalur Assembly Segment - request for Public meeting permission from Thiru.M.Nagendran, District Secretary, Dravidar Kazhagam- permission denied - reg.
Ref : 1.M.Nagendran, Dravidar Kazhagam request letter dated 03.04.2019
2.Deputy Superintendent of Police, Gudalur R.C. 46/Gudalur Police dated 06.04.2019
----------
I invite kind attention to the reference cited. In the reference 1st cited, The Nilgiris District, Dravidar Kazhagam District Secretary Thiru.M.Nagendran has submitted an application for permission for public meeting on 09.4.2019 at 5.00 p.m to 8.00 p.m at Gandhi Thidal, Gudalur, Dravidar Kazhagam leader Thiru.K.Veeramani will be speaking in the meeting supporting the "Madha Saarbatra Murpokku Kootani" candidate. The request was forwarded to Gudalur Police Inspector for report.
In the reference 2nd cited, the Deputy Superintendent of Police, http://www.judis.nic.in 4 Gudalur has stated that during the meeting in Trichy on 04.03.2019, Thiru.K.Veeramani has said derogatory remarks against Hindu Gods and consequently there arose a serious law and order problem in Trichy during and after the meeting. So the Deputy Superintendent of Police, Gudalur has denied permission for the above said meeting in Gudalur.
Considering the inputs from the Deputy Superintendent of Police and after assessing the issue independently, the request of Thiru.Nagendran Dravidar Kazhagam for the meeting on 9.4.2019 at Gudalur is denied for keeping law and order and peace at Gudalur Assembly Segment.
Assistant Returning Officer, 109 Gudalur(SC) Assembly Segment/ 19 Nilgiris (SC) Parliamentary Constituency, Revenue Divisional Officer, Gudalur.
3. Rejection order is assailed on the following grounds:
a) Impugned order passed in R.C.A4/2005/2018 dated 07.04.2019 is illegal, unreasonable and against the constitutional mandate;
b) Earlier, permission was given and before passing the impugned order, no opportunity was given to the petitioner and therefore order impugned is against the principle of natural justice;
c) Grounds stated in para 2 of the impugned order is false and there is no basis to pass the impugned order. There was no reference about the earlier order, which shows the malafide intention;
d) The respondent has no right to reject the application and denial is against Article 19(1)(g) of the Constitution of India. Request to conduct a meeting ought to have been allowed with restrictions, if any.
e) The respondents is not justified in comparing the situation in one area and with other areas and prevailing situation in that area is irrational; and http://www.judis.nic.in 5
f) The respondents have failed to consider the series of meeting attended and never said anything about religious heads and God, and hence the order is liable to be quashed.
4. Assailing the reasons assigned in the grounds of rejection dated 7.4.2019, Dr.A.Thiagarajan, learned senior counsel, appearing for the petitioner, submitted that there cannot be a blanket order, denying permission to conduct a meeting, where there is participation of the President of the political party and that would amount to imposing a ban and restraint on the fundamental rights guaranteed under Article 19(1)(a) and (b), freedom of speech and expression and to assemble peaceably and without arms, that would infringe not only the right of a political party to conduct a meeting but would also infringe the right of the President of the political party, to exercise his constitutional and fundamental right under Article 19(1)(a) and (b) of the Constitution.
5. Inviting the attention of the contents of the FIR registered on the file of Gandhi Market Police Station in Crime No.207 of 2019 under Sections 147, 153, 153-A, 294(b), 323, 324, 336, 505(ii), 506(i) of IPC, learned senior counsel for the petitioner submitted that perusal of the FIR does not indicate that the President of the political party, has addressed anything offending the religious sentiments and therefore, denial of permission to conduct a metting on 9.4.2019 vide order of http://www.judis.nic.in 6 the Assistant Returning Officer, 109 Gudalur (SC) Assembly Segment/ 19 Nilgiris (SC) Parliamentary Constituency, Revenue Divisional Officer, Gudalur, / respondent No.1, is against the constitutional right and hence the order impugned has to be set aside.
6. By inviting the attention of this court to a judgment of the Hon'ble Division Bench of this court in Rama.Muthuramalingam, State Propaganda Committee Member vs. The Deputy Superintendent of Police, Mannargudi reported in 2004 SCC OnLine Mad 798:(2004) 5 CTC 554:(2004) 4 LW 737:(2005) 1 Mad LJ 1:AIR 2005 Mad 1, Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India, submitted that in the matter of maintaining Law & Order, police should be allowed to be given the latitude to decide and in the case on hand, report of the Deputy Superintendent of Police, Gudalur R.C.46/Gudalur police dated 6.4.2019 and the Revenue Divisional Officer, have been taken note of by the Assistant Election Officer, 109 Gudalur (Reserve) Legislative Constituency and Revenue Division Officer, Gudalur, before rejecting the request of the petitioner for conducting a political meeting. For the above said reasons, he prayed for dismissal of the writ petition.
7. Heard both sides and perused the materials available on record.
http://www.judis.nic.in 7
8. Material on record discloses that on a request made, permission has been granted to conduct a meeting, on 4.4.2019 in Gandhi Market, Trichirappalli District. Certain untoward incident had occurred. Complaint has been made by one Muthukrishnan. Based on the said complaint, a case in Crime No.207 of 2019 on the file Gandhi Market Police station has been registered for the offences under Sections 147, 153, 153-A, 294(b), 323, 324, 336, 505(ii), 506(i) of IPC. Contents of the complaint in the said FIR reads thus:
Kjy; jfty; mwpf;ifapd; RUf;fk;
gzpe;J rku;g;gpf;fg;gLfpwJ fdk; Fw;wtpay; ePjpj;Jiw eLtu; vz; 5 jpUr;rpuhg;gs;sp ,d;W 05/04/19 njjp 00/30 kzpf;F fhe;jpkhu;bfl; fhty; epiya cjtp Ma;thsu; R.fUzhfud; Mfpa ehd; epiya bghWg;gpy; ,Uf;Fk; nghJ jpUr;rp bgupa brsuh!;ouh bjUit nru;e;j Kj;JfpUc&;zd; kfd; Rnuc&;ghg[ vd;gtu; epiyak; M$uhfp bfhLj;j g[fhiu bgw;W tHf;F gjpt[ bra;j tpguk; gpd;tUkhW/ mDg;g[du; Rnuc&;ghg[. 48-19 S/O Kj;JfpUc&;zd;. 5. bgupabrsuh!;ouhbjU. jpUr;rp/ bgWeu; cau;jpU fhty; Ma;thsu;. fhe;jpkhu;bfl; fhty; epiyak;. jpUr;rp. khefufhty; Iah. ehd; nkw;fz;l Kftupapy; trpj;J tUfpd;nwd;/ ehDk; vdJ ez;gu;fSk; ,af;f ntiy tprakhf jpUr;rp jhuhey;Yhh; mUnf cs;s fPiufil brf;fo g$hh; vd;w ,lj;jpy; ,d;W 04/04/2019 khiy 7/30 kzp mstpy; brd;W bfhz;oUe;njhk; mg;nghJ m';F eilbgw;w jpKf nju;jy; gpurhu bghJ Tl;lj;jpy; ,e;J kj flt[s;fs; kw;Wk; fpUc&;ziua[k; kpft[k; nftykhft[k; mWtUf;fjf;f tifapy; nkilapy; ,Ue;j egu; jpf ngr;rhsh; mwpt[f;fuR ngrpf;bfhz;oUe;jhu; ,J Fwpj;J v';fSf;Fs; eh';fs; Mj';fj;njhL ngrpf;bfhz;oUe;jij ftdpj;j Tl;lj;jpy; ,Ue;j egu;fs; c';fSf;bfy;yhk; vd;d ,';f ntiy g[z;illh njtoah kfd;fsh xG';fh nghapW';f ,y;y c';fis bfhz;W tpLnthk; http://www.judis.nic.in 8 vd;W fw;fis vLj;J v';fis jhf;fpdhu;fs; nkiyapy; ,Ue;J ghu;j;Jf;bfhz;L ,Ue;j kiyf;nfhl;il jpKf gFjp brayhsu; kw;Wk; nkilapy; ,Ue;j jpuhtplfHf epu;thfpfs; m';f vd;dlh mtD';fis mor;rp Juj;J';f vd;W brhd;djpd; ngupy; vd;ida[k; vdJ ez;gu;fisa[k; nkilapy; ,Ue;j egu;fs; kw;Wk; vd; mUfpy; ,Ue;j egu;fs; Rkhu; 50 ngu; vd;ida[k; vdJ ,af;f ez;gu;fila[k; jhf;fp midtiua[k; eP';fs; ahUlh njtoah kfd;fsh vd;W mUfpy; fple;j nru; fl;ilfs; cUl;L fl;ilfs; brUg;g[ fw;fs; nghd;wtw;iw bfhz;L v';fis jhf;fpdhu;fs; eh';fs; m';fpUe;J Xo te;J tpl;nlhk; Mfnt Iah mtu;fs; v';fis jhf;fpa 50 ngu;fs; kPJk; v';fis jhf;Ftjw;F Jhz;oa jpKf. jpf epu;thfpfs; kPJ ,e;J flt[s;fis nkilapy; ,Hpthf ngrpa Mfpatu;fs;kPJ cupa eltof;if vLf;FkhW nfl;Lf;bfhs;fpnwd;/ ,g;gof;F jhaf gzpapy; SD XXX (Rnuc&;ghg[) SIR, RECEIVED THE COMPLAINT AND REGISTERED A CASE IN GANTHIMARKET PS Cr.No.207/19 U/S 147, 153, 153(A), 294(b) 323, 324, 336, 505(ii), 506(1i) IPC On 05.04.19 AT 00.30 HRS. ,jd; Kjy; jfty; mwpf;if kw;Wk; thjpapd; g[fhUld; ,izj;J fdk; ePjpJiw eLtu; vz; 5 mtu;fSf;F mDg;gpa[k; kw;w efy;fs; rk;ke;jg;gl;l mjpfhupfSf;F mDg;gpa[k; efy; xd;W nky; tprhuizf;fhf Ma;thsu; ghu;itf;F mDg;gp itf;fg;gl;lJ/
9. Contention of Dr.A.Thiagarajan, learned senior counsel for the petitioner that there is nothing against the President of the party, and therefore, there cannot be a total ban or restriction of his freedom of speech and expression, to address a meeting, at this juncture, cannot be countenanced for the reason that there is a report of the Deputy Superintendent of Police dated 6.4.2019, which states that on 4.4.2019 in a meeting at Gandhi Market, Trichy, the President of the party, had allegedly spoken about the sentiments of a particular http://www.judis.nic.in 9 religion and thus there was a Law and Order problem. Deputy Superintendent of Police in his report dated 6.4.2019 has stated that if permission is granted for the meeting scheduled on 9.4.2019 at 5.00 p.m to 8.00 p.m, there is a likelihood of Law and Order problem and hence he has recommended not to grant permission. There is material to indicate that the law enforcing agency has taken into account, maintenance of Law and Order and maintenance of public peace.
10. A Hon'ble Division Bench of this court in Rama.Muthuramalingam, State Propaganda Committee Member vs. The Deputy Superintendent of Police, Mannargudi reported in 2004 SCC OnLine Mad 798:(2004) 5 CTC 554:(2004) 4 LW 737:(2005) 1 Mad LJ 1:AIR 2005 Mad 1, held as follows:
" 9. Under our Constitution, the Legislature, the Executive and the Judiciary have there own broad spheres of operation. Ordinarily, it is not proper for one of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset and there will be a reaction.
10. Maintenance of law and order is ordinarily an executive function and it is ordinarily not proper for the judiciary to interfere in this matter. The administrative authorities have expertise in law and order problems through their long experience and training, and the Courts should not ordinarily interfere in such type of matters. The judiciary must therefore exercise self-restraint and not try to interfere with the functions of the executive or the legislature. By exercising self-
http://www.judis.nic.in 10 restraint it only enhances its prestige.
11. This court should not ordinarily interfere in administrative matters, since the administrative authorities are specialists in matters relating to the administration. The Court does not have the expertise in such matters, and ordinarily should leave such matters to the discretion of the administrative authorities. It is only in rare and exceptional cases, where the Wednesbury principle applies, that the Court should interfere, vide Tata Cellular v. Union of India, 1994 (6) SCC 651; Om Kumar v. Union of India, 2001 (2) SCC 386, etc.
26. The expression public order was added in Article 19(2) by the Constitution (First Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court decision in Romesh Thappar Vs. State of Madras (AIR 1950 SC 124). After this amendment reasonable restrictions from the point of view of public order can be placed on the right to freedom of speech and expression and to assemble peaceably. The term 'public order' is synonymous with the public peace, safety and tranquility, vide Superintendent., Central Prison, Fategargh Vs., Ram Manohar (AIR 1960 SC 633), Madhu Limaye Vs. Sub Divisional Magistrate, Monghyr (AIR 1971 SC 2486), etc.
27. It is thus evident that the right to freedom of speech and expression and to assemble peaceably without arms is subject to reasonable restrictions from the point of view of Public Order.
28. The question arises, who is to determine the matter relating to Public Order? The answer is given in Entry 1 to List II (State List) of the 7th Schedule to the Constitution, which states that public order is a matter within the jurisdiction of the State. Article 162 of the Constitution states:
"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws:
http://www.judis.nic.in 11 Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."
29. It is thus evident that public order is a matter within the domain of the State Legislature and the State Executive. That being so, it is not proper for the Judiciary to interfere in matters relating to public order, unless there is violation of some constitutional or statutory provision. There are various considerations for the administration in this matter and the Court should not ordinarily interfere with administrative decisions in this connection. It must be remembered that certain matters are by their very nature such as had better be left to the experts in the field instead of the courts themselves seeking to substitute their own views and perceptions as to what is the best way to deal with the situation. In the present case, this Court should not interfere in a matter which relates to the administration, which is in the best position to know about the public order. What public order problem would arise if speeches are permitted or prohibited in connection with the arrest of Sankarachariyar and other incidental matters? How should the problem be tackled? It is the administration that best knows these problems and their solution. This Court should therefore exercise self-restraint and should n ot embarrass the administrative authorities in this connection.
43. Having laid down the broad principles, we may now come to the facts of the present case. The order dated 15.11.2004 by the Deputy Superintendent of Police, Mannargudi has already been quoted above in this judgment. The said order has denied permission for holding a public meeting as prayed for by the appellant. Against that order the appellant filed a writ petition before this Court, which has been disposed off by the http://www.judis.nic.in 12 learned single Judge by his order dated 23.11.2004. In the impugned order, the learned single Judge permitted the appellant to approach the competent executive authority for seeking permission to hold a public meeting, as prayed for, and directed the said authority to pass appropriate orders within three days of the receipt of the application, provided the appellant-Kazhagam did not create any law and order problem in the locality, nor affect the public peace and tranquility. To this extent the directions of the learned single Judge are unexceptionable. However, in our opinion, the further direction of the learned single Judge in paragraph-10 of his order that the appellant should not speak about the arrest of the Sankarachariyar in the alleged murder case, nor justify the same, nor speak with reference to the investigation connected therewith, were uncalled for and unnecessary. The learned single Judge should have left it entirely to the administrative authorities to decide in their discretion and on the facts of the case, whether speaking about the arrest of the Sankarachariyar or justifying the same or speaking with reference to the investigation connected therewith would create any law and order problem or affect the public order. In our opinion, the entire matter should have been left at the discretion of the administrative authorities, who are best equipped to decide what would disrupt the public order or the law and order situation and what would not. By saying that the appellant should not speak about the arrest of the Sankarachariyar, nor justify the same, nor speak with reference to the investigation connected therewith, the learned single Judge has in fact taken over the task of the administrative authorities, which was not within his domain. It is entirely for the administrative authorities to decide whether speaking about the arrest of the Sankarachariyar or justifying the same or speaking with reference to the investigation would create any law and order or public order problem or not.
http://www.judis.nic.in 13
44. In the circumstances, we modify the direction contained in paragraph 10 of the impugned order and we leave it entirely to the discretion of the administrative authorities to decide whether permitting the appellant-Kazhagam to hold a public meeting, as prayed for, or whether speaking about the arrest of the Sankarachariyar and justifying the same, or speaking with reference to the investigation connected therewith would create a law and order or public order problem or not. If the administrative authorities feel that it may create a law and order or public order problem, then they may prohibit such activities.
45. With the above observations, this writ appeal is disposed of. No costs. Consequently, connected W.A.M.P. is closed."
11. Assistant Election Officer, 109 Gudalur (Reserve) Legislative Constituency and Revenue Divisional Officer, Gudalur, is bound to take note of the report of the law enforcing agency, and decide as to whether permission should be given or not. Refusal to conduct a public meeting on 9.4.2019 between 5.00 p.m and 8.00 p.m, acting on the report of the Deputy Superintendent of Police and Revenue Divisional Officer, cannot be said to be arbitrary. Rejection order is in consonance with the decision of a Division Bench of this court in Rama.Muthuramalingam, State Propaganda Committee Member vs. The Deputy Superintendent of Police, Mannargudi reported in 2004 SCC OnLine Mad 798:(2004) 5 CTC 554:(2004) 4 LW 737:(2005) 1 Mad LJ 1:AIR 2005 Mad 1.
http://www.judis.nic.in 14
12. By inviting the attention of this court to the decision of the Hon'ble Supreme Court in Bharatiya Janata Party, West Bengal vs. State of West Bengal reported in 2019(1) Scale 744, learned senior counsel submitted that liberty may be given to the petitioner to make a fresh representation to the authorities, meeting out the apprehension on law and order problem. At para 5 of the judgment, the Hon'ble Supreme Court, held thus:
" 5... it will be open for the petitioner to submit a further modified proposal, which meets and answers the apprehensions of the State Government, so far as maintenance of law and order is concerned. Once such a proposal is submitted, the State Government will consider the matter and pass appropriate orders keeping in mind that the present involves a case of exercise of the fundamental rights, inter alia, under Article 19(1)(a) of the Constitution of India."
13. Considering the constitutional right of an individual, freedom of speech and expression and right to form an assembly without arms, which is fundamental, and taking note of the decision of the Hon'ble Supreme Court, in BJP's case, while dismissing the instant writ petition, liberty is given to the writ petitioner, as observed by the Hon'ble Supreme Court and extracted supra.
In the result, the writ petition is dismissed. Liberty is granted. However, there shall be no order as to costs. Consequently, the http://www.judis.nic.in 15 connected writ miscellaneous petition is closed.
(S.M.K., J) (S.P., J.)
9.4.2019
Index : Yes/No
Internet : Yes
Asr
To
1.The Assistant Returning Officer
109 Gudalur (SC) Assembly Segment/
19 Nilgiris (SC) Parliamentary Constituency Revenue Divisional Officer, Gudalur
2.Director General of Police Dr.Radhakrishnan Road Mylapore, Chennai - 600 004
3.The District Superintendent of Police Nilgiris, Nilgiri District.
S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
http://www.judis.nic.in 16 asr W.P.No.11014 of 2019 and W.M.P. No.11448 of 2019 9.4.2019 http://www.judis.nic.in