Madras High Court
The Home Secretary vs Era.Selvam on 13 April, 2013
Equivalent citations: AIR 2013 (NOC) 384 (MAD.)
Author: N. Paul Vasanthakumar
Bench: R.K.Agrawal, N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-4-2013 CORAM: The Honourable Mr.Justice R.K.AGRAWAL, Acting Chief Justice and The Honourable Mr.Justice N. PAUL VASANTHAKUMAR Writ Appeal No.842 and 843 of 2013 & Connected Miscellaneous Petitions 1. The Home Secretary, Government of Tamil Nadu, Secretariat, Fort St.George, Chennai 600 009. 2. The District Collector, Collectorate, Singaravelar Maligai, Rajaji Salai, Chennai- 600 001. 3. The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai 600 008. 4. The Assistant Commissioner of Police, Office of the Assistant Commissioner of Police, Mylapore, Chennai 600 004. .. Appellants in both writ appeals Vs. Era.Selvam .. Respondent in W.A.No.842/2013 Kumarappa .. Respondent in W.A.No.843/2013 Both the Writ Appeals are preferred under Clause 15 of Letters Patent against the order of the learned Single Judge of this Court made in W.P.No.10457/2013 and 10458/2013 respectively, dated 12.4.2013. For Appellants : Mr.A.L.Somayajee Advocate General, assisted by Mr.S.T.S.Moorthy, Govt. Pleader Mr.Inbadurai, Spl. Govt. Pleader For Respondents in both appeals : Mr.S.Prabhakaran COMMON JUDGMENT
R.K.AGRAWAL, A.C.J. & N. PAUL VASANTHAKUMAR, J.
These writ appeals are heard in the special sitting. The appeals are preferred by the State Government challenging the order passed by the learned single Judge in W.P.Nos.10457 and 10458 of 2013 dated 12.4.2013 respectively giving permission to hold procession at 3.00 p.m. on 14.4.2013 in the route Rajarathinam Stadium, Egmore, Chennai to Langs Garden Road, Chennai as requested by the writ petitioner in W.P.No.10457 of 2013, and to regulate and control the procession by the Police; and to conduct public meting as requested by the writ petitioner in W.P.No.10458 of 2013 at Mangollai, Mylapore, Chennai-4 from 6.00 to 10.00 p.m. on 14.4.2013 on the occasion of celebration of Dr.B.R.Ambedkar's birth anniversary and to give away awards to certain persons.
2. The learned Advocate General appearing for the appellants based on the contentions raised in the counter affidavit filed in the writ petitions and grounds raised in the writ appeals argued that pamphlets published by the Organisers of the procession and pubic meeting causes great concern for the Police authorities in maintaining peace and tranquility and public order and the conduct of political party, which is organising the same, when such procession and meetings were conducted earlier, there were traffic hazards and law and order problem arose, and bearing the said issues in mind the request to conduct procession was considered and then a show cause notice was issued to the organiser in relation to the procession. The respondents in these writ appeals who filed writ petitions before the learned single Judge submitted explanation to the show cause notice on 10.4.2013 and without waiting for the orders to be passed by the third appellant herein, the petitioners have rushed to this Court by filing the above writ petitions on 11.4.2013 and prayed for issuing a writ of mandamus to hold procession and conduct public meeting. The learned Advocate General relied on the decisions reported in (2004) 4 SCC 684 (State of Karnataka v. Dr.Praveen Bhai Togadia); (2012) 5 SCC 1 (Ramlila Maidan Incident, In Re); Division Bench judgment of this Court reported in 2004 (5) CTC 554 (Rama Muthuramalingam V. DSP, Mannargudi) and two other decisions of learned single Judge of this Court and contended that the authorities have to decide the grant of permission to hold procession and for conducting public meeting based on the ground realities and this Court ought not to have entertained the writ petitions and issued directions and the Law Enforcing authorities are the best judges to assess the prevailing situation in the area, where the permission is sought to conduct procession/public meeting. The learned Advocate General further reiterated that the pamphlets published by the organisers causes worry and if the permission sought for are granted, it may cause disturbance in caste clashes as certain areas in the State are still under the grip of caste tension.
3. Mr.S.Prabakaran, learned counsel appearing for the respondents in the writ appeals on the other hand submitted that the political party "Viduthalai Siruthaigal Katchi" (VCK) is proposing to celebrate the birth anniversary of Dr.B.R.Ambedkar on 14.42013 and the award giving function is being organised by the said party from the year 2007 and for conducting procession from Rajarathinam Stadium to Langs Garden Road, permission was sought as early as on 26.3.2013 and for conducting public meeting at Mangollai, Mylapore permission was sought for on 8.4.2013. The third respondent called the organisers of the procession and suggested to change the timings from 10.00 a.m to 3.00 p.m. and as per the said request only the time to commence the procession was fixed at 3.00 p.m. Subsequently the 3rd respondent went back from the assurance and issued show cause notice and in spite of giving explanation to the show cause notice, no order was passed. As the time to conduct procession and meeting was too short, the writ petitioners approached this Court on 11.4.2013 and after considering the objections raised by the appellants before the learned single Judge, he ordered to grant permission to hold procession and conduct meeting on certain conditions. An assurance was given by the leader of the party, who is also a Member of the Parliament that he will undertake to control the entire cadre, who are conducting procession and meeting and the same was also recorded by the learned single Judge and there is no illegality in the order passed by the learned single Judge. The learned counsel also submitted that all political parties viz., DMK, Congress, BJP and AIADMK conducted public meeting at Mangolai, Mylapore, Chennai and only place where the permission granted to take procession in Chennai City is from Rajarathinam Stadium to Langs Garden Road and therefore writ petitioners alone cannot be discriminated from denying permission to conduct procession and meeting on 14.4.2013, particularly when the said date is the birth anniversary of Dr.B.R.Ambedkar. Learned counsel relied on the decisions reported in AIR 1973 SC 87 (CDJ 1972 SC 441)(Himat Lal K. Shah v. Commissioner of Police, Ahamedabad); (1989) 2 SCC 574 (CDJ 1989 SC 643) (S. Rangarajan v. P.Jagjivan Ram): (2009) 5 SCC 212 (Destruction of Public and Private Property, In Re v. State of A.P.); (2012) 5 SCC 1 (Ramlila Maidan Incident, In Re); and Division Bench decision of this Court reported in CDJ 2008 MHC 613 (C.J.Rajan v. DSP, Myladuthurai) in support of his contentions.
4. We have considered the rival submissions made Mr.A.L.Somayajee, learned Advocate General as well as Mr.S.Prabhakaran, learned counsel for the respondents in both the writ appeals.
5. It is an admitted fact the Viduthalai Siruthaigal Katchi (VCK) is conducting Dr.B.R.Ambedkar birth anniversary and award giving fuunction from the year 2007. For conducting procession on 14.4.2013 the respondent in W.A.No.842 of 2013 submitted an application on 26.3.2013 seeking permission to hold procession at 10.00 a.m. from Rajarathinam Stadium to Langs Garden Road under the leadership of party President, who is also a Member of Parliament. The said application was processed and according to the learned counsel for the respondents, the Commissioner of Police/3rd appellant requested the respondent to change the timing of procession to 3.00 p.m. and the said suggestion was agreed and request was made to give permission to conduct procession from 3.00 p.m. instead of from 10.00 a.m.
6. A show cause notice was issued on 10.4.2013 asking the respondents as to why the permission sought for to conduct procession shall not be rejected and the respondents were directed to approach the Assistant Commissioner of Police of the concerned police limit for the grant of permission to conduct public meeting. Time was granted to give objection up to 12.4.2013 at 11.00 a.m. and objection was filed before the Commissioner of Police on 10.4.2013 itself. No order having been passed and 12.4.2013 being the only working day, the respondents filed the writ petitions before this Court, which was taken up for hearing on 11.4.2013 in a special sitting and the learned Judge ordered to file counter/objection by the State Government and posted the matter on 12.4.2013. On 12.3.2013 counter affidavit was filed and the learned Advocate General urged all the grounds stated in the counter and opposed the prayer made in the writ petitions. The learned Judge passed orders granting permission to conduct procession and award giving function by fixing time i.e, to start procession at 3.00 p.m. and fixing time of meeting from 6.00 to 10.00 p.m. on 14.4.2013.
7. From the perusal of the order of the learned single Judge it could be seen that learned single Judge has ordered to regulate and control the procession without causing any hindrance to general public; procession should move quietly and peacefully; no words, actions, expressions shall be made by the writ petitioners and others, affecting the sentiments of others; the speakers can focus only on general topic and shall not speak on any other topics and on other parties/leaders; after the meeting people shall quietly disburse, without causing disturbance to people in and around and to general public; the vehicles shall be permitted to be parked in Marina area and police shall do the needful; and the cars and vehicles shall not be brought to the place of meeting. The leader of the party, who was present in the Court gave an undertaking to control the entire cadre while conducting processing and meeting and his undertaking was also recorded in the order. The police was directed to provide adequate protection to avoid untoward incidents.
8. Even though the learned Advocate General has argued that giving permission to conduct procession or meeting is to be decided by the Police authorities, the apprehension expressed by the learned Advocate General that about ten to fifteen thousand people will participate in the procession and they may also attend meeting and if procession is permitted to start from Rajarathinam Stadium at 3.00 p.m. the entire crowd will proceed to Mangollai, Mylapore, which is about 7/8 kms from Langs Garden Road and there will be traffic congestion due to movement of large number of vehicles. The second reason stated by the learned Advocate General for not granting permission to conduct public meeting is that on 14.4.2013 being Tamil New Year day, number of devotees will visit Kabaleeswarar temple which is located near the place where the proposed meeting is organised.
9. In reply the learned counsel for the respondents submitted that there is some distance between the temple and the meeting place and there may not be any difficulty to the worshipers, who visit temple on the Tamil New Year Day due to the conduct of public meeting.
10. The appellants cannot deny the right of the people though discretion is vested with them under Section 41 of the Chennai City Police Act, 1888. In Chennai City sufficient police force is available to meet any eventuality. In the decision reported in AIR 1973 SC 87 (Himat Lal K.Shah v. Commissioner of Police, Ahmedabad), it is held that although right to hold a public meeting at a public place may not be a fundamental right by itself, yet it is so closely connected with fundamental right that a power to regulate it should not be left in a nebulous state. Article 19(1)(a) of the Constitution of India guarantees to all citizen the right to freedom of speech and expression subject to reasonable restrictions on the grounds set out under Article 19(2). The reasonable limitations can be put in the interest of sovereignity 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 of an offence. In the decision reported in (1989) 2 SCC 574 (S.Rangarajan v. P.Jagjivan Ram) in paragraph 53 the Supreme Court held thus, "53. 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 Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand 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."
11. In the decision reported in (2012) 5 SCC 1 (Ramlila Maidan Incident, In Re) the Supreme Court held that the Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of democratic system. In para 245 the Supreme Court held thus, "245. .............. 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 tranquillity, 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."
12. Thus, the right of the citizens to conduct procession and public meeting cannot be curtailed, except on definite reasons and not on mere surmises. In the Division Bench Judgment of this Court reported in CDJ 2008 MHC 613 (cited supra) freedom to conduct meeting on a sensitive issue was considered and this Court directed to grant permission to hold the meeting and the police were directed to provide adequate protection for the smooth conduct of the meeting.
13. The decision cited by the learned Advocate General reported in (2004) 4 SCC 684 (supra) was rendered when the prohibitory order imposed under section 144 of the Crl.P.C. was challenged to prohibit religious meeting at communally sensitive area where several communal clashes resulted in several deaths and damages to public and private properties. The said facts are entirely different from the fact of this case.
14. Considering the above principles in mind as well as the claim made by the respondents in these writ appeals that they are organising procession and award giving function on the birth anniversary day of Dr.B.R.Ambedkar on 14.4.2013 and to avoid apprehension expressed by the learned Advocate General that the entire persons participating in the procession will straight away go to the meeting place at Mangollai, Mylapore, Chennai, we are of the view that the said apprehension can be answered by modifying the order of the learned single Judge, directing the writ petitioners/respondents herein to hold procession between 10.00 a.m. and 1.30 p.m. on 14.4.2013 from Rajarathinam Stadium to Langs Garden Road and to conduct public meeting at Mangollai, Mylapore, Chennai-4 from 6.00 to 10.00 p.m. The change of timing will avoid the persons participating in the procession going to the place of meeting straight away as there will be a brake of 4.30 hours. The police are directed to regulate traffic and permit the writ petitioners to conduct procession and meeting as aforesaid. The conditions imposed by the learned single Judge in his order dated 12.4.2013 is to be scrupulously followed by the writ petitioners/respondents herein and organisers and leader of the party, who assured to control the entire cadre. It is needless to reiterate that while conducting procession during the above said time and conduct of meeting, the organisers should see that no untoward incident is allowed to happen and if any violation of the undertaking given by the organisers or by any other person, the appellants are entitled to deal with them to preserve maintenance of peace and tranquility and it is open to them to initiate appropriate action against the violators, in accordance with law.
The writ appeals are disposed of with the above directions. Connected miscellaneous petitions are closed. No costs.
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