Madras High Court
C.Stephen vs The District Collector on 10 April, 2015
Author: S.Manikumar
Bench: S.Manikumar, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.04.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MS.JUSTICE V.M.VELUMANI W.P.(MD).No.5482 of 2015 & M.P.(MD).No.1 of 2015 C.Stephen .. Petitioner versus 1.The District Collector, Kanyakumari District, Nagercoil. 2.The Superintendent of Police, Kanyakumari District, Nagercoil. 3.The Inspector of Police, Arumanai Police Station, Kanyakumari District. . . Respondents Prayer Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to prevent the Hindu Awareness General Meeting to be conducted in Arumanai Junction, on 12.04.2015 at 04.00 p.m. as per the pamphlets issued by the Arumanai Area Hindu Associations, Kanyakumari District. !For Petitioner : Mr.C.Bharathi For respondents : Mr.M.Alagadevan, Special Government Pleader. :ORDER
(Order of the Court was made by S.MANIKUMAR ,J.) Claiming himself to be a pro-bono litigant, the petitioner, residing within the jurisdiction of Arumanai Post, Kanyakumari District, has sought for a Writ of Mandamus directing the respondents to prevent the Hindu Awareness General Meeting scheduled to be conducted on 12.04.2015 at 04.00 p.m. at Arumani Junction, Soorakattu Vilai, Kanyakumari District.
2. In his supporting affidavit, the petitioner has contended that on 25.02.2015, Akila Bharath Hindu Maha Saba, Kanyakumari (West) District, conducted the Memorial Day Public Meeting of Veerasarvarkkar. On that day, communal leaders of Hindu Maha Saba participated and delivered speeches, inciting communal disharmony, between Hindus and Christians. According to him, there was a law and order problem, which made him, to prefer a complaint on 25.02.2015 to the Inspector of Police, Arumanai Police Station, Kanyakumari District and Receipt No.94/2015 was given, but no action has been taken.
3. The petitioner has further contended that Arumanai Area Hindu Association of Kanyakumari District has issued pamphlets to conduct an Hindu awareness public meeting on 12.04.2015 at Arumanai Junction. It is the apprehension of the petitioner that if the said meeting is allowed to be conducted, then it would create communal disharmony and law and order problem. According to him, meeting has been permitted to be conducted, without any condition on noise pollution, by using loud speakers. It is his further contention that Meeting scheduled to be conducted at Arumanai Junction would affect traffic, and cause disturbance to the Public. He also submitted that there is a Public market and assembly of large number of persons, at the junction, would affect the general public. The petitioner has further contended that he had given representations, dated 01.04.2015 and 08.04.2015, in person, to the respondents not to permit the above said meeting, but there was no response. Left with no other alternative, the petitioner has filed the present pro bono litigation.
4. When the writ petition came up admission, on instructions from the Sub-Inspector of Police, Arumanai Police Station, Kanyakumari District, Mr.M.Alagathevan, learned Special Government Pleader, submitted that a petition dated 03.04.2015 was submitted to the Sub Inspector of Police, Arumanai Police Station, by Arumanai Area Hindu Associations, Kanyakumari District, seeking permission to conduct a meeting on 12.04.2015, (Sunday) with necessary permission to have loud speakers. He further submitted that subsequently, Mr.A.Anilkumar, one of the Organizers for the Hindu Awareness Meeting, scheduled to be conducted on 12.04.2015, on behalf of the participants in the meeting, has given an undertaking that there would not be any inconvenience to general public or traffic congestion.
5. Learned Special Government Pleader further submitted that the said Anilkumar has also given an undertaking that the speakers would not deliver any speech, in a manner, offending other religions. He has further given an undertaking that in the event of any breach, they would abide by any action to be taken by the police. Recording the above undertaking of the said Anilkumar, one of the organizers of the meeting, Sub Inspector of Police, Arumanai Police Station, Kanyakumari District, in T6/PS/MICK/20/15, has recommended for granting permission to conduct the meeting on 12.04.2015. The Inspector of Police, Arumanai Police Station, Kanyakumari District, has forwarded the recommendation of the Sub-Inspector of Police, vide his endorsement dated 07.04.2015, to the Assistant Superintendent of Police, Thuckalay Sub Division. Going through the materials stated supra, the Assistant Superintendent of Police, Thuckalay Sub Division, has accorded permission.
6. Mandamus is sought to prevent the Hindu Awareness General Meeting to be conducted at Arumanai Junction on 12.04.2015, at 04.00 p.m. As per the statement of the learned Special Government Pleader, permission has already been accorded on 08.04.2015.
7. Material placed before this Court, for perusal, shows that on 03.04.2015, a petition has been submitted by Arumanai Area Hindu Associations, Kanyakumari District, to conduct a meeting on 12.04.2015, with the participation of C.P.Suji, (President, Arumanai Panchayat Union), Singai Prabakaran, A.Sureshkumar, Shoba Surendaran. On behalf of Arumanai Area Hindu Associations, Kanyakumari District, one Mr.Anilkumar has sought for permission. Subsequently, on 06.04.2015, an application in the prescribed format, for using loudspeakers, vide No.13833, has been submitted by an Association, with Registration No.125/2003, duly signed by Mr.Anilkumar, which is also extracted hereunder:-
"bjd;Fkhp xyp, xsp chpikahsh; kw;Wk; mikg;ghsh; eyr;rA;fk;
gjpt[ vz; 125/2003 jiyik mYtyfk;.
fUA;fy; -629 158 xyp bgUf;fp mikf;f fhty;Jiwapd; mDkjp Bfl;Fk;
tpz;zg;g gotk;
vz; : 13833 1.kDjhuhpd; bgau; :A.mdpy;Fkhh; 2.kDjhuhpd; Kfthp : Myiwtpis, mUkid. 3.xypbgUf;fp mikf;f mDkjp Bfl;Fk; ehs; kw;Wk; Beuk; :12.04.2015, khiy 4 kzp 4.ve;jtif epfH;r;rpf;F xyp bgUf;fp mikf;f mDkjp Bfl;fg;gLfpwJ :#pe;J tpHpg;g[zh;t[ bghJ Tl;lk;,
5.ve;j nlj;jpy; xypbgUf;fp mikf;f : mUkid re;jpg;g[ mDkjp Bfl;fg;gLfpwJ?
6.xypbgUf;fp mikf;Fk; nlj;jpd;
mUfpy; kUj;Jtkid,muR mYtyfA;fs;, tHpghl;Lj;jyA;fs;, gs;sp, fy;Y]hpfs;, VBjDk; cz;lh? : ----
7.xypbgUf;fp mikf;Fk; nlk; ve;j fhty;
epiya vy;ifia rhu;e;jJ : mUkid. """
8.As stated supra, there is also a written undertaking given by Mr.Anilkumar on behalf of others. The pamphlets stated to have been issued for the Hindu Awareness Meeting to be held on 12.04.2015 at Arumanai Junction at 04.00 p.m. contains the following subjects:-
"""md;g[ilaPh;, rkPgfhykhf mUkid gFjpapy; bghJf;Tl;lA;fs; Kykhf @#pe;Jf;fisa[k;, #pe;J bja;tA;fisa[k; nHpt[gLj;jp kj Bkhjy;fis J[]z;Lk; tifapy; Bgrp tUfpd;w Bghyp kjthjpfspd; nHpbray; ePoj;Jf;bfhz;Bl tUfpwJ.
ek; bja;tA;fis Bga; vd;Wk;, rhj;jhd; vd;Wk;, ek;ik ghtpfs; vd;Wk; th;zpj;jhy; ehk; tha; Ko bksdpahf nUf;f Btz;Lkh?
rpWghd;ik vd;w bgahpy; bgUk;ghd;ik kf;fSf;F fpilf;fhj rYiffis bgw;Wf;bfhz;L bgUk;ghd;ik kf;fis Kl;lhshf;f epidf;Fk; fath;fSf;F ghlk; g[fl;l Btz;lhkh?
kjkhw;wk; bra;gth;fis brf;a{yh;thjp vd;Wk;, kjkhw;wj;ij vjph;g;gth;fis tFg;g[thjpfs; vd;Wk; Kj;jpiu Fj;Jk; Bghyp kjrhh;gpd;ikthjpfis fz;of;f Btz;lhkh?
kjkhw;wk; ek; Bjrj;jpw;Fk;. bja;tj;jpw;Fk;, jh;kj;jpw;Fk; mghak; vd;gij czh;ejpl.
Bghyp kjrhh;gpd;ik Bgrp tUfpd;w murpay;thjpfspd; mutizg;gpy; bfhf;fhpf;fpd;w Bghyp kjthjpfs; Fkhp khtl;l #pe;Jf;fis fps;Sf;fPiuahf epidj;J gaKWj;jp Bgrp Tf;FuypLfpd;w mtyepiy mUkidapy; tl;lhu gFjpfspy; bjhluhky; nUf;f ne;j Fkhp kz;zpBy """ehkhw;Fk; Foay;Byhk;, ekid mq;Brhk";" vd;W cuf;f Ttp ne;j nHpepiyia BtuWj;jpl jd;khdk; cs;s #pe;JBt mzpjpuz;oL! ju;kj;jpw;fhf BghuhLBthk;! mq;RtJ #pe;Jtpd; jd;ikay;y!! ju;kk; fhf;f ju;kk; ek;ik fhf;f!! rA;fkpg;Bghk; mUkidapy;! xd;WgLBthk; btw;wpbgWBthk;!! X! #pe;JBt! vGe;jpU! cd; rkaj;ij g[hpe;J bfhs;.
cd;Dila bgUikia btspg;gLj;J!!
9.Having regard to the topics mentioned in the pamphlets, the restrictions imposed under Article 19(1)(a)&(b) of the Constitution of India, and secularism, which we have resolved to ourselves, this Court deems it fit to consider a decision of the Hon'ble Apex Court in State of Karnataka v. Dr.Praveen Bhai Thogadia, reported in [2004 (4) SCC 684]. Judicial notice can be taken that Kanyakumari District is sensitive to religious issues, and the State has got a solemn duty to protect the rights of persons belonging to all religions within the Constitutional limits of freedom, speech and expression. Few paragraphs from the above decision are reproduced hereunder:- "6. Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them. Past conduct and antecedents of a person or group or an organisation may certainly provide sufficient material or basis for the action contemplated on a reasonable expectation of possible turn of events, which may need to be avoided in public interest and maintenance of law and order. No person, however big he may assume or claim to be, should be allowed, irrespective of the position he may assume or claim to hold in public life, to either act in a manner or make speeches which would destroy secularism recognised by the Constitution of India. Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that the State should have no religion of its own and no one could proclaim to make the State have one such or endeavour to create a theocratic State. Persons belonging to different religions live throughout the length and breadth of the country. Each person, whatever be his religion, must get an assurance from the State that he has the protection of law freely to profess, practise and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of one?s own presumptions of good social order. Therefore, whenever the authorities concerned in charge of law and order find that a person?s speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings.
7. Communal harmony should not be made to suffer and be made dependent upon the will of an individual or a group of individuals, whatever be their religion, be it of a minority or that of the majority. Persons belonging to different religions must feel assured that they can live in peace with persons belonging to other religions. While permitting holding of a meeting organised by groups or an individual, which is likely to disturb public peace, tranquillity and orderliness, irrespective of the name, cover and methodology it may assume and adopt, the administration has a duty to find out who the speakers and participants are and also to take into account previous instances and the antecedents involving or concerning those persons. If they feel that the presence or participation of any person in the meeting or congregation would be objectionable, for some patent or latent reasons as well as the past track record of such happenings in other places involving such participants, necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may not justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous consequences it may result in if not prevented forthwith, cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life ? preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of courts ? unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of those in power, and interference as a matter of course and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent. It is useful to notice at this stage the following observations of this Court in the decision reported in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr1: (SCC p. 757, para 24) ?24. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence: see Jagrupa Kumari v. Chotey Narain Singh2 which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. Insofar as the other parts of the section are concerned the keynote of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.?
......
9. Our country is the world?s most heterogeneous society with a rich heritage and our Constitution is committed to high ideas of socialism, secularism and the integrity of the nation. As is well known, several races have converged in this subcontinent and they have carried with them their own cultures, languages, religions and customs affording positive recognition to the noble and ideal way of life ? ?unity in diversity?. Though these diversities created problems in early days, they were mostly solved on the basis of human approaches and harmonious reconciliation of differences, usefully and peacefully. That is how secularism has come to be treated as a part of fundamental law, and an unalienable segment of the basic structure of the country?s political system. As noted in S.R. Bommai v. Union of India3 freedom of religion is granted to all persons of India. Therefore, from the point of view of the State, religion, faith or belief of a particular person has no place and given no scope for imposition on individual citizen. Unfortunately, of late, vested interests fanning religious fundamentalism of all kinds vying with each other, are attempting to subject the constitutional machineries of the State to great stress and strain with certain quaint ideas of religious priorities, to promote their own selfish ends, undeterred and unmindful of the disharmony it may ultimately bring about and even undermine national integration achieved with much difficulties and laudable determination of those strong-spirited savants of yesteryear. Religion cannot be mixed with secular activities of the State and fundamentalism of any kind cannot be permitted to masquerade as political philosophies to the detriment of the larger interest of society and basic requirement of a welfare State. Religion sans spiritual values may even be perilous and bring about chaos and anarchy all around. It is, therefore, imperative that if any individual or group of persons, by their action or caustic and inflammatory speech are bent upon sowing seeds of mutual hatred, and their proposed activities are likely to create disharmony and disturb the equilibrium, sacrificing public peace and tranquillity, strong action, and more so preventive actions are essentially and vitally needed to be taken. Any speech or action which would result in ostracization of communal harmony would destroy all those high values which the Constitution aims at. Welfare of the people is the ultimate goal of all laws, and State action and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of the society as a whole and not of any individual or particular groups carrying any brand names. It is inconceivable that there can be social well- being without communal harmony, love for each other and hatred for none. The core of religion based upon spiritual values, which the Vedas, Upanishads and Puranas were said to reveal to mankind seem to be: ?Love others, serve others, help ever, hurt never? and ?sarvae jana sukhino bhavantoo?. One- upmanship in the name of religion, whichever it be or at whomsoever?s instance it be, would render constitutional designs countermanded and chaos, claiming its heavy toll on society and humanity as a whole, may be the inevitable evil consequences, whereof."
10. Though Mr.Anilkumar, one of the organizers, has given an undertaking on behalf of Arumanai Area Hindu Associations, Kanyakumari District, to the Police, that in the Meeting scheduled to be conducted on 12.04.2015, no one would deliver any speech, inciting or creating religious disharmony or law and order problem, and that they would abide by any action to be taken by the police, we have our own reservation, as to how an undertaking given by one of the persons would bind others. Topics mentioned in the pamphlet for the meeting on 12.04.2015 indicate that those who are against Hindu religion should be taught a lesson; persons who involve in conversion and claim to be practising secularism should be condemned; conversion is a threat to the country and Hinduism and for other reasons stated in the pamphlet, and thus there is necessity to have a Hindu Awareness Meeting, are matters which require serious consideration by the law enforcing agencies, in the light of the views expressed by the Hon'ble Supreme Court on the rights of freedom, speech and expression, vis a vis, secularism, which is the basic structure of the Constitution of India and in this context, we make it clear that it is the duty of the State to see that the speakers do not exceed the 'Lakshman Reka', offending the religious feelings and sentiments of others and that there is no religious disharmony. While granting permission for any public meeting, particularly to any Religious Association in the name of awareness, State should be more cautious and bear in mind their responsibility towards maintaining religious and communal harmony, and the law and order problem. Even one 'word' uttered by any of the speakers may cause serious problems, in the area, where there is religious and communal sensitivity. At this juncture, we also deem it fit to consider Article 25 of the Constitution of India, which states as follows:
"25.Freedom of conscience and free profession, practice and propagation of religion:--
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. "
11.Though Article 19(1)(a) of the Constitution of India gives freedom of speech and expression, there cannot be any blanket order permitting a meeting to be conducted by any person or an association and in this context, we also refer to the decision of a Hon'ble Division Bench of this Court in Rama Muthuramalingam Vs. The Deputy Superintendent of Police, Tiruvarur District, reported in 2004(5) CTC 554, which was subsequently confirmed by the Supreme Court. We only express our due consideration that the decision to permit a meeting scheduled to be conducted on 12.04.2015 should not give rise to any religious or communal disharmony. At this juncture, we deem it fit to extract few paragraphs from the judgment in Rama Muthuramalingam's case (cited supra):-
"8. Before adverting to the facts of this case, this Court deems it fit to consider a decision in Rama Muthuramalingam Vs. The Deputy Superintendent of Police, Tiruvarur District, reported in 2004(5) CTC 554, wherein the Hon'ble Division Bench of this Court, while explaining the scope of judicial review on administrative action and on the aspect of adjudicating an order pertaining to maintenance of law and order, at paragraph Nos.10 & 11 has held as follows;
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-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. "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:
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 not embarrass the administrative authorities in this connection.
12. Maintenance of law and order is the function of the State. With their experience and training, and in particular, in the matter of granting permission to a meeting, procession etc., Police should be given the latitude to take an executive decision as to whether a meeting should be conducted at a particular place or not.
13.Having regard to the undertaking given by Mr.Anilkumar, representing others, the Assistant Commissioner of Police, Thukkaly Sub- Division, has given permission for the meeting. While recording the permission, we only wish to state that the police has to take into consideration the inconvenience of public, traffic, law and order problems and the constitutional rights of all citizens, irrespective of the religion to which they belong. In addition to the conditions imposed by the Police, we also deem it fit to impose the following conditions;-
i)Names and particulars of the organizers to be present at the meeting shall be furnished to the Inspector of Police, Arumanai Police Station, Kanyakumari District.
ii)The official respondents shall monitor that none of the speakers address the gathering in any manner offending the rights and religious sentiments of others.
iii) Organizing Committee of the Hindu Awareness Meeting or the participants shall not raise any slogans offending other religion.
iv) Organizing Committee and the participants of the said meeting shall not carry any flex boards or placards, which may cause religious disturbance and use of loudspeakers should be within the permissible limits.
v) Official respondents are directed to ensure that the Organizing Committee shall give an undertaking that they would maintain religious harmony and that public peace and tranquility is maintained.
vi) Organizing Committee of the meeting shall also abide by such other reasonable conditions that may be imposed by the Inspector of Police, Arumanai Police Station, Kanyakumari District.
vii) If there is any violation of the conditions imposed by this Court, in addition to the conditions imposed by the Inspector of Police, Arumanai Police Station, official respondents are directed to take action.
vii) It is made clear that prevention of any untoward incident should be the prime consideration of the law enforcement agency.
14.The District Collector, Kanyakumari District and the Superintendent of Police, KanyakumarI District, should ensure the implementation of the order of this Court in letter and spirit. The writ petition is disposed of with the above direction. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes/No (S.M.K,J.) (V.M.V.,J.) Internet : Yes/No 10.04.2015 jikr To 1.The District Collector, Kanyakumari District, Nagercoil. 2.The Superintendent of Police, Kanyakumari District, Nagercoil. 3.The Inspector of Police, Arumanai Police Station, Kanyakumari District. S.MANIKUMAR,J. and V.M.VELUMANI,J jikr W.P.(MD).No.5482 of 2015 & M.P.(MD).No.1 of 2015 10.04.2015