WP/35985/2003 of MR.SHANMUGARAJ Vs THE DEPUTY SUPERINTENDENT OF on 19 December 2003

:ORDER

One Shanmugaraj, West District Secretary of Puthiya ThamizhagamPolitical party, aggrieved by order of the Deputy Superintendent of Police,Thenkasi/first respondent herein dated 6-12-2003, rejecting his request forholding an all party Hunger Strike under the presidentship of PuthiyaThamizhagam Founder President Thiru K. Krishnasamy on 10-12-2003 to protestagainst construction of wall across Karuppanathi River after 1 = k.m. fromthe Karuppanathi Dam to a height of 4 feet and length across 155 feet nearKadayanallur, has filed the above writ petition to quash the same and directthe respondents to grant permission to the petitioner to hold an all partyHunger Strike in Quaid-e-Millath Thidal, Kadayanallur, Tirunelveli District.

2. According to the petitioner, he is a District Secretary ofTirunelveli West District of Puthiya Thamizhagam political party.

Karuppanathi Dam comes within the jurisdiction of Kadayanallur Municipalityand the water benefits about 72 tanks, more than 100 villages, comprisingabout 9500 acres of agricultural lands apart from the population of over onelakh including the Kadayanallur Town. While so, during October, 2003, a wallfor a length of 155 feet and height of 4 feet has been constructed across theKaruppanathi Periaru River on a concrete foundation 5 feet thick after 1 =k.m.s from the Dam with a view to stagnate the water for the benefit of a fewland owners adjacent to the said area on both sides of the river. Theconstruction of the wall is arbitrary and illegal. The entire people of thesaid area irrespective of political or other affiliation have protestedagainst the said wall continuously. His political party have been activelyinvolved in all the protests so far. After mutual consultations among allpolitical parties and organisations except the ruling party it was decided tohold an hunger strike in Kadayanallur Town under the presidentship of Dr. K.Krishnasamy who is the president of Puthiya Thamizhagam political party and aformer Member of Legislative Assembly. The petitioner made an applicationdated 25-11-2003 to the second respondent seeking for permission to hold thehunger strike at the Quaid-e-Millath Thidal in Kadayanallur. The firstrespondent, by the impugned order dated 6-12-2003, rejected the permissionsought for on flimsy and non-existent reasons without affording anyopportunity to him; hence the present writ petition.

3. Considering the urgency and the issue raised, this Court directedthe Government Pleader to get instructions. Pursuant to the same, learnedGovernment Pleader secured necessary instructions.

4. Heard Mr. K. Chandru, learned senior counsel for the petitionerand Mr. V. Raghupathy, learned Government Pleader for the respondents.

5. (i) Mr. K. Chandru, learned senior counsel for the petitioner,after taking me through the application of the petitioner and the impugnedrejection order of the first respondent, would contend that the impugned orderis arbitrary and against the principles of natural justice as well asviolative of Articles 14, 19 (1)(b) and 21 of the Constitution of India. Hefurther contended that since the Hunger Strike sought for is to be held in apeaceful manner within the "Thidal" area only, and that even recently i.e.,during October, 2003, political parties were granted permission to hold publicmeetings and other demonstrations in Quaid-e-Millath Thidal; hence the presentorder rejecting the request of the petitioner is discriminatory and notmaintainable. According to him, the respondents cannot restrain peaceful anddemocratic agitation for public cause. He also states that petitionerundertakes that the hunger strike for one day will be peaceful and will notcause any disturbance to any section of the society in any manner whatsoever.

(ii) On the other hand, Mr.V. Raghupathy, learned Government Pleader, oninstructions would contend that in the light of the antecedents of thepetitioner and his leader-Dr. K. Krishnasamy, if permission is granted,there is likelihood of communal clash between two groups and in the interestof peace, public safety and law and order problem, the first respondent isfully justified in rejecting the request of the petitioner; accordingly prayedfor dismissal of the writ petition.

6. I have carefully considered the rival submissions.

7. It is seen from the application of the petitioner dated 25-11-2003

that in order to convey their protest against the construction of wall acrossKaruppa Nadhi after 1 = K.Ms from the Karuppanathi Dam, which, according tothe petitioner, affects the interest of the local people sought permission tohold Hunger Strike for one day i.e., on 10-12-2003 under the Presidentship ofDr. K. Krishnasamy, Founder-President of Puthiya Thamizhagam political partyat Quaid-e-Millath Thidal in Kadayanallur. While rejecting the request of thepetitioner, in the impugned order dated 06-12-2003, the Deputy Superintendentof Police, Tenkasi/first respondent has assigned three reasons, namely:i) The place chosen by the petitioner for hunger strike is nearer to NationalHighway and it would affect the traffic as well as general public on manyaspects; ii) There is a Mosque called Gnaniar Grand Mosque located near the "Thidal"and it would affect the religious sentiments of Muslim community;iii) Inasmuch an all party meeting, including the political party of thepetitioner had already been convened in respect of the same issue, namely,construction of wall across Karuppanadhi Dam, there is no need to observehunger strike again at the instance of Puthiya Thamizhagam political party.

8. Let us consider whether all the three objections are tenable.

First I shall consider the second objection, namely, existence of Grand Mosquenear the "Thidal" where permission is sought for to hold hunger strike. Mr.K. Chandru, learned senior counsel for the petitioner has brought to mynotice that even as early as 25-1 1-2003, the President, Inamthar's committeeMaghuthum Gnaniar Pallivasal, Kadayanallur intimated the petitioner that theyhave no objection in conducting hunger strike on 10-12-2003 between 9 a.m.and 5 p.m. in the "Thidal", provided that there will not be any obstructionto the persons who visit the Mosque. A copy of the said letter finds a placeat page No.3 of the typed-set of papers filed along with the writ petition.In the light of the said letter, reason No.2 for rejecting the request of thepetitioner cannot be sustained.

9. Coming to the first ground for rejection, namely, the place in which the petitioner sought for hunger strike lies near the National Highwayand it would affect the traffic and general public. In the impugned order,though it was stated that the place is nearer to the National Highway, theactual/approximate distance between the "Thidal" and the National Highway hasnot been mentioned. The petitioner has stated in the affidavit that theQuaid-e-Millath Thidal is situated nearly 500 metres away from the NationalHighway and it is the usual place where public meetings and demonstrations arebeing held and it will in no way affect the free flow of traffic. Evenaccording to the learned Government Pleader, as per his instruction, thedistance is 100 metres i.e., roughly 300 feet away from the National Highway.It is relevant to note that the petitioner has explained that the permissionsought for is only for hunger strike between 9 A.M. and 5 P.M. They assuredthat it would be held in a peaceful manner within the Thidal area only andthere is no necessity for the persons participating in the hunger strike tospill into the street. In the light of the assertion that several meetingshad been held at the instance of the political parties in the very same Thildal, and the recent meeting was held in October, 2003, and taking note ofthe fact that permission sought for is to hold hunger strike only, that too,between 9 A.M. and 5 P.M. and also of the fact that even according to thepolice, it lies 100 metres away from the National Highway, I am satisfied thatthe first ground for rejection of the permission also cannot be sustained.

10. Coming to the third ground that since all political partiescondemned the action in constructing a wall across the river on an earlieroccasion, there is no need for the petitioner and his political party toobserve hunger strike again for the very same cause, as rightly pointed out bythe learned senior counsel for the petitioner, the issue to be decided is,whether the proposed hunger strike for one day is justifiable or not? and itis not for the respondents to go into the other aspects held previously. Asrightly contended, if the proposed hunger strike is peaceful withoutdisturbance to any one, there cannot be any objection in permitting thepetitioner and his political party to observe hunger strike as claimed. I amof the view that the rejection on the ground that it is unnecessary to observehunger strike is also not tenable.

11. Mr. V. Raghupathy, learned Government Pleader, by placing a

Analysis

11. Mr. V. Raghupathy, learned Government Pleader, by placing a report of Mr. R. Manickam, a retired District Judge about the incident thattook place few years back and the confidential file maintained by KadayanallurPolice Station and also pointing out the antecedents of Dr. K. Krishnasamy,founder leader of Puthiya Thamizhagam political party, would contend that ifpermission is granted as claimed by the petitioner, it would lead to communalclash and there is a likelihood of law and order problem in Kadayanallur Town.I have perused all those materials. It is true that Dr. Krishnasamy, leaderof the political party, is facing certain criminal cases. When the applicantand their party assure that the proposed hunger strike will be held in apeaceful manner, I am of the view that in a democratic country like us,permission cannot be rejected on that ground alone. In this regard, it isworth-while to refer a decision of R. Jayasimha Babu, J., in Nedumaran, P.v. State of Tamil Nadu and others, reported in 1999-1-L.W. (Crl.) 73. Inthat case it was submitted by the Government that intelligence report clearlyshows that the primary object of the meeting was to rouse the feelings of thepersons to voice support for this banned organisation, and having regard tothe fact that there were many factors even amongst those who were supportingthe banned organisation, there was likelihood of breach of public tranquillityand public safety, and that the apprehension of such breach was neither remotenor farfetched, but was very real and direct. Rejecting the said contention,the learned Judge held: (paras 15, 16 and 17)

"15. The rights conferred on the citizens by Article 19 of the Constitutionare precious rights and are not to be lightly breached or restricted by theState or any functionary of the State. Any regulation of exercise of thoserights must be for the purposes specified in Article 19 of the Constitutionitself, and that power must be so exercised as to subserve the larger publicgood. The power to impose restrictions is not the power which is availablefor exercise in an arbitrary manner or for the purpose of promoting theinterest of those in power, or for suppressing dissent. Democracy can be madedynamic and truly alive only when there is free market for ideas and discussion and debate is not only permitted but is encouraged. All expressionof opposing view point cannot be regarded as dangerous to the safety orsecurity of the country and all expressions which do not find the approval ofthose exercising the power of the State cannot be regarded as harmful to theState and to the public order.

16. The power conferred on the Commissioner under Section 41 of the MadrasCity Police Act is sweeping, that power is meant to be exercised with greatcare and caution. The Madras City Police Act is a pre-Constitution enactment,and the powers conferred on the authorities at a time when the country wasunder the colonial regime, and during the period when suppression of dissentwas considered to be a legitimate policy of the State, cannot be exercisedafter the enactment of the Constitution in the same manner, as it wasexercised earlier. The Intelligence Report placed before the Court shows thatthe police still have the attitude which does not seem to recognise that thecountry is a democratic nation, where every citizen has a right to full andequal participation in the process of Government. No citizen can be regardedas an enemy of the State merely because he has voiced a view which is not theone favoured by those in authority.

17. The fact that the police are vested with power should not make themassume that, that power is available for exercise in any manner that theyconsider fit. That power is to be exercised strictly within the ambit of theprovisions of the Constitution, more particularly, the requirement that anyrestriction placed on the exercise of fundamental rights should be areasonable restriction, and the restrictions so placed should be shown to beessential, having regard to the permissible purpose for which restrictions maybe imposed."

The said observation and conclusion of the learned Judge is also applicable tothe facts of the case on hand.

12. Learned Government Pleader by drawing my attention to Section 41of the Madras City Police Act, 1888 which is also applicable to otherdistricts, submits that considering the preservation of the public peace orpublic safety, the first respondent is justified in rejecting the request ofthe petitioner. It is relevant to note that the Madras City Police Act, 1888is a pre-Constitution enactment and as observed in the above decision, thepowers conferred on the authorities at a time when the country was under thecolonial regime, and during the period when suppression of dissent wasconsidered to be a legitimate policy of the State, cannot be exercised afterthe enactment of the Constitution in the same manner, as it was exercisedearlier. Even otherwise, as per sub-section (4) of Section 41 before passingan order refusing to grant permission, an opportunity must be afforded to theperson who applied either in person or by pleader. In the case on hand,though the first respondent has rejected the request of the petitioner, heneither issued a show cause notice nor afforded to him a personal hearing asprovided under sub-section (4) of Section 41.

13. Learned Government Pleader relying on an order of the SupremeCourt in Civil Appeal No. 7926/2001 dated 10-04-2003, would contend that the antecedents of the organiser is one of the relevant factors and in view ofreport by the police against Dr. K. Krishnasamy, it is not desirable togrant such permission. It is true that the appeal before the Supreme Courtwas preferred by K.K. Road Merchants Association, Tamil Nadu against thejudgment of the Division Bench of this Court declining to grant such relief.While hearing the matter, Secretary to Government, Home Department, State ofTamil Nadu filed an affidavit conveying their stand. After recording thecontents of the affidavit, the Hon'ble Supreme Court closed the appeal,holding no further orders are necessary. Firstly, the Hon'ble Supreme Court,in the light of the stand taken in the affidavit, closed the appeal.Secondly, even in the affidavit it is stated that blanket ban might causecomplications and that a decision has to be taken in each case with referenceto the nature and purpose of the meeting or procession, the antecedents of theorganisers and whether there would be any prejudice in maintenance of law andorder, public tranquility, peace and security of the State. There is nopositive order stating that if the antecedents of the organiser is bad, therecannot be any meeting being organised by such person. It is true that Dr.Krishnasamy is facing certain criminal cases. So long as the procession orhunger strike is assured to be peaceful without harm and not against anyindividual or group or community, in the light of the Constitutionalprotection and mandate, there cannot be any blanket prohibition. As observedin 1991-1-L.W. (Crl.) 73 (cited supra), no citizen can be regarded as anenemy of the State merely because he has voiced a view which is not the onefavoured by those in authority. Likewise, though police are vested withpower, I am of the view that the power is to be exercised strictly within theambit of the provisions of the Constitution, particularly the requirement thatany restriction placed on the exercise of fundamental rights should be areasonable restriction, and the restriction so placed should be shown to beessential, having regard to the permissible purpose for which restrictions maybe imposed.

14. It is also useful to refer a recent order of the First Bench ofour High Court dated 12-12-2003 rendered in Writ Petition No. 36209 of 2003(Arcot N. Veerasamy Vs. The Government of Tamil Nadu, represented by itsHome Secretary, Chennai-9). The said writ petition came to be filed by way ofPublic Interest Litigation at the instance of a political party of the Statepraying for issuance of a writ of mandamus forbearing the Government and thepolice officers from preventing the office bearers and cadres of their partyfor participation in the picketing in front of the State and CentralGovernment offices and also from making any preventive arrests. Whileconsidering the said issue, Their Lordships have considered the right of acitizen to participate in a peaceful procession and the right of State/ policeto impose restriction considering the peace and maintenance of law and order.The following observation of the Division Bench is relevant: (para 5)

"5. Dissent is the essence of the democracy and Clauses (a) and (b), read together, to sub-Article (i) of Article 19 of the Constitution, grantFundamental Rights to citizens to assemble peaceably and without arms; andalso of freedom of speech and expression. But they shall be subject to suchreasonable restrictions as envisaged in sub Articles (2) and (3) of Article19. Sub-Article (2) is not very much relevant for this case and what is relevant is subArticle (3) under which the State is entitled to place suchreasonable restrictions in the interest of public order. While the petitionerand his party are entitled to assemble peaceably and without arms, the policeare entitled to place reasonable restrictions and in fact, such assembly canonly be subject to permission, which can be granted under Section 41 of theMadras City Police Act, 1888..."

Ultimately the Division Bench permitted the petitioner therein for peacefulprocession to express their views by slogan shouting but without indulging inany violence and subject to follow such regulatory methods, which the policeformulate for the purpose of peaceful procession.

15. In the light of what is stated above, the impugned Memo of thefirst respondent dated 06-12-2003 rejecting the request of the petitioner tohold All Party Hunger Strike on 10-12-2003 is quashed, and the respondents aredirected to grant permission to the petitioner to hold an All Party HungerStrike in the Quaid-e-Millath Thidal at Kadayanallur, Tirunelveli District forone day between 20 th December and 31st December, 2003, subject to thefollowing conditions:

i) The assembly for the Hunger Strike should be at a distance of at least 100metres away from the National Highway;

ii) The Hunger Strike should be between 9 A.M and 5 P.M;

iii) The participants are permitted to address or raise slogans only withregard to the subject in question, namely, construction of wall acrossKaruppanadi river;

iv) No one is permitted to mention any individual's name or the name of anycommunity or religion during the entire period of Hunger Strike.

If there is any violation of the conditions referred to above, the police willbe free to take appropriate action according to Law. Writ Petition is allowedin the above terms. No costs. Consequently, connected writ miscellaneouspetitions are closed.

R.B.

Index:- YesInternet:- Yes

To:

1. The Deputy Superintendent ofPolice, Tenkasi, Tirunelveli District.

2. The Inspector of Police,Kadayanallur, Tenkasi Taluk,Tirunelveli District.