C.J. Rajan organiser Peoples Watch v. Deputy Superintendent of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30..01..2008CoramThe Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW.P.No. 13681 of 2007andM.P. No. 1 of 2007C.J. RajanorganiserPeoples Watch,No.6, Vallabai Road, Madurai 2.... Petitioner-vs-1.Deputy Superintendent of Police,Mayiladuthurai Sub-Division,Mayiladuthurai.2.Deputy Inspector General of Police,Nagapattinam District.... RespondentsPetition under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorarified Mandamus to quash theorder passed by the 1st respondent in C.No.14/SDOM-III/2007 dated22.3.2007 and direct him to grant permission for the same on anyother subsequent date.For Petitioner : Ms. Sudha RamalingamFor Respondents 1&2: Mr.M. Dhandapani Special Govt. PleaderORDER(Order of the Court was made by K.CHANDRU, J.)The petitioner is the organiser of the People's Watch, a Non-Governmental Organisation, functioning as a Human Rights WatchGroup in the State of Tamil Nadu. The petitioner People's Watchclaims that they are also running a Rehabilitation Centre forTorture Victims (RCTV) and also a movement called Citizens forHuman Rights Movement (CHRM). They are concerned about theincreased encounter killings in the State of Tamil Nadu and they https://hcservices.ecourts.gov.in/hcservices/ have been conducting programmes with reference to preventing theencounter killing by the State police and also to sensitize allconcerned about following the guidelines issued by the NationalHuman Rights Commission (NHRC) on such encounters. 2.As part of their campaign, they wanted to have a publicmeeting on 01.4.2007 at Mayiladuthurai (Nagapattinam District) andthe meeting was to be presided over by the Director of People'sWatch. It was stated that in the meeting, apart from the Directorof People's Watch, the organisers had intended to invite retiredHigh Court Judges, lawyers, journalists, educationalists, humanright activists and political personalities. The place inwhich the meeting was to be held was either in the playground infront of the Office of the RDO or in the Rajan Garden. 3.An application was also made to the first respondent on19.3.2007 by the petitioner. The said request was rejected bythe first respondent vide his order dated 22.3.2007. The reasonsfoundin that order was that by stating that in view of themaintenance of law and order and the likelihood of there being abreach of peace and disturbance to public tranquility inMayiladuthurai Sub-Division in the event of conducting suchmeetings and also in view of the promulgation of Regulatory orderunder Section 30(2) of the Police Act, 1861. It is as againstthe said refusal, the present petition has been filed.4.The Special Government Pleader, who took notice, filed acounter affidavit on behalf of the first respondent justifying theimpugned order. In the counter affidavit, it was stated thatthe playground was a public thoroughfare and that the Rajan Gardenwas under the control of the Sports Authority of India. Theyhave also stated about the death of one Shankar (alias) "ManalmeduShankar", who was killed in an encounter. According to thePolice, he was a known history sheeter and had committed severaloffences. But, however, in paragraph 9 of the counteraffidavit, it was stated by the first respondent as follows:Para 9:"I submit that the Police Authorities have noobjection for the meeting to be conducted at anyplace other than Mayiladuthurai which is pronesensitive in communal and rivalry clash."5.A reply affidavit was also filed by the petitionerrefuting these allegations and it was stated that the interest ofpetitioner group was only to sensitise the people and for the needto preserve human right standards. It was averred that aregulatory order under Section 30(2) of the Police Act, 1861cannot be used to curtail fundamental right to assemble and alsothe freedom to express one's own opinion. The petitioner hadalso disputed the objection regarding the venue selected by the https://hcservices.ecourts.gov.in/hcservices/ petitioner and it was also stated that since the meeting was to beheld on a Sunday evening, there will not be any vehicular trafficand the fact that Mayiladuthurai is vulnerable to communal clashesand gang violence have no bearing on the public meeting which wasto be addressed by human right activists. 6.Heard the arguments of Ms. Sudha Ramalingam, learnedcounsel appearing for the petitioner and Mr.M.Dhandapani, learnedSpecial Government Pleader representing the respondents and haveperused the records.7.When the matter was called on 24.01.2008 and afterhearing some arguments, it was suggested to the respondents toreconsider their decision in refusing permission. The respondentsrelied upon paragraph 9 of the counter affidavit extracted aboveand stated that the petitioners may be advised to choose any otherplace other than Mayiladuthurai. Learned counsel for thepetitioner was advised to consult her client and report to thisCourt as to whether the organisers are willing to choose any othervenue to hold the public meeting and with that view, the matterwas adjourned to 30.01.2008. 8.When the matter was called on 30.01.2008, the firstrespondent was present in the Court and the learned counsel forthe petitioner stated that instead of Mayiladuthurai, which isonly a Divisional Headquarters, they are willing to hold themeeting at Nagapattinam Town, which is a District Headquarters.They also wanted to have the meeting on 23.3.2008 (Sunday) between4 PM and 10 PM and they had chosen a place known as Avurithidal(near bus stand) in Nagapattinam Town. The request made by thepetitioner after taking note of the respondents' objection islaudable. Though the learned Special Government Pleader filed abulk typed set showing the criminal activities of one Shankaralias Manalmedu Shankar, this Court is not concerned with theoriginal background of any person in this case as the subjectmatter posed here is entirely a different issue and does notrevolve around any individual.9.The only question that arises for consideration iswhether the petitioners' have a right to hold a public meeting ona sensitive issue which may not be palatable to the respondentPolice.10.In this context, it is necessary to refer to thejudgment of the Supreme Court in Himat Lal K. Shah v. PoliceCommissioner, Ahmedabad (1973 (1) SCC 227) rendered by aConstitution Bench of the Apex Court, wherein, the Court struckdown Rule 7 of the Rules framed under the Bombay Police Act on theground that Rule, which empowered the Commissioner of Police to https://hcservices.ecourts.gov.in/hcservices/ refuse permission to hold meetings without giving any guidanceunder the Rule and thereby conferring an arbitrary discretion, wasan unreasonable restriction on the freedom of association andfreedom of assembly guaranteed under Article 19 of theConstitution. The Court also held that the word "regulating" inSection 33(1)(o) of the Bombay Police Act would include the powerto prohibit and impose the condition that permission should betaken a few days before the holding of the meeting on a publicstreet. Mathew, J., dissented from the view of the majority andheld that the power to regulate did not include the right toprohibit and the permission sought for holding a meeting ought notbe refused. The majority opinion was that regulation is necessaryto enable citizens to enjoy the various rights in crowded PublicStreets, and that the State can make regulation in aid of theright of the assembly of each citizen and can impose reasonablerestrictions in the interest of public order.11.The Supreme Court also in S. Rangarajan v. P.Jagjivan Ram [1989 (2) SCC 574] held that freedom of speech underArticle 19(1)(a) of the Constitution of India means the right toexpress one's own opinion by word of mouth, printing, picture oris any one manner of ideas made through any and the communicationof ideas made through any medium. Such right, however, was heldto be subject to reasonable restrictions in the larger interest ofthe community and the country as set out in Article 19(2) of theConstitution. Those restrictions are intended to strike aproper balance between the liberty guaranteed, and the socialinterests specified under Article 19(2). The Court emphasisedthat the interest of freedom of expression and social interestcannot be regarded as of equal weight and the court's commitmentto freedom of expression demands that it cannot be suppressedunless the situations created by allowing the freedom are pressingand the community interest is endangered. The anticipateddanger should not be remote, conjectural or farfetched, but shouldhave proximate and direct nexus with the expression. Theexpression of thought should be intrinsically dangerous to thepublic interests. It should be inseparably locked up with theaction contemplated like the equivalent of a "spark in a powderkeg."12.Therefore, it is too late for the respondents to refusepermission to hold a meeting on a matter of public importance.With respect to the respondents' reliance upon Section 30(2) ofthe Police Act, 1861, it can only be said that it enables therespondents to direct the control and conduct of all assembliesand processions on public road or in the public streets orthoroughfares and to prescribe the Rules by which and the times bywhich the processions may pass and Section 30(2) and (3) on whichreliance was placed, is extracted below: https://hcservices.ecourts.gov.in/hcservices/ Sec 30(2):" He may also, on being satisfied that it isintended by any persons or class of persons toconvene or collect an assembly in any such road,street or thoroughfare, or to form a processionwhich would, in the judgment of the Magistrate ofthe district, or of the sub-division of a district,if uncontrolled, be likely to cause a breach of thepeace, require by general or special notice, thatthe persons convening or collecting such assemblyor directing or promoting such procession shallapply for a licence.(3)On such application being made, he may issue alicence, specifying the names of the licensees anddefining the conditions on which alone suchassembly or such procession is to be permitted totake place, and otherwise giving effect to thissection."13.Therefore, the said provision is only a regulatory powerand not a blanket power to strifle any democratic dissent of thecitizens by the Police. 14.While dealing with a similar situation on the powersconferred on the Commissioner of Police under Section 41 of theMadras City Police Act, 1888, this Court (R. Jayasimha Babu, J.)vide judgment in P. Nedumaran v. State of Tamil Nadu and others[1999 (1) L.W. (CRI) 73] defined the scope of the rights ofcitizen and the power of the State to impose reasonablerestriction. The following passages found in paragraphs 15 to18 may be usefully extracted:Para 15:"The rights conferred on the citizens by Article 19of the Constitution are precious rights and are notto be lightly breached or restricted by the Stateor any functionary of the State. Any regulation ofexercise of those rights must be for the purposesspecified in Article 19 of the Constitution itself,and that power must be so exercised as to subservethe larger public good. The power to imposerestrictions is not the power which is availablefor exercise in an arbitrary manner or for thepurpose of promoting the interest of those inpower, or for suppressing dissent Democracy can bemade dynamic an truly alive only when there is freemarket for ideas and discussion and debate is notonly permitted but is encouraged. All expressionof opposing view point cannot be regarded asdangerous to the safety or security of the countryand all expressions which do not find the approval https://hcservices.ecourts.gov.in/hcservices/ of those exercising the power of the State cannotbe regarded as harmful to the State and to thepublic order.Para 16:The power conferred on the Commissioner underSection 41 of the Madras City Police Act issweeping, that power is meant to be exercised withgreat care and caution. The Madras City Police Actis a pre-Constitution enactment, and the powersconferred on the authorities at a time when thecountry was under the colonial regime, and duringthe period when suppression of dissent wasconsidered to be a legitimate policy of the State,cannot be exercised after the enactment of theConstitution in the same manner, as it wasexercised earlier. The Intelligence Report placedbefore the Court shows that the police still havethe attitude which does not seem to recognise thatthe country is a democratic nation, where everycitizen has a right to full and equal participationin the process of Government. No citizen can beregarded as an enemy of the State merely because hehas voiced a view which is not the one favoured bythose in authority.Para 17:The fact that the police are vested with powershould not make them assume that, that power isavailable for exercise in any manner that theyconsider fit. That power is to be exercisedstrictly within the ambit of the provisions of theConstitution, more particularly, the requirementthat any restriction placed on the exercise offundamental rights should be a reasonablerestriction, and the restrictions so placed shouldbe shown to be essential, having regard to thepermissible purpose for which restrictions may beimposed.Para 18:The fact that the petitioner-Association is voicinga view point which may not be popular cannot be ajustification for preventing that point of viewbeing projected."We are in entire agreement with the views expressed therein.15.The proposal made on behalf of the petitioner islaudable and it shows their accommodating spirit in relocating thevenue of the public meeting to another place after taking note ofthe objections raised by the respondents. We are of the viewthat the respondents can have no objection for the present venue,date and time chosen by the petitioner Association for conductinga public meeting. Since the respondents are present in Court and https://hcservices.ecourts.gov.in/hcservices/ they were also informed about the change of the venue made by thepetitioner, it is hereby directed the petitioner need not send anyfresh application and the request recorded in this order can betaken as adequate requisition made by the petitioner.16.In view of the above, the second respondent is herebydirected to permit the petitioner to hold the meeting atAvurithidal (near bus stand) at Nagapattinam Town on 23.3.2008from 4 PM to 10 PM. It is for the respondents to provideadequate protection for the smooth conduct of the meeting. Thewrit petition is disposed of accordingly. However, there will beno order as to costs. Connected Miscellaneous Petition isclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The Deputy Superintendent of Police,Mayiladuthurai Sub-Division,Mayiladuthurai.2.The Deputy Inspector General of Police,Nagapattinam District.1 cc to M/s. Sudha Ramalingam, Advocate, sR. 46381 cc to Government Pleader, Sr. 4299W.P.No. 13681 of 2007 MDR (CO)kk 4/2