IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 23-08-2010 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.17016 of 2010 C.Sakthivel ... Petitioner -vs- The Commissioner of Police, Commissioner Office, Egmore, Chennai-600 008. ... Respondent Petition under Article 226 of the Constitution of India, praying for issuance of a certiorarified mandamus. For petitioner : Mr.P.Vijendran For respondent : Mr.N.Senthil Kumar, Addl.Govt.Pleader. O R D E R This Writ Petition has been filed praying for issuance of a writ of certiorarified mandamus, to call for the records from the respondent pertaining to the impugned proceedings No.1605/TP2/2010-1 dated 28.07.2010, quash the same, and consequently direct the respondent to grant permission to the petitioner to convene demonstration on 30.07.2010 before the Memorial Hall, Chennai. 2. According to the petitioner, he is the District Secretary of Bahujan Samaj Party, North Chennai; the organisation has been functioning under the Indian Constitution all over India; the Party has 21 MPs. in Lok Sabha and 17 MPs. in Rajya Sabha; it is the third major political party in Indian continent; the Party is recognised by the Election Commission of India as a National Party under the Representation of the People's Act,1951; it has been continuously fighting for socially underprivileged and marginalized people and scheduled caste and scheduled tribes through constitutional means and within the purview of established law; apart from that, the party is democratically fighting against social evils, illegal activities of officials and general public, general clauses etc.; they have decided to convene a demonstration against the https://hcservices.ecourts.gov.in/hcservices/ suspension of C.Uma Shankar, IAS Officer, on the reasons that he brought cremation sheds in the year 1995 when he was working as Additional Collector and Project Officer of District Rural Development Agency at Madurai and he has introduced e-Governance in the District Administration of Thiruvarur when he was working as District Collector between the year 1999 and 2001, which district was the first e-District in India. 3. The further case of the petitioner is that he gave a letter to the respondent on 24.07.2010 and sought for permission to convene the protest on 30.07.2010 between 11.00 a.m. and 2.00 p.m. in front of Memorial Hall, which is the scheduled place for staging demonstration by all, for which the respondent issued a show cause notice through the proceedings No.1605/T.P.2/2010, dated 26.07.2010 to him and directed him to appear before the respondent either directly or through his counsel; accordingly, his counsel met the respondent on 28.07.2010 at 06.00 p.m. and thereafter the respondent issued the impugned proceedings, denying permission. Hence, this Writ Petition. 4. Respondent has filed a counter, stating that the petitioner has sought permission to hold a demonstration on 28.07.2010 at about 11.a.m.; on receipt of the representation, a show cause notice was given to him on 26.07.2010 vide Proc.No.1605/TP2/2010, for which the petitioner gave a reply through his advocate vide notice dated 28.07.2010, explaining the reasons for conducting the demonstration; after perusing the explanation, the rejection order was passed on 28.07.2010 vide No.1605/TP2/2010-1; the said demonstration was against the action taken by the Government against one Uma Shankar, I.A.S., for furnishing false community certificate; the impugned rejection order was passed on the ground that the very same matter is to be adjudicated before the competent court and the petitioner has nothing to do with the agitation; condemning the administrative action against the individual will create unrest and it will affect the administrative functioning in initiating administrative actions; the petitioner's grievance to ventilate by way of agitation is only an indirect threat to the Government officials who initiate disciplinary proceedings against the erring delinquent officer and that the petitioner's claim that he is having a fundamental right to conduct agitation and demonstration as enumerated under the Constitution is subject to reasonable restriction and therefore the Writ Petition is liable to be dismissed. 5. The foremost contention of the learned counsel for the petitioner is that no authority can prohibit a democratic activity unless it is specifically prohibited under Article 19 (2) of the Constitution of India and such law imposes a reasonable restriction on the exercise of the right conferred in the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or https://hcservices.ecourts.gov.in/hcservices/ in relation to contempt of court, defamation or incitement to an offence. He would further contend that permission to convene a demonstration on 30.07.2010 was rejected on the ground that the petitioner did not have any right to determine whether the charge alleged against a public servant is true or false and taking into consideration the tranquility problem. He would also submit that permission to conduct agitation is not concerned with a particular officer and the petitioner is only to protest against the action of the Government and not for supporting any individual. In support of his submissions, the learned counsel has relied upon the following : (i) A decision of the Supreme Court reported in (1989) 2 SCC 574 in the case of S.Rangarjan vs. P.Jagjivan Ram and others : "8. The framework of our Constitution differs from the First Amendment to the U.S. Constitution. Article 19 (1)(a) of our Constitution guarantees to all citizens the right to freedom of speech and expression. The freedom of expression means the right to express one's opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish opinion. The communication of ideas could be made through any medium, newspaper, magazine or movie. But this right is subject to reasonable restrictions on grounds set out under Article 19 (2) of the Constitution. The reasonable limitations can be put in the interest of sovereignty 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. 36. The democracy is a government by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. The democracy can neither work nor prosper unless people go out to share their views. The truth is that public discussion on issues relating to administration has positive value. 51. We are amused yet troubled by the stand taken by the State Government with regard to the firm which has received the National award. We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration https://hcservices.ecourts.gov.in/hcservices/ and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is his obligatory duty to prevent it and protect the freedom of expression. 53. We end here as we began on this topic. 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." (ii) A decision of this Court reported in 1999 (1) L.W. (Crl.) 73 in the case of P.Nedumaran vs. State of Tamil Nadu and others : "16. The power conferred on the Commissioner under Section 41 of the Madras City Police Act is sweeping, that power is meant to be exercised with great care 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 was under the colonial regime, and during the period when suppression of dissent was considered to be a legitimate policy of the State, cannot be exercised after the enactment of the Constitution in the same manner, as it was exercised earlier. The Intelligence Report placed before the Court shows that the police still have the attitude which does not seem to recognise that the country is a democratic nation, where every citizen has a right to full and equal participation in the process of Government. No citizen can be regarded as an enemy of the State merely because he has voiced a view which is not the one favoured by those in authority. 17. The fact that the police are vested with power should not make them assume that, that power is available for exercise in any manner that they consider fit. That power is to be exercised strictly within the ambit of the provisions of the Constitution, more particularly, the requirement that any restriction placed on the exercise of fundamental rights should be a reasonable restriction, and https://hcservices.ecourts.gov.in/hcservices/ the restrictions so placed should be shown to be essential, having regard to the permissible purpose for which restrictions may be imposed. 19. The meeting which the petitioner had wanted to hold was to have been held on the 19th January, 1997, well over a year ago. If the petitioner were to make a fresh application for holding a meeting, the authorities ought not to refuse permission mechanically. They should be in a position to satisfy the Court that such refusal falls strictly within the ambit of the permissible grounds for restricting the exercise of fundamental rights under Article 19 of the Constitution. A mere apprehension that some disturbance may be caused in the meeting place would not be sufficient. Under Section 41 of the Madras City Police Act, the police have the power to depute one or more police officers to be present at the meeting. If, at the meeting, such police officers were to find that anything illegal was being done, it would be open to them to take such further action as may be considered necessary in the circumstances. A blanket order refusing to permit the meeting to be held is not the method of relating the exercise of fundamental rights of free speech, expression and assembly." (iii) A judgment of this court reported in 2005 (3) CTC 260 in the case of Adhirai M.M.Ibrahim vs. The Commissioner of Police, Chennai City, Chennai : "33. The following observations in the order of the Division Bench in paragraphs 11 and 16 in Rama Muthuramalingam vs. Deputy Superintendent of Police, Mannargudi, 2004 (5) CTC 554, are sought to be conveniently ignored by the respondents, while placing reliance on the said judgment : '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 ray in rare and exceptional cases, where the Wednesbury principle applies, that the court should interfere, vide Tata Cellular vs. Union of India, 1994 (6) SCC 651; Om Kumar vs. Union of India, 2001 (2) SCC 386, etc. 16. In our opinion, the administrative authorities must be given freedom to do experimentations in exercising powers, provided of https://hcservices.ecourts.gov.in/hcservices/ course they do not transgress the legal limits or act arbitrarily, ' (Emphasis supplied) 36. With the result, I am inclined to set aside the two impugned orders under challenge in both the writ petitions. The petitioners are at liberty to apply afresh and the respondents shall confine only to the strict limitations contained under Article 19(2) of the Constitution and not to act arbitrarily. In view of the fact that in both cases the refusal to permit the petitioners to hold the meeting is solely based on frivolous, callous and arbitrary reasons, I would have awarded heavy costs. I refrain from doing so with the hope that the police would not act further in the same manner." (iv) An unreported judgment of this Court in W.P.(MD) No.7361 of 2008, dated 19.08.2008, in the case of K.T.Patchaimal vs. The Superintendent of Police and others : "14. In this context, it is necessary to refer the judgment of the Supreme Court in Himat Lal K.Shah vs. Police Commissioner, Ahmedabad AIR 1973 SC 87 : 1973 (1) SCC 227 rendered by a Constitution Bench of the Apex Court, wherein, the Court struck down Rule 7 of the Rules framed under the Bombay Police Act on the ground that Rule, which empowered the Commissioner of Police to refuse permission to hold meetings without giving any guidance under the Rule and thereby conferring an arbitrary discretion, was an unreasonable restriction on the freedom of assembly guaranteed under Article 19 of the Constitution. The Court also held that the work "regulating" in Section 33(1)(o) of the Bombay Police Act would include the power to prohibit and impose the condition that permission should be taken a few days before the holding of the meeting on a public street. Mathew, J., dissented from the view of the majority and held that the power to regulate did not include the right to prohibit and the permission sought for holding a meeting ought not be refused. The majority opinion was that regulation is necessary to enable citizens to enjoy the various rights in crowded Public streets, and that the State can make regulation in aid of the right of the assemble of each citizen and can impose reasonable restrictions in the interest of public order. 15. Further, the Supreme Court also in S.Rangarajan vs. P.Jagjivan Ram (1989) 2 SCC 574 : (1990) 1 MLJ 17 held that freedom of speech under Article 19(1)(a) of the Constitution of India means the right to express one's own opinion by word of mouth, printing, picture or is any one manner of ideas made through any medium. Such right, https://hcservices.ecourts.gov.in/hcservices/ however, was held to be subject to reasonable restrictions in the larger interest of the community and the country as set out in Article 19(2) of the Constitution. Those restrictions are intended to strike a proper balance between the liberty guaranteed, and the social interests specified under Article 19(2). The court emphasised that the interest of freedom of expression and social interest cannot be regarded as of equal weight and the court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched, but should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg." (v) A decision of the Supreme Court reported in CDJ 2009 SC 752 in the case of Destruction of Public & Private Properties vs. State of A.P. & others : "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 6. On the other hand, learned Government Pleader appearing for the respondent would submit that the impugned order, rejecting grant of permission, was passed considering the fact that the demonstration in question was against the action taken by the https://hcservices.ecourts.gov.in/hcservices/ Government against Uma Shankar, I.A.S., for furnishing false community certificate and also in view of the fact that the very same matter is to be adjudicated before the competent court and the petitioner has nothing to do in the form of agitation, as the action of the Government is only administrative in nature against the official concerned and if the agitation is allowed, it will affect the administrative functioning and create unrest and the action of the petitioner is an indirect threat to the Government officials, who initiate disciplinary proceedings. He would further submit that maintenance of law and order is purely an executive function and therefore it is not for this Court to interfere with the matter. He relied upon a Division Bench decision of this Court in Rama Muthuramalingam v. The Deputy Superintendent of Police, 2004 Writ L.R.865, in which it has been held as under : "35. 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...." "41. It must never be forgotten that the administrative authorities have wide experience in administrative matters. No court should therefore strike down an administrative decision solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than the executive on administrative matters, because he can never be justifiably certain that he is right. Judicial humility should therefore prevail over judicial activism in this respect." "42. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference by the judiciary." 7. I have heard the learned counsel on either side and perused the material documents and also the various decisions relied upon. 8. It is seen that the petitioner is the District Secretary of Bahujan Samaj Party, North Chennai. It is claimed by him that his https://hcservices.ecourts.gov.in/hcservices/ is a major political party in Indian continent and it is fighting for socially underprivileged and marginalized people through constitutional means and within the purview of established law. The petitioner also claims that the party is democratically fighting against social evils, concerns of the public, and conducting agitations through various methods viz., rally, fasting, dharna, public meeting etc. The petitioner gave a letter to the respondent on 24.07.2010 and sought for permission to convene the protest on 30.07.2010 against the action of the Government in respect of suspension of C.Uma Shankar, I.A.S., between 11.00 a.m. and 2.00 p.m. in front of Memorial Hall, which is the scheduled place for staging demonstration by all. A show cause notice was issued to the petitioner by the respondent, requesting to appear, for which the petitioner gave a reply on 28.07.2010. Thereafter, the petitioner met the respondent in person along with his counsel. However, permission to conduct the agitation was denied by the respondent, by passing the impugned order, dated 28.07.2010. Therefore, the petitioner has challenged the impugned order on the ground that it is in violation of Article 19 (1) (a) of the Constitution. The petitioner has specifically contended that the respondent ought to have followed Section 41 of the Madras City Police Act,1988, and the respondent has power to regulate the meetings, but not to refuse the permission of meeting. 9. In the case of S.Rangarajan v. P.Jagjivan Ram, cited supra, the Supreme Court had held that the democracy is a government by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people’s participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. The democracy can neither work nor prosper unless people go out to share their views. The truth is that public discussion on issues relating to administration has positive value. The Supreme Court further held that there must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest. Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression. 10. Also, this Court dealt with a similar matter in the case of P.Nedumaran, cited above. In the said case, the stand of the State was that the petitioner was persistently extending support for an unlawful association viz., LTTE, which had been declared to be an https://hcservices.ecourts.gov.in/hcservices/ unlawful association under the Unlawful Activities (Prevention) Act,1967. This Court held that the power conferred on the Commissioner under Section 41 of the Madras City Police Act is sweeping and that power is meant to be exercised with great care 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 was under the colonial regime, and during the period when suppression of dissent was considered to be a legitimate policy of the State, cannot be exercised after the enactment of the Constitution in the same manner, as it was exercised earlier. The Intelligent Report placed before the Court shows that the police still have the attitude which does not seem to recognise that the country is a democratic nation, where every citizen has a right to full and equal participation in the process of Government. No citizen can be regarded as an enemy of the State merely because he has voiced a view which is not the one favoured by those in authority. The fact that the police are vested with power should not make them assume that, that power is available for exercise in any manner that they consider fit. That power is to be exercised strictly within the ambit of the provisions of the Constitution, more particularly, the requirement that any restriction placed on the exercise of fundamental rights should be a reasonable restriction, and the restrictions