IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 15..3..2007 Coram The Honourable Mr.Justice DHARMA RAO ELIPE and The Honourable Mr.Justice K.CHANDRU W.P.Nos.39044, 39060, 39173, 39205 and 39332 of 2002 and WP.MP.Nos.58246,58260,58434 and 58476 of 2002 W.P.No.39044 of 2002 G. Ramanikumar, President, State Legal Cell, Bharathiya Janatha Party, Tamil Nadu. ...Petitioner -vs- 1. State of Tamil Nadu, rep. by Commissioner and Secretary to Govt., Education Department, Fort St. George, Chennai 600 009. 2. Director of School Education, Chennai 600 006. 3. Director of Collegiate Education, Chennai 600 006. 4. Rev.M. Arokiasamy, Arch Bishop of Madurai, President of the United Minorities Forum, Tamilnadu and Pondicherry, K. Pudur, Madurai. 5. Tamilnadu Bishops Council, 156, L.C. Road, Mylapore, Chennai 4. 6. Bishops of Church of South India, Madras Diocese, Chennai 86. 7. Jesuit Institution, rep. by Rev.V. Joseph Xavier, Loyola College, Chennai 34. ...Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.No.39060 of 2002 G. Krishna Stae Joint Secretary, Akhil Bharathiya Vidayarthi Parishad (ABVP) Tamil Nadu Unit, Chennai. .. Petitioner -vs- 1. State of Tamil Nadu, rep. by its Secretary to Govt., Ministry of Education, Fort St. George, Chennai 600 009. 2. Director of Collegiate Education, College Road, DPI Complex, Chennai 600 006. 3. Director of Higher Secondary School Education, College Road, Chennai 600 006. 4. Director of Secondary School Education, College Road, Chennai 600 006. 5. Director of Matriculation School Education, College Road, Chennai 600 006. 6. Directorate Elementary School Education, College Road, Chennai 600 006. .. Respondents W.P.No.39173 of 2002 S.M. Sundaram S/o.K.R. Sundaram Iyer .. Petitioner -vs- State of Tamil Nadu, rep. by its Secretary, Education Department, Fort St. George, Chennai 600 009. .. Respondent https://hcservices.ecourts.gov.in/hcservices/ W.P.No.39205 of 2002 Vinayaghar V. Murali, State Coordinator for Hindu Organisations of Tamil Nadu, 36/13, Thanikachalam Road, T. Nagar, Chennai 600 017. .. Petitioner -vs- State of Tamil Nadu, rep. by its Secretary, Education Department, Fort St. George, Chennai 600 009. .. Respondent W.P.No.39332 of 2002 N. Murthikumar, S/o. Natarajan .. Petitioner -vs- 1. State of Tamil Nadu, rep. by Commissioner and Secretary to Govt., Education Department, Fort St. George, Chennai 600 009. 2. Director of School Education, Chennai 600 006. 3. Director of Collegiate Education, Chennai 600 006. 4. Rev.M. Arokiasamy, Arch Bishop of Madurai, President of the United Minorities Forum, Tamilnadu and Pondicherry, K. Pudur, Madurai. 5. Tamilnadu Bishops Council, 156, L.C. Road, Mylapore, Chennai 4. 6. Bishops of Church of South India, Madras Diocese, Chennai 86. 7. Jesuit Institution, rep. by Rev.V. Joseph Xavier, Loyola College, Chennai 34. https://hcservices.ecourts.gov.in/hcservices/ 8. District Educational Officer, Coimbatore. 9. The Correspndent, G.S.R. Matriculation School, Kavundampalayam, Naickenpalayam P.O. Coimbatore 641 020. .. Respondents Prayer WP NO. 39044/02 Petitions under Article 226 of the Constitution of India praying to issue appropriate writ declaring that the one-day closure of all educational institutions run by the respondents 4 to 7 and other Christian organisations supporting them, either on 24.10.2002 or on any other day, is illegal and unconstitutional, an consequently direct the respondents 1 to 3 and other enforcement agencies to do all that is necessary to give effect to this declaration. WP NO. 39060/02 Writ Petitions filed under Act 226 of the Constitution of India for issuance of a writ of Mandamus directing the Respondents to issue appropriate instructions not to close down the educational institutions (both colleges and schools within the state of Tamil Nadu) in protest against T.N.Prohibition of forcible conversion of Religion Ordinance WP NO. 39173/02 Writ Petitions filed under Act 226 of the Constitution of India for issuance of a writ of Mandamus directing the Respondents to issue a Writ of Mandamus or any other order or direction in the nature of Writ directing the Respondent herein to forthwith prohibit the closure of Educational Institutions run by various minority Communities in the State of Tamilnadu on 24.10.2002 or any other subsequent dates WP NO. 39205/02 Writ Petitions filed under Act 226 of the Constitution of India for issuance of a writ of Mandamus to issue a Writ of Mandamus or any other writ or direction to the respondent directing all Schools and Colleges run by Christian Educational Institutions in Tamil Nadu to refrain from forcing or compelling the Hindu students of the said institutions who do not believe in their agitation on this issue of Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance to participate in the intended fast on 24th instant and other agitations infuture but confine their activities only regarding the Educational needs of the students studying in the said institutions https://hcservices.ecourts.gov.in/hcservices/ WP NO. 39332/02 Writ Petitions filed under Act 226 of the Constitution of India for issuance of a writ of Mandamus to issue a Writ of Mandamus direction in the nature of a Writ directing the respondents to forbear the children from participating in the Procession of the struggle Committee or organisation opposing the ordinance banning conversions and proposed closure of Schools on 24.10.2002 For Petitioner in WP.39044/2002 : Mr.T.V. Krishnamachari For Petitioner in WP.39060/2002 : Mr.K. Kannan For Petitioner in WP.39173/2002 : Mr.K. Vaidayanathan For Petitioner in WP.39205/2002 : Mr.C. Lakshmi Narain For Petitioner in WP.3932/2002 : Mr.N. Murthi Kumar Party-in-Person For Respondents 1 to 3 in WP NO. 39044/02 and WP NOS. 39060/02, 39173, 39233,39173, AND 39225 OF 2002 : Mr.V. Viswanathan, AGP Respondents 4,5 & 6 in WP.39044/2002 : No Appearance Respondent-7 in WP.39044 AND 39332 /2002 : Mr.S.J. Jagadev For Respondent 4 to 6 and 9 in wp no. 39332/02 : No Appearance - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER K.CHANDRU, J. Sometimes, politics makes strange bedfellows. In this batch of five writ petitions, except in one case, four were filed by persons / organisations having same political outlook and are birds of same feathers. 2. The first writ petition (W.P.No.39044 of 2002) is filed by the President of the State legal Cell of the Bharathiya Janatha Party, Tamil Nadu, for a declaration that the closure of all educational institutions run by the Christian minorities in the State on 24.10.2002 as illegal and unconstitutional and consequently, to direct the official respondents, viz., respondents 1 to 3, to do all that is necessary to give effect to the declaration, if any, made by this Court. 3. In support of the writ petition, the petitioner had not produced any authenticated copy of the resolution allegedly made by the respondents 4 to 7 in declaring one day closure of all Christian Minority Educational Institutions in Tamil Nadu. All that he had done was after seeing the newspaper reports, he had sent a telegram, a copy of which is produced before this Court through his Advocate, asking the official respondents to intervene and prevent illegal closure of educational institutions either on 24.10.2002 or on any other date and thereby to exercise their statutory powers. 4. When the writ petition No.39044 of 2002 came up for admission on 23.10.2002. Strangely, on the same day, W.P.No.39060 of 2002 was filed by the State Joint Secretary of the Student Wing of the same political group, viz., Akhil Bharathiya Vidayarthi Parishad, seeking for the same relief. W.P.No.39205 of 2002 was also filed by the State Co-ordinator for Hindu Organisations in Tamil Nadu, that too, on the same day for more or less similar relief. But he has not made any Management of the Christian Minority Educational Schools as a party to the writ petition and rest contented by making the State alone as a party. W.P.No. 39173 of 2002 was filed by one individual claiming to be an industrialist and educationalist with the very same prayer. He has also enclosed a letter dated 20.10.2002 written to the official respondent seeking for prohibition of the closure call given by the Christian Minority Educational Institutions. However, he had also not made anyone of the Management of Christian Minority Educational Schools, who were involved in the protest as a party to the writ petition. Apart from this, a letter dated 18.10.2002 written by a parent from Coimbatore was also treated as a writ petition and posted along with the batch. Though in his letter, he has not made any particular https://hcservices.ecourts.gov.in/hcservices/ respondent and sought for a direction to the Chief Secretary of the Government of Tamil Nadu, the Registry has shown respondents 4 to 9 as parties to the writ petition. 5. At the time of admission of the writ petitions, viz., on 23.10.2002, there was hardly a day left for the closure call given by the Christian Minority Educational Institutions. On behalf of the State, the learned Advocate General produced a letter dated 23.10.2002, which was also extracted by this Court in the order dated 23.10.2002 passed in the Miscellaneous Petition being W.P.M.P.No.58246 of 2002 filed along with the W.P.No.39044 of 2002, which reads thus: "With reference to your letter cited, I am to state that the School Education and Higher Education Departments propose to instruct the concerned education institutions through the respective Heads of Departments that it will not be legal to keep the institutions closed on 24.10.2002 and that appropriate action will be taken to effect cut in the aid payable and also seek explanation for declaring holiday without prior permission." 6. Since the petitioners have pressed into service the legal obligation on the part of the Christian Minority Educational Institutions, attention was drawn to Section 29 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 as well as Section 25 of the Tamil Nadu Private Colleges (Regulation) Act, 1976. A Division Bench of this Court correctly found that those two provisions are not applicable as it is not a case of permanent closure. Further, Rule 77 of the Tamil Nadu Educational Rules was also referred to and it was held that it was not a holiday and it is only a protest. The Court merely observed that no student, who is studying in the Minority Institution, regardless of religion, shall be involved in this kind of protest and they need not be dragged into any kind of controversies either religious or political and they will be spared only for the purpose of developmental activities. Therefore, in the absence of any interim order, the protest of the Christian Minority Educational Institutions took place on 24.10.2002 as announced by them. Subsequently, neither the petitioners filed any affidavit before this Court stating that there was any violation of any provision of law or that the institutions have not kept up the spirit behind the interim order passed by this Court. It was also not brought to the notice of this Court that whether the students belonging to the Non-Christian faith were involved in any form of protest. 7. It was informed to this Court that the Christian Minority Educational Institutions made a substitute working day on 28.10.2002 and thereby prevented any hardship to the students studying in their institutions and also showed their bonafide in not disrupting any https://hcservices.ecourts.gov.in/hcservices/ academic activities. It is in the light of these developments, the present writ petitions have been posted for final hearing. 8. We have heard the learned counsel appearing for the parties and have perused the records. 9. As can be seen, the provocation for the call for a token protest of a day's closure for all Educational Institutions run by the Christian Minority Educational Institutions was the enactment of Tamil Nadu Ordinance No.9/2002, which is called as Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance, 2002. The explanatory statement appended to the Ordinance gives the object of the bringing the Ordinance. This was perceived by the Minority Religious groups as an affront to their religious rights guaranteed under Article 25 of the Constitution of India, which made it as a fundamental right to all persons to have freedom of conscience and the right to freely to profess and propagate religion. As can be seen from the averments made in several affidavits that the writ petitioners were supporters of the Ordinance and were not for in any form of protest against the said Ordinance. Subsequent to the enactment of the Ordinance, there was several newspaper reports written both by protagonists and by antagonists of the Ordinance, which were also filed in the typed set, expressing their views in public. 10. Before going into the merits of the case, what was important was the subsequent development with reference to the Ordinance. The said Ordinance was made into an Act of the legislature by Tamil Nadu Act 56 of 2002 and also it received the assent of the Governor of Tamil Nadu on 02.12.2002 and the same was brought into retrospective effect from 05.10.2002. Subsequently, as any issue of this nature takes political twist and turns, the very authors of the Ordinance and subsequent Act, may be due to strong political opinion, withdrew the said enactment by an Ordinance, which was brought into effect on 18.6.2004. While the authors of the legislation themselves have gone back in continuing the statute, it is the petitioners, who are like 'Casablanca' who stood on a burning deck in order to obey his father's command, are still persisting on going ahead with the present writ petitions and are seeking for an order. 11. Learned counsels appearing for the petitioners also strenuously contended that notwithstanding the withdrawal of the legislation, the Christian Minority Educational Institutions should be told that on no account, they should close down their Educational Institutions as it will affect number of Non-Christian children studying in the said schools. The matter did not rest therein and subsequent to the election to the State Assembly, once again the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu legislature saw the repeal of the said Act by Tamil Nadu Act 10 of 2006, viz., Tamil Nadu Prohibition of Forcible Conversion of Religion (Repeal) Act, 2006 which repealed the Tamil Nadu Act 56 of 2002 and set at rest any kind of doubt about the existence of the said law. 12. This Court therefore suggested that nothing survived in the writ petitions and the petitioners may think of withdrawing the writ petitions. But the learned counsels appearing for the petitioners insisted for a decision of this Court and also made submissions that notwithstanding the fact that the Christian Minority Educational Institutions which called for a token protest by closure of their institutions on 24.10.2002 (subsequently compensating it by working on 28.10.2002), must be told that in future, they should not close down their institutions by way of any protest. When asked about the legal obligation on such institutions, the petitioners were not able to cite any provision of law under which the Government can issue any directions to the Minority Educational Institutions so as to prevent them from registering their protest including by calling for a day's closure as a token form of protest. 13. Mr.T.V.Krishnamachari, learned counsel appearing for the petitioner in the first writ petition, viz., W.P.No.39044 of 2002, brought to the notice of this Court the decision reported in AIR 1977 SC 908 [Rev. Stainislaus v. State of Madhya Pradesh] and stated that the State was well within its powers to promulgate the Ordinance No.9 of 2002 and in the decision cited, the Supreme Court had upheld a similar legislation enacted by the Madhya Pradesh State. 14. The debate on the question 'conversion' was not new to this country. Even in the late 1920's national leaders like Mahatma Gandhi and Dr.B.R. Ambedkar have debated over this issue. Dr. Ambedkar began this discussion by referring to the 'International Fellowship' which was held in 1928. In this fellowship representatives of different faiths met each other. Mahatma Gandhi was also present in this conference. According to Dr Ambedkar, it was Mahatma Gandhi who raised the issue of conversion in relation to the work of Christian missionaries. After this conference Mahatma Gandhi's opposition to the Christian missionaries' preaching and people getting converted to Christianity is well-known. He particularly objected to the spreading of the Christian Gospel among the untouchables. His antagonism to Christian missionaries and the conversion of untouchables to Christianity was based on certain propositions, which according to Dr Ambedkar were enunciated by him in quite unmistakable term. Dr Ambedkar selected several propositions to sum up Mahatma Gandhi's position. The one such proposition was :- https://hcservices.ecourts.gov.in/hcservices/ "I do maintain . . . that the vast masses of Harijans and for that matter, of Indian humanity, cannot understand the presentation of Christianity, and that, generally speaking, conversion, wherever it has taken place, has not been a spiritual act in any sense of the trm. They are conversions of convenience. They (the Harijans) can no more distinguish between the relative merits (words omitted?) than can a cow. Harijans have no mind, no intelligence, no sense of difference between God and no-God." [See Dr. Babasaheb Ambedkar: Writings and Speeches, vol.5, Bombay, Education Department, Government of Maharashtra, 1990 (Page 446]" His final observations in this regard is found in page 450 of the same volume which is as follows: "It is difficult to understand why Mr. Gandhi argues that services rendered by the missionaries are baits or temptations. Why is it not possible to believe that these services by missionaries indicate that service to suffering humanity is for Christian an essential requirement of their religion? ..." "No body will deny to Mr. Gandhi the right to save the Untouchables for Hinduism. But in that case he should have frankly told Missions 'stop your work, we want now to save the Untouchables, and ourselves. Give us a chance.! It is pity that he should not have adopted this honest mode of dealing with the menace of the Missionaries. Whatever anybody may say I have no doubt, all the Untouchables, whether they are converts or not, will argue that Mr. Gandhi has been grossly unjust to Christian Missions. ..." "This attitude of Mr. Gandhi need not deter either the missionaries or the Untouchables. Christianity has come to stay in India and, unless the Hindu in their zeal for nationalism misuse their political, social and economic power to suppress it, will live and grow in numbers and influence for good." 15. As was seen earlier, since the Tamil Nadu legislation is no longer in the statute book, we are not called upon to decide the validity or otherwise of the said legislation and we refused to be drawn into any such theoretical or academic exercise on the said matter. https://hcservices.ecourts.gov.in/hcservices/ 16. Thereafter, the learned counsel brought to the notice of this Court the decision of the Kerala High Court reported in AIR 1997 KERALA 291 [Bharat Kumar K.Palicha and another v. State of Kerala and others] wherein a Full Bench of the Kerala High Court held that no political party has right to call for a bandh and held in paragraph 13 of the judgment, which is as follows: Para 13: "... We cannot also ignore the increasing frequency in the calling, holding and enforcing of the bundhs in the State and the destruction of public and private property. In the face of this reality, we think that when we consider the impact of a bundh on the freedom of a citizen, we are not merely theorising but are only taking note of what happens around us when a bundh is called and a citizen attempts either to defy it or seeks to ignore it. However, it was further held in paragraph 14, which is as follows: Para 14: "... It maybe true that the political parties and organisers may have a right to call for non co- operation or to call for a general strike as a form of protest against what they believe to be either an erroneous policy or exploitation. But when exercise of such a right infracts the fundamental right of another citizen who is equally entitled to exercise his rights, the question is whether the right of the political party extends to right of violating the right of another citizen. ... Moreover, nothing stands in the way of the political parties calling for a general strike or hartal unaccompanied by express or implied threat of violence to enforce it." [Emphasis added] 17. The said decision was taken on appeal to the Supreme Court and the decision of the Supreme Court is reported in AIR 1998 SC 184 [Communist Party of India (M) v. Bharat Kumar and others] where the Supreme Court in paragraph 3 of its judgment, while approving the decision of the Kerala Full Bench, observed as follows: "... We may also observe that the High Court has drawn a very appropriate distinction between a "Bandh" on the one hand and a call for general strike or "Hartal" on the other. We are in agreement with the view taken by the High Court." 18. We do not know as to how these two judgments can support the case of the petitioners. Further, one can take judicial notice that many political parties including that of the petitioners, even after the said judgment, had called for several bandhs and general strikes all over the country on many issues https://hcservices.ecourts.gov.in/hcservices/ which, according to them, had vitally affected the interests of general public. 19. Thereafter, learned counsel appearing for the petitioners drew the attention of this Court to the judgment of the Supreme Court reported in AIR 1987 SC 1109 [Shri Sachidanand Pandey and another v. The State of West Bengal and others] and contended that the writ petitions are maintainable and the Court should grant relief as prayed for by them. But, however, it will be relevant to quote judgment of Justice Khalid, who gave supporting judgment, which is found in paragraph 60 and the same is extracted below: Para 60: "It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and. hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending. help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self imposed restraint on public interest litigants." [Emphasis added] 20. It is interesting to note that the Supreme Court which dealt with a Public Interest Litigation to prohibit the lawyers' strike vide its decision reported in 2003 (2) SCC 45 [Ex-Capt. Harish Uppal v. Union of India and another], while holding that the lawyers have no right to go on strike or to give a call for boycott, the Court finally held in paragraph 35 of the judgment as follows: "It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar." It must be noted that the judgment of the Full Bench of the Kerala High Court, which was subsequently confirmed by the Supreme Court, https://hcservices.ecourts.gov.in/hcservices/ was also referred to with approval in this decision. 21. When that is the case for the lawyers, we do not know as to how there could be a different yardstick for the other sections of the society especially when the Minority Educational Institutions enjoyed the protection under Article 30(1) of the Constitution of India when their right to administer the Educational institutions of their choice has become a fundamental right enshrined in