C. Sakthivel vs The Commissioner of Police

V. Dhanapalan, J.—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.

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 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.

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.

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.

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 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 S. Rangarajan Vs. P. Jagjevan Ram and Others, .

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.

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.

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 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.

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 v. State of Tamil Nadu and Ors.

The power conferred on the Commissioner u/s 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.

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 so placed should be shown to be

essential, having regard to the permissible purpose for which restrictions may be imposed.

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. u/s 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 Adhirai M.M. Ibrahim Vs. The Commissioner of Police,

The following observations in the order of the Division Bench in paragraphs 11 and 16 in Rama Muthuramalingam, State Propaganda

Committee Member Vs. The Deputy Superintendent of Police and Others, , are sought to be conveniently ignored by the respondents, while

placing reliance on the said judgment:

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 v. Union of India 1994 (6) SCC 651; Om Kumar v. Union of India 2001 (2) SCC 386, etc.

In our opinion, the administrative authorities must be given freedom to do experimentations in exercising powers, provided of course they do

not transgress the legal limits or act arbitrarily,'' (Emphasis supplied)

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 v. The

Superintendent of Police and Ors.:

In this context, it is necessary to refer the judgment of the Supreme Court in Himat Lal K. Shah Vs. Commissioner of Police, Ahmedabad and

Another, 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.

Further, the Supreme Court also in S. Rangarajan Vs. P. Jagjevan Ram and Others, 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, 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 and Private Properties v. State of A.P.

and Ors.

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.

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 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:

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 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.

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.

I have heard the learned Counsel on either side and perused the material documents and also the various decisions relied upon.

It is seen that the petitioner is the District Secretary of Bahujan Samaj Party, North Chennai. It is claimed by him that his 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.

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.

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 unlawful association under

the Unlawful Activities (Prevention) Act, 1967. This Court held that the power conferred on the Commissioner u/s 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 so placed should be shown to be essential, having

regard to the permissible purpose for which restrictions may be imposed. This Court, while analysing the case, held that the meeting which the

petitioner had wanted to hold was to have been held on the 19th January, 1997, well over a year ago, and the authorities ought not to have refused

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 Sec. 41 of the Madras City Police Act, the police have 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 freedom of speech, expression and assembly.

To circumvent the above decisions, the learned Government Pleader consistently placed a Division Bench decision of this Court in Rama

Muthuramalingam, cited above, pointing out that public order is 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 never be forgotten that 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. Judicial restraint is consistent with and complementary to

the balance of power among the three independent branches of the State.

I have given due consideration to the above Division Bench judgment. It is persistently placed before this Court that after the above decision of

the Division Bench, a learned single judge, considering a matter pertaining to a request for organizing Dharna in front of Government Guest House

to protest against the action of Secretary and Correspondent of a Society, in the case of Adhirai M.M. Ibrahim, cited above, while referring to the

above Division Bench decision in para 33, allowed the Writ Petitions, holding that 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. The learned single Judge also

held therein that 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, costs should have been awarded, but he refrained from doing so with the hope that the police would not act further in the

same manner.

In Destruction of Public and Private Properties v. State of A.P. CDJ 2009 SC 752, referred to above, the Supreme Court considered the two

reports submitted one by Justice K.T. Thomas and the other by F.S. Nariman. In para 20 of the judgment, it was pointed out that ""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 parties concerned, 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.

While dealing with a similar situation, a learned single Judge of this Court in a recent decision in K.T. Patchaimal, cited above, in view of the

binding legal precedent set out by the Supreme Court, allowed the Writ Petition and set aside the order passed by the respondent, directing the

respondent to accord permission to conduct demonstration on the date requested or on any future date.

It is true, in the instant case, the demonstration sought to be made by the petitioner is against the administrative action of the State authorities in

suspending an I.A.S. Officer, for furnishing alleged community certificate. The Constitution specifically mandates that no authority can prohibit a

democratic activity, unless it is prohibited under Article 19(2) and such law imposes a reasonable restriction on the exercise of the right conferred

in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or

in relation to contempt of court, defamation or incitement to an offence. When such a prohibition is not warranted, the authorities have no manner

of right to deny or deprive any democratic process.

Law is well settled, as pronounced by the Supreme Court as well as this Court, that reasonable restrictions for the purpose mentioned in

Article 19(2) alone can be the reasons to refuse such a permission. A circumspection and clear analysis of the case on hand would not give any

such impression for this Court that the demonstration contemplated by the petitioner is against any particular administrative function or otherwise,

but, instead, they aim to protest against the action of the Government. If such permission is granted, it is always open for the authorities to regulate

the same and also anything illegal being done and they can have every right to proceed against the perpetrators.

The matter with regard to community certificate was dealt with by the Supreme Court in S. Rangarajan''s case, cited supra, over the exhibition

of a particular film. The Apex Court, after going through the matter in its entirety, had ruled in paragraph 53 thus:

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.

The above ruling of the Supreme Court is a binding precedent and it is the law laid down by it.

In view of my discussion in the foregoing paragraphs and on analysing the various pleadings and contentions put forth by the learned Counsel

on either side, I am of the considered opinion that the impugned order of the respondent cannot be sustained. Accordingly, it is set aside. The

respondent, taking into account a fresh request, if any made by the petitioner to conduct demonstration on any future date in the place sought for, is

directed to accord permission. The respondent is at liberty to regulate the demonstration by deputing proper police officers to be present at the

meeting. If, at the meeting, the police officers find anything illegal being done, it is open for them to take action against the persons concerned as

may be considered necessary in the circumstances.

With the above direction and observations, this Writ Petition is allowed. No costs.