Durai Sankar vs Thiru Apoorva Varma

V. Ramasubramanian, J.—The petitioners have come up with the above contempt petitions, alleging gross and willful disobedience of the orders passed by me in a batch of writ petitions in W.P. Nos: 28677 to 28683 of 2014 dated 07.11.2014.

Heard Mr. T.V. Ramanujam learned Senior counsel, Mr.S.Prabakaran and Mr. N.Chandra Sekar learned counsel appearing for the petitioners.

The petitioners in these contempt petitions sought permission from the local police in their respective Districts, to take out a peaceful procession on 09.11.2014 and to hold a Public Meeting thereafter, on the occasion of their Founder''s Day. The applications for permission were rejected outright by the respective authorities either by invoking Section 30(2) of the Police Act or by invoking Section 41A of the Chennai City Police Act. Therefore, the petitioners came up with the aforesaid writ petitions.

After ordering notices in the writ petitions and after the respondents filed their counter affidavits, the writ petitions were allowed by me by a common order dated 07.11.2014. The operative portion of the order dated 07.11.2014 is as follows :

" 29. Moreover, as pointed out earlier, the respondents have relied upon Section 41-A of the Chennai City Police Act and Section 30(2) of the Police Act, 1861, both of which provided only for regulation and not prohibition. Therefore, all these writ petitions are allowed, directing the respondents to grant permissions to the petitioners to take out processions in the routes specified by the respondents and to hold public meetings in the places earmarked by the respondents with such reasonable restrictions as they deem fit and proper. No costs. Consequently, M.P. Nos. 1 to 3 in the respective writ petitions are closed."

What happened thereafter has given cause for the present contempt petitions. It appears that the concerned authorities in the various Districts, in pursuance of the order passed by me, permitted the petitioners to take out processions subject to certain conditions. One of the conditions imposed by the respective authorities was that the processionists shall not come in uniform which resembled the uniform of the Armed Forces of the union or the Police Forces.

However, the processionists assembled in various places, in the uniform that they have always worn for more than eighty years. Taking advantage of the processionists wearing the said uniform, the police appear to have arrested them, taken them to marriage halls and detained them till late evening and then let them off. Therefore, contending that the action of the respondents amounted to gross and willful disobedience of the orders passed by me in the batch of writ petitions, the petitioners have come up with the above contempt petitions.

The main grievance of the petitioners is actually two fold. First is that the objection to the uniform was raised by the respondents even at the time when the writ petitions were heard. Those objections were over ruled by me specifically in paragraph 20 of the order passed by me. Paragraph 20 of my order dated 07.11.2014 reads as follows :

" 20. Arguments were advanced on both sides on the question as to whether the Khaki half-trouser and the white shirt worn by the volunteers of the Rashtriay Swayam Sevak Sangh, resemble the uniform of the armed forces of the Union or the police force. Apart from the fact that no member of the police force today wear half trousers, the question is of no relevance to the cases on hand, since Section 41-A does not deal with the holding of processions but it deals only with drill, training or assembly. It is claimed that the uniform that volunteers wear, was designed way back in 1920s. Therefore, the Respondents appear to have raised a bogey, in the form of such an objection and they have taken recourse to a wrong provision of law. Hence, on a pure and simple question of law, the impugned orders are liable to be set aside."

Therefore, the first contention of the petitioners is that once the objection relating to the uniform had been over ruled, the respondents could not have incorporated a condition which directly went against the tenor of paragraph 20 of my order.

The second objection of the petitioners is that the respondents have misconstrued Section 41A of the Chennai City Police Act to be a provision empowering them to issue prohibitory orders despite the fact that the said provision has been specifically held by me only to be regulatory and not prohibitory. Therefore, the petitioners contend that under the guise of imposing reasonable restrictions they have virtually invoked Section 41A and ensured that the processions were eventually prevented.

I have carefully considered both the objections.

At the outset it should be pointed out that a clear case of willful disobedience of an order of Court can be made out without an iota of doubt only where the operative portion of the order contained something, which is violated by the respondents. I have already extracted the operative portion of the order. In pursuance of the operative portion of the order, the respondents have in fact permitted the petitioners to take out processions.

It is true that in paragraph 20 of my order, I brushed aside the objection of the respondents relating to the uniform worn by the petitioners as a bogey. But it appears that aggrieved by my order, the respondents filed intra Court appeals in Writ Appeal Nos: 1503 and 1524 to 1529 of 2014. The appeals were filed on 12.11.2014 along with stay petitions.

It appears that the learned counsel for the petitioners appeared before the Division Bench and took notice in the writ appeals. However, the Division Bench dismissed the stay petitions by an order dated 18.11.2014.

From the order of the Division Bench, it appears that the Division Bench was aware of the contempt notices issued by the petitioners. The Division Bench had also questioned as to why the respondents did not move the writ appeals immediately.

But I should point out that 07.11.2014 was a Friday. I passed orders on the forenoon of 07.11.2014. It was reported in the press on 08.11.2014 that an attempt was made to make a mention before the Hon''ble First Bench for moving an appeal as an urgent matter. But the request was turned down. 08.11.2014 and 09.11.2014 happened to be Saturday and Sunday respectively. The date of the procession was 09.11.2014. Therefore, there is no way an appeal could have been moved between 07.11.2014 and 09.11.2014 especially after the permission to move an appeal was rejected. In such circumstances, I would choose to give the benefit of doubt to the respondents despite the fact that they have prevented the petitioners from wearing an uniform that they have always worn.

Unfortunately for the petitioners and fortunately for the respondents, the observations made by me in para 20 of the order relating to the uniform worn by RSS Volunteers, was not incorporated in the operative portion of the order. Therefore, if the respondents had misunderstood, bonafide or malafide, the effect of the directions issued by me, it can at the most be termed as something done in bad taste and ingenious method to overreach the order of the Court. But still I would not entertain the contempt petitions for the simple reason that the correctness of the order is in question before a Division Bench.

The second objection of the petitioners is that by misinterpreting Section 41A to be prohibitory in nature, the respondents effectively sabotaged the processions all over the State. This, according to the petitioners, has been done deliberately to prevent the processions.

But I do not agree. The respondents have in fact permitted the processions at various places. There is no way the respondents could have arrested the petitioners or the processionists'', if the processionists had worn any other dress. There is a small distinction between the actual act of preventing a procession and the act of allowing a procession without a particular type of uniform. Therefore, it is not possible at this stage to think that the wearing of the uniform was actually used as a ruse to stop the processions.

In view of the above, I do not propose to entertain the contempt petitions, as a clear and doubtless case of contempt of Court is not made out. At the most what has been made out is an act of bad taste and bad faith on the part of the respondents. Something more is required to attract an action for contempt of Court. Hence, the contempt petitions are dismissed.