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Judgment
Honourable Mr. Justice K. Chandru
All the four cases more or less raise a similar contention namely the petitioner wants to organize a dance programme in connection with the
temple festival in the village. W.P.(MD).No.3768 of 2012 :- In this case the petitioner seeks for a direction to the respondents 2 & 3 to consider
the representation of the petitioner dated 12.03.2012 and to grant permission for conducting a dance and music programme on 29.03.2012 and
30.03.2012 in the light of the Sri.Muthaalamman Temple North Vaanji Amman Temple Thiruvizha at Malaipatti Village, Usilampatti Taluk,
Madurai District. When this writ petition came up on 27.03.2012, notice was taken by the learned Special Government Pleader and thereafter,
two adjournments were given. Only today, the matter came up for final disposal. The subject matter of this writ petition has become infructuous.
But, since the similar issues are raised in the other three writ petitions, they were dealt with together along with this writ petition.
W.P.(MD).No.11090 of 2012 :- In this writ petition, the petitioner seeks for grant of permission to conduct dance & music event on
15.08.2012 on the basis of the representation dated 07.08.2012. In the representation, the petitioner stated that in connection Sri Mandhaiamman
Kovil Festival in K.P.Otthapatti Village, they are going to conduct dance programme on 15.08.2012 at 7.00 pm and they sought for permission
from the Inspector of Police, Chekkanoorani Police Station.
W.P.(MD).No.11125 of 2012 :- In this writ petition, the petitioner seeks for a direction to the 2nd respondent to grant permission for
conducting a dance programme in the style of ''Natchathira Kondattam'' scheduled to be held on 16.08.2012 in connection with the Kodai Vizha
of Arulmigu Devi Shri Mutharamman Thirukkoil, Vijayaramapuram, Sathankulam Taluk, Thoothukudi District. A representation was also sent
seeking for permission to conduct the programme, in connection with the said temple festival which is scheduled to be conducted from 09.08.2012
to 18.08.2012. It is seen that there will be a cinema star function also in the festival.
W.P.(MD).No.11130 of 2012 :- In this writ petition, the petitioner seeks for a direction to the respondent-Police to grant permission to
perform cultural programme by Madurai New Son Kavinaya to be held on 15.08.2012 and Marudai Kavinaya to be held on 18.08.2012 in
connection with the Aadi Thiruvizha at Arulmigu Sree Pathirakaliyamman Thirukovil at Panaiyur, Thoothukudi District. A representation dated
07.08.2012 was also sent by the petitioner stating that there will be a dance & music programme in connection with the temple festival.
In most places ill-clad women gyrating their private parts to the tunes of obscene film songs. In many places there were public protests for such
dances being performed in the place vicinity of the local Mariamman Temple.
It is rather unfortunate that such cases are being filed before this Court day in and day out without there being any legal or enforceable right on
the part of the petitioners to conduct such forms of dances that too in public places. If the petitioners arrange any such programme in a private hall,
there will be scope to decide legal right of such petitioners.
As it was pointed out that there is no right for any private citizens to use public spaces for such performances. Even in cases where a religious
right is claimed, such as procession taking the idol of Ganesha for immersing in the Waterways, this Court has held that the immersion ceremony is
a part of a religious right or recognized religious right but the route in which the procession has to be taken, cannot be dictated by the Organisers.
In this connection, the Supreme Court has emphasized the content of Articles 25 and 26 of the Constitution so as to mean that what was protected
by these Articles is only the integral part of a religion or an essential religious practice. Certainly conducting a dance programme in connection with
the Mariammal Temple Festival is not an essential part of Hindu religion.
In the present cases, the petitioners are not claiming that they have been prevented either from conducting the Temple festival or they were
prevented from participating in the said Festival. It is during the festival, the petitioners wanted to organize dance programmes for reasons best
known to them. The petitioners do not have any religious right guaranteed by the State or a public right from Municipal laws to exhibit such dances
in public places.
First of all the Writ Petitions are filed only on an apprehension that they may be prevented from organizing such dances in the Village. But on a
mere apprehension, no Writ Petition will lie. Assuming that the respondents issue specific orders prohibiting them from their organizing what was
lawfully available to them, there is time enough for this court to consider reviewing such orders. Even if any criminal cases are launched against
them under obscenity in the penal code, the trial Courts will take care of such prosecution, if they were otherwise legal.
The circumstances under which a writ in the nature of mandamus can be issued came to be considered by the Supreme Court in several
decisions. It is relevant to cite a few decisions which will have a bearing on the present case. In Director of Settlements, Andhra Pradesh and
Others Vs. M.R. Apparao and Another, , the Supreme Court set out the scope and the manner of exercise of power under Article 226 of the
Constitution and in paragraph 17, it was observed as follows:-
Coming to the third question, which is more important from the point of consideration of the High Court''s power for issuance of mandamus, it
appears that the Constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the
Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental
rights as well as non- fundamental or ordinary legal rights, which may come within the expression ""for any other purpose"". The powers of the High
Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised
lines and subject to certain self-imposed limitations. The expression ""for any other purpose"" in Article 226, makes the jurisdiction of the High
Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for
exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal
right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and
performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus.
Mandamus"" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or
person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him
or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is
available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a
statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that
he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the
date of the petition (Kalyan Singh v. State of U.P.). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a
statute, common law or by rules or orders having the force of law.
Subsequently, in Union of India (UOI) and Others Vs. C. Krishna Reddy, the Supreme Court held that it is only in case of failure on the part
of an Office to discharge his statutory obligation, a direction will issue and there must be a legal duty imposed on the officer and the aggrieved party
must have a legal right under the statute to enforce performance and in paragraph 13, it was observed as follows:-
It is well settled by a catena of decisions of this Court that a writ of mandamus can be granted only in a case where there is a statutory duty
imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the
writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions
within the limit of their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that
there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. [See Bihar
Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, AIR para 15, Lekhraj Sathramdas Lalvani v. N.M. Shah, Dy. Custodian cum
Managing Officer and Umakant Saran (Dr.) v. State of Bihar.]
The Supreme Court held that unless there is subsisting right and enforceable in a court of law and corresponding legal duty on the part of the
Government, no writ will lie and any direction can be issued only in consonance with law and not in violation of statutory provisions, vide its
judgment in State of U.P. and Another Vs. U.P. Rajya Khanij Vikas Nigam S.S. and Others, and in paragraphs 45 and 46, it was observed as
follows:
...The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right
and enforceable in a court of law. There must be corresponding legal duty on the part of the respondent Corporation or the Government which
required the Corporation or the Government ""to do that which a statute required it to do"". No such right of absorption has been shown by the
petitioners. Nor could any such corresponding duty of the respondents be shown to the High Court by the employees.
It is well settled that a court of law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and
not in violation of statutory provisions.
However, the petitioners brought to the notice of this Court one such order passed by this Court in W.P.No.5463 of 2012. In paragraph
No.7, this Court observed as follows:
Following the above said orders, the 2nd respondent is hereby directed to grant permission to the petitioner by imposing specific condition that
obscene dances and double meaning conversations will not be permitted. It is also made clear that if any condition is violated by performing dance
or song in an obscene manner and with double meaning conversations, it is open to the 2nd respondent to proceed against the persons responsible
for conducting the dance programme in accordance with law. The 2nd respondent is directed to pass orders permitting the petitioner to conduct
dance programme within permissible time, forthwith.
(Emphasis supplied)
A perusal of the said order does not show that the directions were given on any legal principles. It was only a direction that the police should
permit them with conditions that the Organisers shall not allow any obscene dances or songs, which will have double meaning. Such a direction can
never be given to the police. The police cannot act like censor Officials. Even assuming that such conditions are imposed, there is no guarantee that
the conditions will be obeyed by the organisers. In place where there will be large gathering of the people, if the police stops such dances, there
will be likelihood of public commotion. Unless the petitioners spell out their design in organising such festival, this Court is not inclined to grant any
such order including following one order produced before this Court. None of the petitioners have claimed that they were greet patrons of Indian
Art forms.
It must be noted that deity Mariamman is worshipped in a female form. During the celebration of the festival, the petitioners cannot be allowed
to have indecent portrayal of women through such dances which are the popular lingo called Record dances or otherwise known as Cabaret
dance. Portrayal of women in an indecent fashion itself is an offence under the provisions of the Indecent Representation of Women (Prohibition)
Act, 1981. This Court cannot be a party for indulging in such illegal acts by the petitioners. The long arm of the Court cannot be extended to
denigrate the culture during the festival. This Court is not inclined to entertain the Writ Petitions. Hence, all the Writ Petitions stand dismissed. No
costs. Consequently, connected Miscellaneous Petition is closed.