Madras High Court
S.Raja Desingu vs The State Of Tamil Nadu on 16 October, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.10.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.P. Nos.29039, 29323, 29076, 29312, 29255, 29464, 29373, 29326,
29560, 29564, 29544, 29547, 29553, 29382, 29384, 29364, 29605, 29697,
29666, 29566, 29559, 29619, 29732, 29747, 29749, 29753, 29768,
29771,29776, 29778 , 29762, 29905 & 29906 of 2023
and
W.M.P.Nos.28957, 28626, 28935, 28865, 29081, 29004, 28961, 29198,
29201, 29173, 29177, 29188, 29011, 29013, 29238, 29305, 29666, 29274,
29203, 293373, 29377 & 29529 of 2023
In W.P.No.29039 of 2023
S.Raja Desingu ... Petitioner
Vs.
1.The State of Tamil Nadu
Rep by its Secretary,
Home Department,
Fort St. George,
Chennai – 600 009.
2. The Director General of Police,
Post Box No.601, Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.
3. The Superintendent of Police,
Neethimedu, Salem – 636 002.
4. The Inspector of Police,
Vazhapady, Salem – 636 115. ...Respondents
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PRAYER: Writ Petition is filed under Article 226 of Constitution of India,
pleased to issue a Writ of Mandamus, directing the respondents herein to
permit the members of Rashtriya Swayam Sevak Sangh ( RSS) to conduct
the procession (Route March) wearing their Uniform (Dark olive brown
trousers, while shirt, cap, belt, black shoes) lead by a Musical Band from
near Vazhappady bus stand towards Cuddalore Road to Vazhappady Bus
Stand towards Cuddalore Road (Via Sadiayappa Gounder Street,
Thammampatty Road, Nallathambi Gounder Street, Vathi Padiayatchi Street,
Ayya Gounder Street, Paruthi mandi) on 29.10.2023 between 04.00.p.m., and
8.00.p.m., and conduct a public meeting thereof pursuant to their
representation to the 2nd to 4th respondents dated 20.09.2023.
For Petitioner : Mr.G.Rajagopalan, (Senior Counsel)
For R1 : Mr. R.Shanmuga Sundaram,
(Advocate General)
Assisted by Mr.S.Santhosh
Government Advocate (Crl. Side) and
Ms.Shakeena
For R2 to R4 : Mr. Hasan Mohammed Jinnah
State Public Prosecutor
Assisted by Mr.Udhaya Kumar
Government Advocate (Crl.Side) and
Ms. J.R.Archana
***
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COMMONORDER
These batch of Writ Petitions seeking Mandamus filed by the
representatives of Rashtriya Swayamsevak Sangh (hereinafter referred as:
“RSS”).
2. Writ Petitioners are forced to come to the Court seeking Mandamus
since their request to grant permission to take rally not granted. The reason
for filing these Writ Petitions is, last year their request to take rally was
rejected at the eleventh hour. Challenging the rejection order, they
approached this Court filing Writ Petition in W.P.No.24540 of 2022 etc.
batch., The learned Single Judge permitted the Organisers of RSS to conduct
rally on certain conditions. The State filed a Review Application before the
learned Single Judge seeking leave to review the order dated 22.09.2022
passed in W.P.No.24540 of 2022 etc., The said Review Application was
dismissed on 02.11.2022. Thereafter, for non-compliance of the order. Writ
Petitioners initiated contempt proceedings. In the said contempt proceedings,
the order passed earlier was partly modified.
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3. The modified order of the Learned Single Judge dated 22.09.2022
passed after initiation of the Court proceedings reads as below:-
“9. Therefore, this Court is inclined to grant
permission to conduct procession and public meeting on
06.11.2022 on the following conditions:
i. The procession and public meetings should be
conducted in a compounded premises such as Ground or
Stadium. It is made clear that while proceeding to conduct
procession and public meeting, the participants shall go by
walk or by their respective vehicles without causing any
hindrance to the general public and traffic.
ii. During the program, nobody shall either sing
songs or speak ill on any individuals, any caste, religion,
etc.,
iii. Those who participate in the program shall not
for any reason talk or express anything in favour of
organizations banned by Government of India. They should
also not indulge in any act disturbing the sovereignty and
integrity of our country.
iv. The program should be conducted without
causing any hindrance to public or traffic.
v. The participants shall not bring any stick, lathi or
weapon that may cause injury to any one.
vi. The organizer(s) shall make adequate
arrangements for drinking water and proper First
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Aid/Ambulance/Mobile Toilets/CCTV Cameras/Fire
Fighting equipments etc., in consultation with the
Police/Civic/Local Bodies as directed by the police.
vii. The organizer(s) shall keep sufficient volunteers
to help the police for regulation of traffic and the
participants.
viii. Only box type speakers should be used and
output of the speakers should not exceed 15 watts~ad
within a radius of 30 meters only. Cone Speakers should
not be used at any cost.
ix. In the procession, the processionists shall not by
any manner offend the sentiments of any religious,
linguistics, cultural and other groups
x. An undertaking to reimburse the cost for any
damage that may occur enroute to any public/private
property and an undertaking to bear the
compensation/replacement costs as well, if are to be
awarded to any other institution/person, who may apply for
the same.
xi. If there is violation of any one of the conditions
imposed, the concerned police officer is at liberty to take
necessary action, as per law.”
4. Aggrieved by the modification of the earlier order, the Writ
Petitioners challenged the modified order through an Intra Court Appeal. It
was taken up in Letters Patent Appeal Nos.6 to 50 of 2022 by the Division
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Bench of this Court headed by Justice R.Mahadevan and Justice Mohammed
Shaffiq. After considering the right of the petitioners to conduct the rally and
the power of the State to restrict the right and the scope of the contempt
proceedings etc., the Division Bench answered in negative to the question
whether an order passed in the writ petitions can be altered so as to modify
its fulcrum in a contempt proceedings. The Division Bench of this Court,
after discussing the case law at length finally concluded as follows:-
“32.Therefore, in the given factual matrix and
applying the aforesaid legal proposition, we are of the
view that the State authorities must act in a manner to
uphold the fundamental right to freedom of speech,
expression and assembly as regarded one of the most
sacrosanct and inviolable rights envisaged in our
Constitution. The State's approach towards citizens'
right can never be adversarial in a welfare State and it
must be considered for granting permission for
peaceful rallies, protest, processions or meeting so as
to maintain a healthy democracy where the constitution
reigns supreme and the fundamental rights of citizens
are placed at a lofty pedestal.
33. In the result, the order dated 04.11.2022
passed in the contempt petitions, which is under
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challange in the present LPAs, is set aside, and the
order dated 22.09.2022 passed in the writ petitions
stand restored and would be enforceable. As the dates
on which the appellants wanted to conduct the route-
march, have passed, it is only appropriate that a
direction be issued in this regard. Accordingly, the
appellants are directed to approach the State
authorities with three different dates of their choice for
the purpose of holding the route-march/peaceful
procession and the State authorities are directed to
grant permission to the appellants on one of the chosen
dates out of the three. The organization shall ensure
that strict discipline is followed at their end and that
there is no provocation or incitement on their part. The
State on the other hand has to take adequate safety
measures and make traffic arrangements to ensure that
the procession and the meeting shall go on peacefully.”
5. The State through its Home Secretary went to Hon'ble Supreme
Court and filed S.L.P with delay petition challenging the order passed by the
Division Bench of this Court. The Hon'ble Supreme Court condoned the
delay and entertained the Special Leave Petition. After hearing the State/the
petitioner affirmed the order passed by this Court on 22.09.2022. The
operative portion of the Order of the Hon'ble Supreme Court in its judgement
dated 11.04.2023, for easy reference, is extracted below:-
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“11. In view of the above order passed by the
Hon'ble Supreme Court of India as well as various
orders passed by this Court, it would be appropriate to
direct the respondents to grant permission to conduct
procession and to conduct public meeting on
02.10.2022 at various places subject to the following
conditions on or before 28.09.2022:-
i. During the program, nobody shall either sign
songs or speak ill on any individuals, any caste,
religion, etc.,
ii. Those who participate in the program shall
not for any reason talk or express anything in favour of
organizations banned by Government of India. They
should also not indulge in any act disturbing the
sovereignty and integrity of our country.
iii. The program should be conducted without
causing any hindrance to public or traffic.
iv. The participants shall not bring any stick,
lathi or weapon that may cause injury to any one.
v. The organizer(s) shall make adequate
arrangements for drinking water and proper First
Aid/Ambulance/Mobile Toilets/CCTV Cameras/ Fire
Fighting equipments etc., in consultation with the
Police/Civic/Local Bodies as directed by the police.
vi. The procession shall proceed in any orderly
manner along the sanctioned route keeping to the left
and shall not halt on the way or cause impediment to
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the normal flow of traffic. The procession shall occupy
only one-fourth of the road.
vii. The organizer(s) shall keep sufficient
volunteers to help the police for regulation of traffic
and the participants.
viii. The organizer(s) of procession/rally shall be
responsible for ensuring that the route permitted to
them by the Police Authorities is strictly followed.
ix. Only box type speakers should be used and
output of the speakers should not exceed 15 watts ad
within a radius of 30 meters only. Cone Speakers
should not be used at any cost.
x. In the procession, the processionists shall not
any manner offend the sentiments of any religious,
linguistics, cultural and other groups.
xi. An undertaking to reimburse the cost for any
damage that may occur enroute to any public/private
property and an undertaking to bear the
compensation/replacement costs as well, if are to be
awarded to any other institution/person, who may apply
for the same.
xii. If there is violation of any one of the
conditions imposed, the concerned police officer is at
liberty to take necessary action, as per law.”
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6. Thus, the order of this Court dated 22.09.2022 passed in
W.P.No.24540 of 2022 as confirmed by the Hon'ble Supreme Court had
reached the finality and bends the State. It is also pertinent to note that, the
Hon'ble Supreme Court of India while considering the appeal preferred by
the State been abreast of the attitude of the State, while considering the
request of the Organization seeking permission to conduct rally, weighted
the right of the individuals/Organizations vis-a-vis the responsibilities of the
State in protecting the right conferred under Part-III of the Constitution,
observed that, the main objection raised by the State before the High Court
was that after the imposition of ban order on another organization, law and
order problems cropped up in certain places and the same led to several cases
being registered were knocked at the instances of the petitioners or its
organizations.
7. The chart provided by the State Government shows that the
members of the respondents organisation were the victims in many of those
cases and certainly they were not the perpetrators. Therefore, while
upholding the order of the learned Judge dated 22.09.2022, Special Leave
petition filed by the Home Secretary was dismissed.
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8. The above said factual background required to extracted at length
since the State without considering the application for granting permission to
conduct rally, made these Writ Petitioners, to wait for nearly a month. Till
filing the Writ Petition, they did not pass any order on their representations.
Fearing that, the State may pass orders at the eleventh hour keeping the
Organizers guessing, they have filed Writ Petitions.
9. After notice in the Writ Petitions, the State has passed individual
orders rejecting the request for conducting rally. It appears that the State
Administration through the Superintendent of Police of the District concern
had given a questionnaire containing about 36 questions and sought for the
response of the applicant within 24 hours from the receipt of the
questionnaires. The applicant had provided informations which are within
their exclusive knowledge and from informations gathered. After considering
the informations given in response to the questionnaires, invariably all the
requests been rejected stating that the response to the questionnaires are not
satisfactory.
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10. Mr.R.Shanmuga Sundaram, Learned Advocate General had
circulated tabular column containing informations regarding the
representations received from the Writ Petitioners, the proposed route for
their road march, the reason for rejection. The tabulation is annexed to this
judgment to be read as part and parcel of the judgment.
11. The respondent also filed memo narrating the process they
undertook for considering the representations, wherein it is stated that,
having rejected their requests seeking permission to conduct the route march,
petitioner can only challenge the rejection order and therefore, present writ
petitions for Mandamus cannot be persuaded by them any further.
12. Mr.G.Rajagopalan, Senior Counsel for the petitioners submitted
that the rejection order is non-est in law. It is an act of disobedience of
Supreme Court order which warrants action under Contempt of Courts Act.
13. Mr.N.L.Rajan, learned Senior Counsel, who is representing the
petitioner, referring three Judges Bench Judgement of the Hon'ble Supreme
Court of India headed by Justice K.Subba Rao, J.C.Shah and S.M.Sikri in
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Dwarka Nath -vs- Income Tax Officer, Special Circle D.Ward, Kanpur
and another reported in AIR 1966 SC 81 submitted that, Article 226 is
couched in comprehensive phraseology to protect the right of the citizen and
the Court can mould the relief and need not force the parties to make formal
petition to file the Writ of Certiorarified Mandamus or any other Court
challenging the rejection order, particularly, when the said rejection order
was passed pending Writ Petition seeking Mandamus.
14. This Court is in total agreement with the submission made by the
Mr.N.L.Rajan, Learned Senior Counsel. It is pertinent to repeat that the
application seeking permission to conduct rally been received by the
respondent about a month ago. Till filing of this Writ Petition, they did not
pass any order. Therefore, it was specifically alleged that this is the conduct
of the State keeping the applications pending till the eleventh hour and
rejecting it only after Writ Petitions are filed. In the present circumstances,
the rejection order been passed in the course of hearing the Writ Petition,
since the rejection order is available and its merits and demerits are
canvassed by the learned Counsels on either side, this Court has no hesitation
or impediment to mould the prayer as deem fit and necessary.
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15. Now, considering the questionnaires and the reason stated by the
State Administration for rejecting the representations, it is broadly on the
ground that, (i). There are Mosques and Churches in the procession route.
(ii). There is a possibility of traffic congestion since there are narrow roads.
At the same time, procession in the National Highways road is also shown as
reason for rejection. (iii). In one of the rejection order, it is stated that,
applicant has not disclosed the existence of Dravidar Kazhagam Office in the
procession route. Invariably, in almost all the rejection order, the requests
made by the V.C.K. Party and Thamizhar Vazhvurimai Kazhagam, to
conduct meeting and procession during the said period is also shown as one
of the reason for rejection. Some of the earlier untowards incidents leading to
registration of criminal cases are also mentioned. The chart provided by the
learned Advocate General, which annexed to the judgment, are lame reasons
to say the least. The State to circumvent or defy the mandate of Hon'ble
Supreme Court order to deny permission to the Organization to conduct rally
in a democratic manner had listed out reasons and it only exposes the
inability of the State machinery.
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16. When the matter was taken up for hearing, this Court requested the
learned Advocate General and learned Public Prosecutor whether there is any
difficulty in granting permission in a particular place or particular date or on
a particular time or on a particular route. If there is any such difficulty, same
can be intimated to the Organizers to alter the date or time or place or route.
But the rejection order passed subsequently clearly shows that, the State has
no intention to permit this Organization to conduct the Rally on 22.10.2023
or 29.10.2023. The reasons stated in their rejection order is not pertinent to
the inconvenience of the State to provide protection particular date or time
but on the general reasons which will always be in existence at all point in
the entire 365 days of the year. In few of the rejection orders, it is stated that,
Devar Jayanthi is to conducted on 30.10.2023, therefore, mobilization of the
Force to the Southern part of the State is required. Whereas, in the Writ
Petitions, this Court finds the Organizers of RSS from the Southern District
had sought permission to conduct Procession/meeting only on 22.10.2023,
which is about 8 days earlier to the Devar Jayanthi. Hence, this reason is not
appeared to be genuine or reasonable.
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17. Mr.G.Karthikeyan, learned Senior Counsel draw the attention of
this Court by referring the judgment of the Division Bench of this Court
rendered in Ramasamy Udayar -vs- The District Collector, Perambalur
District and others (W.A.Nos.743 & 2064 of 2019), wherein, the Division
Bench of this Court, while considering the dispute between the two groups
in connection with the enjoyment of a land, had observed in an unambiguous
term that, “As per Section 180-A of the District Municipalities Act 1920,
roads or streets should be used as access to the people irrespective of their
religion, caste or creed. Merely because one religious group is dominating
in a particular locality, it cannot be a ground to prohibit from celebrating
religious festivals or taking processions of other religious groups through
those roads. If it is to be accepted, then a day will come when a particular
religious group which is predominantly occupying the area, will not the
people belonging to other religious groups even to use the roads even for
movement, transportation or the normal access. Even the marriage
processions and funeral processions would be prohibited/prevented which is
not good for our society.”
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18. This observation need to be referred because in all the rejection
orders, District Administration has quoted the existence of Mosques and
Churches in the procession route. In the very same judgment, the Division
Bench has declared as follows:-
“24.If there going to be any law and order
problem, the police authorities have to intervene and
prevent any untoward incidents and give appropriate
police protection. Therefore, the case of the petitioner
has to be accepted and there shall be a direction to the
authorities to permit the Hindus to conduct two
processions on the first and second day of the village
temple festivals through all the streets and roads which
have been conducted till 2015. As far as the procession
on the third day of temple festival is concerned, the
petitioner himself accepted that Hindus would not
conduct the procession in which the turmeric water
would be sprinkled.
25.The abovesaid facts of the case would reveal
that all along there had been religious tolerance and
the religious festivals were conducted very smoothly
and religious procession were conducted without any
problem through all the streets and roads of the village.
If religious intolerance is going to be allowed, it is not
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good for a secular country. Intolerance in any form by
any religious group has to be curtailed and prohibited.
In this case, intolerance of a particular religious group
is exhibited by objecting for the festivals which have
been conducted for decades together and the
procession through the streets and roads of the village
are sought to be prohibited stating that the area is
dominated by Muslims and therefore, there cannot be
any Hindu festival or procession through the locality.
India is a secular country and merely because one
religious group is living in majority in a particular
area, it cannot be a reason for not allowing other
religious festivals or processions through that area. If
the contention of the private respondent is to be
accepted then it would create a situation in which
minority people cannot conduct any festival or
procession in most of the areas in India. If resistance is
being exhibited by one religious group and it is
reciprocated by the other religious groups, there would
be chaos, riots, religious fights causing loss of lives and
destruction of properties. Consequently, the secular
character of our country will be destroyed or damaged.
26.Hence, it is hereby declared,
1.Once it has been declared by the authorities as roads
or streets as per Section 180-A of the District
Municipalities Act, the roads and streets which are
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"secular", should be used as roads by all the people
irrespective of their religion, caste or creed.
2.Any procession including religious procession shall
be conducted through all the roads and streets without
any restriction.
3.Any procession including religious procession cannot
be prohibited or curtailed merely because another
religious group is residing or doing business in the
area predominantly.
4.There cannot be a prohibition for any procession
including religious processions through roads by the
District administration or police authorities and there
can be only regulation by the police or other
Government authorities to see that no untoward
incident occurs or any law and order problem arises.
5.Every religious group has got fundamental right to
take out religious procession through all the roads
without insulting the other religious sentiments and
without raising any slogans against other religious
groups, affecting their sentiments, public law and
order.
6.Merely because there is one place of worship
belonging to other religious group, the same cannot be
a ground to decline/deny permission to conduct
procession including religious procession of other
religions to go through those roads or streets
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7.The presence of religious structures/places of worship
cannot take away the right of other religious groups
who have been enjoying all the rights including the
conduct of religious procession for the past many
years.”
19. The tenure of the rejection order certainly not in tune with Secular
or democratic way of governance. It is neither in obedience or compliance
of the Hon'ble Supreme Court of India dictum. By citing the existence of the
structures, place of worship of other religion or office of some organizations,
which do not share the same ideology of RSS, the request of RSS to conduct
procession and public meeting is rejected. This order is contrary to the
principle of Secularism which is the foundation of our Constitution of India.
20. Having said so, the Organizers of the rally who had sought
permission for procession and meeting should give an undertaking to the
District Superintendent of Police, to whom they sought for permission to
conduct the rally, that they will scrupulously follow the guidelines of the
Hon'ble Supreme Court of India and they will not deviate the guidelines and
any other restrictions reasonably laid by the District Administration.
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21. The Respondents shall ensure peaceful procession by providing
adequate bandobust. Having now aware of the route and prospective spots
which required concentration and attention, it is the duty and responsibility
of the District Administration to make all necessary arrangements for
peaceful conduct of the rally/procession and the public meeting.
22. Accordingly, the Writ Petitions are Allowed, on following terms,
in addition to the guidelines laid by this Court vide order dated 22.09.2022
affirmed by the Hon'ble Supreme Court in S.L.P.(Civil).No.4163 of 2023
dated 11.04.2023.
i) The Superintendent of Police of the concerned
District, to whom the application is made shall issue
permission after having consultation with the Organizers, if
necessary.
ii) The Organizers of the processions may be
amenable for minor change in the route, if the District
Administration feels that, it may be difficult for them to
provide bandobust in a particular route. If there is any such
difficulty, the District Administration can have consultation
with the Organizers and provide alternative route.
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iii) The starting point and ending point shall not be
compromised under the guise of changing the route.
(iv). The permission in writing with necessary
restriction to be issued atleast three days prior to the date of
rally/meeting.
Consequently, connected Miscellaneous Petitions are closed. No costs.
16.10.2023
Index : Yes/No.
Internet :Yes/No.
Neutral Citation : Yes/No.
sma
Copy to:-
1. The Secretary, Home Department, Fort St. George, Chennai – 600 009.
2. The Director General of Police, Post Box No.601, Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.
3. The Superintendent of Police, Neethimedu, Salem – 636 002.
4. The Inspector of Police, Vazhapady, Salem – 636 115.
5. The Public Prosecutor, High Court, Madras.
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Dr.G.JAYACHANDRAN,J.
Sma
W.P.No.29039 of 2023 etc batch
16.10.2023
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