Allowed

K.Thiagarajan @ Thozhar v. the Commissioner of Police

Madras HC1 Oct 2013WP/26930/2013

Case brief

AI extract

What is this about?

The Supreme Court (High Court) allowed a writ petition challenging a police order rejecting permission for an indefinite hunger strike. The court held that hunger strikes are recognized peaceful protests under Articles 19 and 21 but located the permitted venue away from busy Marina due to traffic concerns.

What did the court decide?

Impugned order rejected; petitioner granted liberty to undertake fast at Chepauk or Valluvar Kottam subject to undertaking and police conditions.

K.Thiagarajan @ Thozhar Vs the… — Constitutional and Fundamental Rights | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 01.10.2013

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CORAM:

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THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

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K. Thiagarajan @ Thozhar Thaigu General Secretary Thamizgh Thesiya Vidhuthalai Iyakkam MCA Illam II Floor 120, Mullai Street Periyar Pathai Choolaimedu Chennai-600 094. ...Petitioner -VersusThe Commissioner of Police Chennai City Police Office of the Commissioner of Police Egmore, Chennai-600 008. ...Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the entire records connected with the impugned order (Proceedings No.1489/T.P.2/2013) dated 19.09.2013 of the respondent and quash the same.

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Introductory:

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Whether organising an indefinite fast would amount to an unconstitutional Act forbidden by law is the core issue that arises for consideration in this writ petition, in view of the stand taken

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by the Commissioner of Police, Chennai that threat of going on a hunger strike is punishable under law and as such it cannot be permitted.

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The facts:

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The petitioner is stated to be the office bearer of Thamizh Thesiaya Viduthalai Iyakkam, a social organisation, deeply involved in exposing the cause of Tamil language, tradition and culture.

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According to the petitioner, the organisation has taken a decision to organise indefinite fast at Marina from 1 October 2013 onwards. The petitioner pursuant to the said resolution submitted an application on 5 September 2013 requesting the Commissioner of Police, to grant permission. The Commissioner of Police rejected the request on the ground that indefinite fast is illegal and the proposal would create law and order problem at Marina. The said order dated 19 September 2013 is challenged in this writ petition.

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It is the contention of the petitioner that hunger strike is a universally accepted method of protest. The President, Chief Minister and the former Chief Minister have undertaken similar indefinite fast at Marina and Valluvar Kottam and therefore there is nothing illegal in the decision taken by the organisation.

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The Deputy Commissioner of Police, Mylapore filed a counter affidavit contending that indefinite fast as proposed by the petitioner possess great risk to the life of the persons undertaking such fast and such an act is punishable under Indian Penal Code. It was further contended that Thiruvallur Statute on Marina is not an approved place of agitation. The Deputy Commissioner of Police further submitted that the proposed protest would create a law and order situation and as such permission was rightly rejected.

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Submissions:

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Thiru N.G.R. Prasad, learned counsel for the petitioner submitted that the respondent has not studied the Indian National Movement and as to how India got independence. According to the learned counsel, hunger strike is a recognised mode of protest. The Chief Ministers of the State, both present and past have also adopted this mode to express their protest in a peaceful manner on various occasions. Therefore the police commissioner was not correct in denying permission to the petitioner.

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The learned Additional Advocate General submitted that the police have no objection to permit one day fast. The objection is against the indefinite fast and the location selected by the petitioner. According to the learned Additional Advocate General,

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the police is concerned with the law and order problem and as such, the impugned order does not call for interference.

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Analysis:

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The petitioner wanted to express his solidarity with the Srilankan Tamils and to protest against human rights violations in Srilanka. The petitioner has got a charter of demands. He wanted to expel Srilanka from common wealth, besides shifting of Commonwealth Heads of State meeting from colombo to any other place, outside Srilanka. In case the said meeting is conducted at Colombo, it is the demand of the petitioner that our Prime Minister should boycott the meeting. It was only to cite the attention of authorities to these demands, the petitioner has decided to go on indefinite fast at Marina, within the limits of Chennai Corporation.

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The move to undertake hunger strike is opposed by the police on the ground that the proposed act is illegal and that it would give right to law and order problem in and around the City of Chennai.

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There are two issues raised in this writ petition, in view of the stand taken by the police, as supportive reasons to reject the request made by the petitioner.

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(b) Whether the police can reject the request on the ground of possible law and order problem without indicating the primary materials which made the police to arrive at such a conclusion.

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Resolution of issues:

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The petitioner in his affidavit filed in support of the writ petition has taken up a specific contention that even the Chief Ministers of the State have undertaken hunger strike as a means to express their protest. The following are the details of such protest:

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(a) The Hon'ble Chief Minister of Tamil Nadu wanted the Central Government to implement the interim award of Cauveri Water Disputes Tribunal. Since the Central Government failed to take any action, the Hon'ble Chief Minister went on an indefinite fast from 18 to 21 July, 1993.

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(b) The Hon'ble Chief Minister of Tamil Nadu while she was in the opposition, went on fasting near Valluvar Kottam to condemn the Central and

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State Government on its betrayal of people of Tamil Nadu on the Cauveri issue.

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The petitioner appears to be guided by the precedent set by the Chief Ministers to highlight the burning issues faced by the people of Tamil Nadu and Srilankan Tamils.

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The first issue is no more res integra in view of the recent decision of the Supreme Court in Ramlila Maidan Incident, Inre (2012) 5 SCC 1.

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The Supreme Court in Mohd.Yousuf Rather v. State of Jammu and Kashmir (AIR 1979 SC 1925) observed that "Hunger strike, in our Country, is a well known form of peaceful protest, and it is difficult to connect this with public disorder."

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In Ramlila Maidan Incident, the Supreme Court made the following observation with regard to hunger strike.

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"209. ...........The threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence."

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Second issue:

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The police have indicated that in case the hunger strike is permitted there is every possibility of public disorder. The order does not contain basic materials which made the police to arrive at such a conclusion.

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There is no dispute that the police had a duty to maintain law and order. While rejecting a request to hold procession or dharna or any other kind of agitation, the police is expected to indicate at least in a brief manner the reasons or perception of the officer recording such reasons, with regard to the threat perception or likelihood of disturbance to public order.

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The Supreme Court in Ramlila Maidan Incident, indicated the responsibility of the State in the following words:

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"178. There is a direct as well as implied responsibility upon the Government to function openly and in public interest. Each citizen of India is entitled to enforce his fundamental rights against the Government, of course, subject to any reasonable restrictions as may be imposed under law. The Government can, in larger public interest, take a decision to restrict the enforcement of freedom, however, only for a valid, proper and justifiable reason. Such a decision cannot be arbitrary or capricious.

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........Denial of a right to hold such meeting has to be under exceptional circumstances and strictly with the object of preventing public tranquillity and public order from being disturbed."

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The fact that others would visit the petitioner alone cannot be a reason to deny permission to undertake hunger strike. The State having allowed similar form of protest earlier cannot take a different yardstick now. It is always possible for the police to regulate and rather to restrict movement. The police had enough power to impose reasonable restrictions to ensure the safety and convenience of the people at large. Even while permitting Dharnas and other mode of protest, police can put sufficient safeguards. Even undertaking can be obtained from the organisers to maintain peace and orderliness during the currency of such demonstrations and meetings. The police should evolve a mechanism to ensure law and order without infringing the fundamental right to Assembly and other basic rights guaranteed by the Constitution.

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The police appears to have taken a policy decision to ban public meetings and other kind of agitations, fearing possible law and order problem. There is no dispute that there cannot be a uniform Rule in all such cases. Each case has to be decided taking into account the peculiar factual situation. The police is the best Judge to decide such matters. However decisions should not be arbitrary, unfair or unjust. There should not be any kind of selective discrimination.

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The organisers like the petitioner also got a duty to the public at large. The Supreme Court has now declared that the citizens/persons have a right to leisure, to sleep, not to hear and to remain silent. Responsibility therefore lies on the police to reconcile the right to hold meetings and the basic right of others not to hear.

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There are several forms of protest. There are violent and non violent method of expression of protest. The agitations, dharnas, processions are now part of our life. Gandhiji advocated the philosophy of non violence. The story of Mahatma is a story of nonviolence. Mahatma Gandhi believed in the god of truth and led the freedom movement. The victory of our freedom movement is nothing but the principle of Ahimsa. The mode adopted by Gandhiji to obtain his goal was fasting. Unlike other forms of agitations, fasting is considered as a non-violent method of protest or expression of dissent. The people of this Country have every right to express their views. In order to achieve the goal, various methods of agitations are now resorted. Very seldom people resort to the non-violent method of protest. When a person approaches the authorities with a request to permit him to go on fasting, the issue should be considered in the light of the freedom of speech and expression guaranteed by our Constitution. Even though reasonable restrictions could be imposed on the exercise of such rights, it is impermissible to prohibit it without any ryme or reason. The orders of this nature should be tested on the touchstone of Articles 19 and 21 of the Constitution.

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Therefore on a careful consideration of the entire factual matrix, I hold that the Commissioner of Police was not correct in denying permission to the petitioner to undertake indefinite fast. The impugned order is therefore liable to be quashed.

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Location:

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The next question relates to the venue. The police had contended that in case the fast is permitted at Marina, it would cause traffic problems. The said contention appears to be correct. The Marina attracts several tourists and people across the State. The functioning of Madras University, Secretariat, Reserve Bank and similar other institutions would be affected in case traffic comes to a stand still on this arterial road. Therefore, it is not possible to permit the petitioner to go on fast at Marina.

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The alternative location is opposite to Government Guest House at Chepauk or Valluvar Kottam. The petitioner should be given liberty to choose any of these locations.

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Directions:

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The impugned order is set aside and the following directions are issued.

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"(1) The petitioner is directed to give an undertaking that he would not initiate violence while organising meetings in connection with his hunger strike and he should co-operate with the police to ensure law and order.

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(2) The petitioner should furnish the names and address of other members of his organisation, in case they are associating with the petitioner by joining the hunger strike.

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(3) In case any of the leaders supporting the cause wanted to speak by arranging meeting near the venue of fasting, prior intimation should be given to the jurisdictional police including details of persons and permission should be taken.

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(4) The vehicles should not be parked near the venue.

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(5) It is open to the Commissioner of Police to impose any other reasonable conditions to ensure law and order.

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(6) The petitioner is directed to inform the Commissioner of Police about the selection of location by 5.00 p.m. today. The Commissioner is directed to give permission by 6.00 p.m. on 1 October, 2013 by imposing necessary conditions as indicated above and other usual terms."

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Before concluding I consider it deem and fit to reproduce the following observation of the Supreme Court in Ramlila Maidan Incident:

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"245. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of

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speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquility, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them."

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In the upshot, I allow the writ petition. Consequently,
connected miscellaneous petition is closed. No costs.
Tr/ Sd/
Asst.Registrar
//true copy//
Sub Asst.Registrar
To
The Commissioner of Police,
Chennai City Police,
Office of the Commissioner of Police,
Egmore, Chennai-600 008.

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- 1 CC TO MR.G.PAVENDHAN, ADVOCATE SR.51912. + 1 CC TO THE GOVT.PLEADER, SR.NO.51961.

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W.P.No.26930 of 2013

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KR/01/10/2013

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K.Thiagarajan @ Thozhar v. the Commissioner of Police

Case brief

What is this about?

What did the court decide?

K.Thiagarajan @ Thozhar v. the Commissioner of Police

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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