Pugazendhi Thangaraj vs The Commissioner of Police and Deputy Commissioner of Police

K. Chandru, J.—The short question that arises for consideration in the present writ petition is whether the order of the Respondent

Commissioner of Police, Chennai City in denying the request made by the Petitioner for conducting a ""signature campaign"" with reference to an

appeal to the Government of India to remove the ban on ""Liberation Tigers of Tamil Eelam"" (LTTE) in a public place, by the exercise of his power

u/s 41 of the Chennai City Police Act is justified?

The Petitioner is a freelance journalist and a film director. He had started an organization called ""Karuthurimaikkalam"", a forum for right of

expression in the year 2008. According to the Petitioner, ""Liberation Tigers of Tamil Eelam"" (for short LTTE) was prohibited under the Unlawful

Activities (Prevention) Act, 1967 (for short UAPA). The Petitioner finds the said ban was repugnant to democracy and wanted to send a join

representation to the Governor of Tamil Nadu expressing the opinion of general public. Therefore, in order to mobilize opinion of the public on the

said issue, he organized a signature campaign on 19.10.2010 from 4.00 p.m. to 7.00 p.m. By the said campaign, an appeal will be made to the

people who are passers by to express their opinion by signing a joint memorandum. The venue was fixed near Panagal Maligai at Saidapet.

The Petitioner gave a representation on 15.10.2010 seeking permission to conduct the campaign. However, by the impugned order, the

Petitioner''s request was denied mainly on two reasons. The first was that u/s 41, an application will have to be made before five days of the

programme for which permission was sought for. Since the Petitioner''s request was made only four days before, the application was not in order.

Not stopping with that, the Respondents had also stated that any meeting, demonstration or signature campaign in support of the banned

organization is an offence under law. Therefore, permission was refused. Challenging the said order, the present writ petition came to be filed.

When the matter came up on 19.10.2010, notice was directed to be given to the learned Government Pleader. Subsequently, the matter was

adjourned from time to time. Finally, the Respondents have filed a counter affidavit, dated 10.1.2011. They have also produced a copy of the ban

order notified by the State Government vide G.O. Ms. No. 446, Public (SC) Department, dated 17.05.2010 containing the Government of

India''s notification, dated 14.5.2010 banning the LTTE under the provisions of the Unlawful Activities (Prevention) Act, 1967.

Since earlier the programmed was scheduled to take place on 19.10.2010 and that date has also expired on account of various adjournments

made in the writ petition, the counsel for the Petitioner filed a memo stating that should this Court grant permission, they are willing to have the

campaign on 30.03.2011 at 4.00 p.m. in the same venue.

Mr. S. Doraisamy, learned Counsel appearing for the Petitioner submitted that the impugned order passed by the Respondent police was illegal

and violative of Articles 14, 19(1)(a), 19(1)(c) and 21 of the Constitution of India. The programme organized by the Petitioner is only to make a

joint appeal to the Governor and that the denial order stultify the democracy. The signature campaign was intended to reflect the voice of public at

large and by no stretch of imagination, by the signature campaign any disturbance to the public peace will arise. The impugned order is also

contrary to various judgments of this Court.

Reference was made to a judgment of this Court in P. Nedumaran v. State of Tamil Nadu and Ors. reported in 1999 (1) LW 7 and also a

division bench judgment of this Court in C.J. Rajan v. Deputy Superintendent of Police reported in (2008) 3 MLJ 926. He also referred to a

division bench judgment of this Court made in H.C.P. No. 260 of 2009, dated 17.04.2009 in S. James Peter v. The Government of Tamil Nadu,

The Secretary to Government, Public (Law and Order-F) Department and another, wherein it was held that a mere support or participation in

public meeting by itself will not attract the provisions of Unlawful Activities (Prevention) Act, 1967 (for short UAPA Act). He referred to the

following passages found in paragraphs 29 and 30, which reads as follows:

...Therefore, if there is any consequential unlawful activity in pursuance of the speech delivered by the detenu, the provisions of Section 13(1)

(b) and 13(2) are attracted.

...Further, it is not at all the case of the Respondents that except delivering the alleged speech, the detenu, has in any manner acted in a manner

prejudicial to the sovereignty of the country. In the absence of any proof that any such law and order problem has arisen pursuant to the speech

delivered by the detenu and in the absence of any material to show that the detenu has taken part in any unlawful activities or committed any

unlawful activity, so as to fall within the ambit of Section 13(1)(a) of the Unlawful Activities (Prevention) Act, 1967 and further in the absence of

any material to show that the detenu has assisted any unlawful association, so as to say that he has committed the offence u/s 13(2) of the Unlawful

Activities (Prevention) Act, 1967, the ingredients of Section 13(1)(a) and 13(2) are not attracted.

Per contra, Mr. M. Dhandapani, learned Special Government Pleader referred to the counter affidavit, dated 10.1.2011 filed by the second

Respondent, wherein a reference was made to Section 13(2) of the UAP Act. He further contended that any assistance to unlawful activities of the

association is an offence under the Act. Taking signature in support of the banned organization will also amount to an offence. It is a reasonable

restriction imposed on the Petitioner. Hence the question of any violation of fundamental right of the Petitioner will not arise. It is also stated that

restriction imposed is lawful.

In view of the above, two questions arises in the present case. One was that the Petitioner being an Indian Citizen whether the right guaranteed

by Part III will inure to his benefit. Secondly, whether he is entitled to express his opinion is governed by the provisions of the Constitution? If that

is so, whether in exercise of power under the Madras City Police Act, the Respondents can prohibit the campaign organized by the Petitioner?

On the context of a public protest and the invocation of the City Police Act, 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.

On the question of freedom of speech, 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 and the communication 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

emphasized 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 powder keg.

On the question of support to a banned organization, the Supreme Court very recently in State of Kerala Vs. Raneef, referred to several

judgments of the US Supreme Court with approval. In paragraphs 11 to 14, it was stated as follows:

In Scales v. United States 367 U.S. 203 Harlan, J. of the US Supreme Court while dealing with the membership clause in the Mc Carran Act,

1950 distinguished between active ""knowing"" membership and passive, merely nominal membership in a subversive organization, and observed:

The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish,

deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the Defendant specifically intends

to accomplish the aims of the organization by resort to violence.

In Elfbrandt v. Russell (1966)384 US 17, Douglas, J. of the US Supreme Court speaking for the majority observed: (L Ed pp. 325-26)

Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat,

either as citizens or as public employees.... A law which applies to membership without the ''specific intent'' to further the illegal aims of the

organization infringes unnecessarily on protected freedoms. It rests on the doctrine of ''guilt by association'' which has no place here.

In Joint Anti-Fascist Refugee Committee v. McGrath (1951)341 US 123 Mr. Douglas, J. of the US Supreme Court observed: (L Ed p.855)

In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents.

But when we do, we set in motion a subversive influence of our own design that destroys us from within.

We respectfully agree with the above decisions of the US Supreme Court, and are of the opinion that they apply in our country too. We are

living in a democracy, and the above observations apply to all democracies."" 13. Subsequently, the Supreme Court in Arup Bhuyan Vs. State of

Assam, , once again referred to several other US Supreme Court judgments and quoted with approval in interpreting Section 3(5) of the Terrorist

and Disruptive Activities (Prevention) Act, 1987. The following passages found in paragraphs 13 to 16 may be usefully extracted below:

13.Subsequently, the Supreme Court in Arup Bhuyan Vs. State of Assam, , once again referred to several other US Supreme Court judgments

and quoted with approval in interpreting Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The following passages

found in paragraphs 13 to 16 may be usefully extracted below:

In Clarence Brandenburg v. State of Ohio (1969)395 U.S. 444 the U.S. Supreme Court went further and held that mere ""advocacy or

teaching the duty, necessity, or propriety"" of violence as a means of accomplishing political or industrial reform, or publishing or circulating or

displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate

the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed ""to teach or advocate the doctrines of criminal

syndicalism"" is not per se illegal. It will become illegal only if it incites to imminent lawless action. The statute under challenge was hence held to be

unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.

In United States v. Eugene Frank Robel 389 U.S. 258, the U.S. Supreme Court held that a member of a communist organization could not be

regarded as doing an unlawful act by merely obtaining employment in a defense facility.

We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the

Bill of Rights in the U.S. Constitution.

In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light

of our observations made above. Hence, mere membership of a banned organization will not make a person a criminal unless he resorts to violence

or incites people to violence or creates public disorder by violence or incitement to violence.

Once again the Supreme Court in Sri Indra Das v. State of Assam reported in 2011 (2) SC 67 quoted with approval the case of Arup

Bhuyan''s case (cited supra) and made a further reference to certain other decisions of the Us Supreme Court. The following passages found in

paragraphs 13 to 18 and 20 to 26 may be usefully extracted below:

In Noto v. U.S. 367 US 290 Mr. Justice Harlan of the U.S. Supreme Court observed:

...The mere teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence,

is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial

evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the otherwise

ambiguous theoretical material regarding Communist Party teaching.

In Noto''s case (supra) Mr. Justice Hugo Black in a concurring judgment wrote:

In 1799, the English Parliament passed a law outlawing certain named societies on the ground that they were engaged in ''a traitorous

Conspiracy...in conjunction with the Persons from Time to Time exercising the Powers of Government in France....'' One of the many strong

arguments made by those who opposed the enactment of this law was stated by a member of that body, Mr. Tierney:

`The remedy proposed goes to the putting an end to all these societies together. I object to the system, of which this is only a branch; for the Right

Hon. gentleman has told us he intends to propose laws from time to time upon this subject, as cases may arise to require them. I say these attempts

lead to consequences of the most horrible kind. I see that government are acting thus. Those whom they cannot prove to be guilty, they will punish

for their suspicion. To support this system, we must have a swarm of spies and informers. They are the very pillars of such a system of

government.'' The decision in this case, in my judgment, dramatically illustrates the continuing vitality of this observation. The conviction of the

Petitioner here is being reversed because the Government has failed to produce evidence the Court believes sufficient to prove that the Communist

Party presently advocates the overthrow of the Government by force.

(emphasis supplied)

In Communist Party v. Subversive Activities Control Board (1961)367 US 1 Mr. Justice Hugo Black in his dissenting judgment observed:

The first banning of an association because it advocates hated ideas -whether that association be called a political party or not --marks a fateful

moment in the history of a free country. That moment seems to have arrived for this country.... This whole Act, with its pains and penalties,

embarks this country, for the first time, on the dangerous adventure of outlawing groups that preach doctrines nearly all Americans detest. When

the practice of outlawing parties and various public groups begins, no one can say where it will end. In most countries such a practice once begun

ends with a one party government.

In Joint Anti-Fascist Refugee Committee v. McGrath (1951)341 US 123 Mr. Justice Douglas in his concurring judgment observed:

In days of great tension when feelings run high, it is a temptation to take short cuts by borrowing from the totalitarian techniques of our opponents.

But when we do, we set in motion a subversive influence of our own design that destroys us from within.

(emphasis supplied)

In Keyishian v. Board of Regents of the University of the State of New York (1967)385 US 589 the U.S. Supreme Court struck down a law

which authorized the board of regents to prepare a list of subversive organizations and to deny jobs to teachers belonging to those organizations.

The law made membership in the Communist Party prima facie evidence for disqualification from employment. Mr. Justice Brennan, speaking for

the Court held that the law was too sweeping, penalizing ""mere knowing membership without a specific intent to further the unlawful aims.

In Yates v. U.S. (1957)354 US 298 Mr. Justice Harlan of the U.S. Supreme Court observed:

In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court

appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. The District

Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action.

In Whitney v. California (supra) Mr. Justice Brandeis, the celebrated Judge of the U.S. Supreme Court in his concurring judgment (which

really reads like a dissent) observed:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of

free speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that

serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent.... The wide

difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind.

(emphasis supplied)

Mr. Justice Brandeis in the same judgment went on to observe:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of

liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular

government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it

may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil

by the process of education, the remedy to be applied is more speech, not enforced silence.

In Gitlow v. New York (1925)268 US 652 Mr. Justice Holmes of the U.S. Supreme Court (with whom Justice Brandeis joined) in his

dissenting judgment observed:

...If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on

the part of the admittedly small minority who shared the Defendant''s views. It is said that this Manifesto was more than a theory, that it was an

incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure

of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the

speaker''s enthusiasm for the result. Eloquence my set fire to reason. But whatever may be thought of the redundant discourse before us, it had no

chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the

dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

If the publication of this document had been laid as an attempt to induce an uprising against government at once, and not at some indefinite time in

the future, it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt

whether there was any danger that the publication could produce any result; or, in other words, whether it was not futile and too remote from

possible consequences. But the indictment alleges the publication and nothing more.

In Terminiello v. Chicago (1949) 337 US 1 Mr. Justice Douglas of the U.S. Supreme Court speaking for the majority observed:

...[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a

condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It

may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of

speech, though not absolute,...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present

danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.... There is no room under our Constitution for a

more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community

groups.

In DeJonge v. Oregon (1937)299 US 353 Chief Justice Hughes of the U.S. Supreme Court wrote that the State could not punish a person

making a lawful speech simply because the speech was sponsored by a subversive organization.

In Abrams v. U.S. (1919)250 US 616 Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment wrote:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain

result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate

that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or

that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe

even more then they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, --that

the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which

their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year,

if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our

system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with

death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is

required to save the country. I wholly disagree with the argument of the government that the 1st Amendment left the common law as to seditious

libel in force. History seems to me against the notion.

(emphasis supplied)

It has been submitted by the learned Counsel for the Government before the TADA Court that under many laws mere membership of an

organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967,

etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights

guaranteed by our Constitution.

After agreeing with all those opinions of the US Supreme Court in Sri Indra Das case (cited supra), the Supreme Court held that the

constitution being Supreme no statute can be violated. In paragraphs 27 to 31 it was observed as follows:

The Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to violate it we can either declare

it unconstitutional or we can read it down to make it constitutional. The first attempt of the Court should be try to sustain the validity of the statute

by reading it down. This aspect has been discussed in great detail by this Court in Government of Andhra Pradesh and Others Vs. Smt. P. Laxmi

Devi, .

In this connection, we may refer to the Constitution Bench decision in Kedar Nath Singh Vs. State of Bihar, where the Supreme Court was

dealing with the challenge made to the Constitutional validity of Section 124A IPC (the law against sedition).

In Kedar Nath Singh''s case this Court observed (vide para 26):

...If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use

of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then

such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with Clause (2). It is well settled that if

certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them

unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the

explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to

create disorder or disturbance of public peace by resort to violence....

Section 124A which was enacted in1870 subsequently amended on several occasions This was Court observed in Kedar Nath''s case (supra)

observed that now that we have a Constitution having Fundamental Rights all statutory provisions including Section 124A IPC have to be read in a

manner so as to make them in conformity with the Fundamental Rights. Although according to the literal rule of interpretation we have to go by the

plain and simple language of a provision while construing it, we may have to depart from the plain meaning if such plain meaning makes the

provision unconstitutional.

Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention)

which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the

literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the

Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal

interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional.

As seen from the above, the Supreme Court also dealt with Section 10 of the Unlawful Activities (Prevention) Act and held that mere support

to a banned organization will not by itself can become an offence.

In the present case, the Petitioner had expressed his intention very clear. He wants to send a petition to the Governor of Tamil Nadu. For this

purpose, he wants signatures from public collected from a public place. The entire exercise was to express to the Government of India through the

office of the Governor of Tamil Nadu that the people in the State are opposing the ban order imposed by the Government of India under the UAP

Act. It is not clear as to how the said activity can be either illegal or unlawful, especially in the context of the constitution guarantee given to the

citizens of India. In the counter affidavit, the stand taken by the Respondents did not justify the impugned order.

In the light of the above factual matrix and the legal precedents set out above, the impugned order has to be necessarily set aside on both

grounds, i.e., not giving an opportunity to the Petitioner herein before issuing the rejection order as well as the reasons adduced for rejecting his

request was not valid.

Since the Petitioner himself has filed a memo seeking permission to conduct the signature campaign if permitted by this Court on 30.3.2011

between 4.00 p.m and 7.00 p.m near Panagal Maligai, Saidapet, the Respondents are directed to permit the Petitioner to conduct his Signature

Campaign near Panagal Maligai, Saidapet on 30.03.2011 between 4.00 p.m. and 7.00 p.m. and also to provide sufficient protection to carry out

his legitimate constitutional guarantee.

The writ petition will stand allowed. However, there will be no order as to costs.