Tamilaga Asiriyar Koottani vs The Government of Tamilnadu

D. Murugesan, J.—Heard Mr. R. Saseetharan, the learned Counsel appearing for the Petitioner and Mr. A.L. Somayaji, the learned

Additional Advocate General appearing for the respondents. The Petitioner is the General Secretary of Tamilnadu Asiriyar Kootani. In the Writ

Petition, he prays for a Writ of Declaration, declaring the Rule 22 of the Tamilnadu Government Servant Conduct Rules, 1973 as ultravires of the

Constitution of India and null and void in so far as it prohibits the demonstrative fast and consequently the endorsement issued in No. 1307/S.B.

11/2004-1 dated 9.9.2004 by the third respondent and issue a direction to the respondents to permit the petitioner association and the members

of the JACTTEO to conduct a demonstrative fast on any of the Government holiday in a space available opposite to the State Guest House,

Chepauk, Chennai - 5 from 9.00 a.m to 5 p.m.

Pending the Writ Petition, the Petitioner has also prayed for an interim direction to the respondents to permit the members of the Petitioner

association and the JACTTEO organisation to conduct a demonstrative fast on any one of the Saturdays from 9.00 a.m to 5.00 p.m in a space

available opposite to the compound of the State Guest House. Chepauk, Chennai - 5.

The relevant Rule, which is the subject matter of the Writ Petition is as follows :

Rule 22. Strikes : No Government servant shall engage himself in strike or in incitements thereto or in similar activities.

Explanation : For the purposes of this rule the expression ''similar activities'' shall be deemed to include the absence from work or neglect of duties

without permission and with the object of compelling something to be done by his superior officers or the Government or any demonstrative fast

usually called ""hunger strike"" for similar purposes.

The learned counsel for the petitioner would challenge only that portion of the Rule viz., ""any demonstrative fast usually called ""Hunger Strike

for similar purposes"". The right to go on hunger strike is pleaded based on Article 19(a) and (b) of the Constitution of India. Reliance is placed

over the judgement of the Supreme Court reported in Kameshwar Prasad and Others Vs. The State of Bihar and Another, wherein the validity of

Rule 4 A of Central Civil Services (Conduct) Rules 1955 was considered. The Supreme Court, in paragraphs 13 and 14 has held as follows :

(13) The first question that falls to be considered is whether the right to make a ""demonstration"" is covered by either or both of the two freedoms

guaranteed by Article 19 (1)(a) and 19 (1)(b). A ""demonstration"" is defined in the Concise Oxford Dictionary as ""an outward exhibition of feeling,

as an exhibition of opinion on political or other question especially a public meeting or procession"". In Webster it is defined as ""a................as by a

parade or mass meeting"". Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible

manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one''s ideas to others to whom it is intended to

be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person

would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration

which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall

within the content of Art. 19 (1) (a) or 19 (1)(b).. A demonstration might take the form of an assembly and even then the intention is to convey to

the person or authority to whom the communication is intended the feelings of the group, which assembles. It necessarily follows that there are

forms of demonstration which would fall within the freedoms guaranteed by Art. 19 (1)(a) & 19 (1)(b). It is needless to add that from the very

nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone throwing by a crowd may be cited as

an example of a violent and disorderly demonstration and this would not obviously be within Art 19(1)(a) or (b). It can equally be peaceful and

orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.

(14) If thus particular forms of demonstration fall within the scope of Art. 19 (1) (a) or 19 (1 )(b), the next question is whether R. 4-A, in so far as

it lays an embargo or any form of demonstration for the redress of the grievances of Government employees, could be sustained as falling within

the scope of Art. 19 (2) and (3)"".

So long as the demonstration in the form of hunger strike is not disorderly and it is peaceful right to such demonstration can not be curtailed. The

Rule cannot be held to be unreasonable and ultravires of Article 19(1 )(a) and 1(b) of the Constitution as the public order (Art. 19(2) & (3) is

synonymous with public safety and tranquillity. In the above context, the challenge to the Rule should be considered.

The Learned Additional Advocate General vehemently contended that the validity of the Rule should be viewed with reference to the

applicability of the same to teachers, who are expected to inculcate discipline on the students. If the teachers are allowed to go on hunger strike,

that would give wrong signal to the students for indiscipline.

This argument is unacceptable as the Rule, as framed, does not differentiate the teachers of the Government Schools or any other Government

Servants as the same is made applicable to Government servants including the teachers. There cannot be two opinions as to the fact that the

teachers should be a model for inculcating discipline not only to the students but also the public, but that cannot be a ground to deprive their

fundamental right to express their grievance by way of hunger strike. The judgement in Kameshwar Prasad and Others Vs. The State of Bihar and

Another, ) is quoted with the approval by the Supreme Court in O.K. Ghosh and Another Vs. E.X. Joseph, . The Explanation to Rule 22 which

prohibits ""any demonstrative fast"" usually called ""Hunger strike"" is violative of the fundamental rights guaranteed under Art. 19 (a) and (b) of the

Constitution. Restriction may be only for the reasons enumerated Under Art 19 (2) and (3). A Rule which lays a total ban in every type of

demonstration, be the same however in capable of causing breach of public tranquility and does not confine itself to those forms of demonstration

which might lead to breach of tranquility is bad.

The request of the Petitioner to hold demonstration in the form of hunger strike and that too only on holidays was rejected by relying Explanation

to Rule 22; in my considered view the order of rejection is unsustainable. The respondent, Commissioner of Police is obligated to consider his

request only by taking the anticipated law and order and breach of public duty, the purpose of the Rule viz. ""Any demonstrative fast usually called

Hunger Strike"" for similar purposes are held to be ultravires of the Constitution.

In that view of the matter, the petitioner is at liberty to make a fresh representation to the third respondent Commissioner of Police seeking

permission to go on hunger strike in respect of their grievances and demands. Such representation shall be considered and orders shall be passed

by the third respondent without reference to the Conduct Rule 22 in so far it refers to any demonstrative fast usually called ""Hunger Strike"" for

similar purposes. It is needless to mention, that the third respondent, the authority to maintain the law and order shall keep in mind the anticipated

law and order and breach of public tranquility at the time the request for permission is considered. The finding as to the Rule is only for the disposal

of W.P.M.P, and respondent to advance their respective arguments in justifiable grounds. With the above direction, the Petition is ordered. Post

this Writ Petition for final hearing on 8.11.2004. In the mean time, the respondents shall file counter.