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2013 DIGILAW 736 (AP)

T. Sriranga Rao v. Director General of Police

2013-09-06

NOOTY RAMAMOHANA RAO

body2013
Judgment : 1. This petition is moved by two practicing advocates seeking a writ of mandamus for declaring Proceedings dated 03-09-2013 of the Deputy Commissioner of Police, Central Zone, Hyderabad (henceforth referred to as ‘the DCP’), granting permission to the 4th respondent – The Andhra Pradesh Non-Gazetted Officers’ Association – to hold public meeting on 07-09-2013 at Lal Bahadur Stadium, Bhasheer Bagh, Hyderabad, as illegal, arbitrary, unreasonable, without jurisdiction and contrary to the Andhra Pradesh Civil Services (Conduct) Rules, 1964 (for short ‘the Rules) and violative of the fundamental rights under Articles 14, 19(1)(d) & (g) and 21 of the Constitution of India. The petitioners are also public spirited individuals. 2. The Working Committee of the Indian National Congress Party met on 30-07-2013 and decided to request the Government of India to take steps for formation of a separate State of Telangana with a view to fulfill the longstanding demand of large sections of the people of Telangana region, their social, economic, political and other aspirations. The Government of India is yet to take a decision in that regard. But however, the 4th respondent appears to have filed an application on 20-08-2013 before the DCP requesting to grant necessary permission to conduct a meeting on 07-09-2013 from 11-00 am onwards at Lal Bahadur Stadium, Basheer Bagh, Hyderabad, to keep the State of Andhra Pradesh united. It is proposed for the said meeting to draw employees from different fields to raise their voice regarding united Andhra Pradesh. Conceding to this request, the DCP accorded the necessary permission through his Order dated 03-09-2013 for conducting “Employees Meeting” at Lal Bahadur Stadium, Basheer Bagh, Hyderabad, on 07-09-2013 from 2-00 pm to 5-00 pm, subject to the 19 conditions specified thereunder. It is this Order which gave raise to the present writ petition. 3. Heard Sri G. Mohan Rao, learned counsel for the petitioners and Sri Janaki Ram Reddy the learned Government Pleader for Home, who accepted notice on behalf of respondents 1, 2 and 3. 4. It is contended by Sri Mohan Rao that the 4th respondent Association, apprehending division of the State, is resorting to illegal activities at the behest of some powerful politicians and it has already resorted to illegal strike from 12-08-2013, literally paralyzing the public administration in Seemaandhra region. 4. It is contended by Sri Mohan Rao that the 4th respondent Association, apprehending division of the State, is resorting to illegal activities at the behest of some powerful politicians and it has already resorted to illegal strike from 12-08-2013, literally paralyzing the public administration in Seemaandhra region. Sri Mohan Rao would further contend that the actions and conduct of the 4th respondent are in direct contravention of Rules 4, 5, 17 and 19 of the Conduct Rules. It is also contended by Sri Mohan Rao that holding a public meeting amounts to conducting a political meeting and has nothing to do with the conditions of service of its members. The learned counsel would urge that the meeting is, essentially, convened for criticizing a political decision taken by a political party, which has received all-round approval from all other political parties in the State, if not the entire country. Without, in any manner, examining the true intent behind convening such a meeting by the 4th respondent, the 3rd respondent has granted permission in a mechanical manner without seriously applying his mind to various other sensitive issues relating thereto. Sri Mohan Rao would submit that a meeting of this nature will shatter the peace and tranquility of the city and is likely to lead to a breakdown of law and order situation. Therefore, the 3rd respondent should not have granted the permission to such a disguised meeting convened by the 4th respondent. From the permission accorded to the 4th respondent and while simultaneously not according any such permission to any other peace-rally or congregation intended to commemorate the sacrifices that were made on 07-09-1952, the lack of impartiality on the part of respondents 1, 2 and 3, is deducible. 5. Per contra, the learned Government Pleader for Home would submit that what the 4th respondent has urged was to conduct a meeting of the State Government employees, who could be members of the 4th respondent Association and hence, it is only an inhouse meeting. Therefore, it is improper to call such a meeting a political meeting. The learned Government Pleader has also pointedly drawn my attention to the various conditions imposed by the DCP while according permission for the meeting, which would clearly demonstrate that all necessary factors have been taken into account and consideration and hence, the permission accorded by the DCP need not be interdicted. 6. The learned Government Pleader has also pointedly drawn my attention to the various conditions imposed by the DCP while according permission for the meeting, which would clearly demonstrate that all necessary factors have been taken into account and consideration and hence, the permission accorded by the DCP need not be interdicted. 6. It will be apt to remember that certain amount of freedom in the form of rights was sought to be protected by Article 19(1) of our Constitution, which clearly sets out that; “(1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions [co-operative societies]; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) ……………….. (g) To practice any profession, or to carry on any occupation, trade or business.” 7. Article 309 of the Constitution empowered the appropriate Legislature to regulate the conditions of service of persons appointed to public offices and posts in connection with the affairs of the Union or of any State. The Proviso incorporated thereunder rendered the President or the Governor, as the case appropriately be, competent to make Rules regulating such conditions of service, until Provision in that behalf is made by or under an Act of the appropriate Legislature. The Governor of Andhra Pradesh, exercising this power, framed the Andhra Pradesh Civil Services (Conduct) Rules, 1964. Rule-2 defined the various expressions and in specific ‘Government’ has been defined in Rule-2(ii) as the Government of Andhra Pradesh and includes any subordinate authority, which may be declared by them to be Government for all or any of the purposes of these rules. Expression ‘State’ has been defined in Rule-2(vi) as meaning the State of Andhra Pradesh. Rules-4, 5, 17 and 19 of these Rules upon which strong reliance has been placed by the learned counsel for the petitioners, would read as under: “Rule 4. Strikes :- No Government employee shall participate in any strike or similar activities or incitement thereto. Expression ‘State’ has been defined in Rule-2(vi) as meaning the State of Andhra Pradesh. Rules-4, 5, 17 and 19 of these Rules upon which strong reliance has been placed by the learned counsel for the petitioners, would read as under: “Rule 4. Strikes :- No Government employee shall participate in any strike or similar activities or incitement thereto. Explanation : The expression “similar activities” shall be deemed to include- (i) absence from duty or work without permission; (ii) neglect of duty with the object or compelling any superior officer or Government to take or omit to take any official action; (iii) any demonstrative fast, like “hunger strike” with the object mentioned in item (ii); or (iv) concerted or organized refusal on the part of Government employees to receive their pay. Rule 5. Demonstrations :- No Government employee shall participate in any demonstration which is against the interests of the sovereignty and integrity of India or public order. Rule 17. Subscriptions:- Criticism of the policy or action of Government or any other State Government or Central Government:- (1) No Government employee shall, by any public utterance, written or otherwise, criticize any policy or action of Government or any other State Government or the Central Government; nor shall he participate in any such criticism: Provided that nothing in this rule shall be deemed to prohibit any Government employee from participating in discussions, at any private meeting solely of Government employees or of any association of Government employees, of matters which affect the interest of such employees individually or generally. (2) No Government employee shall, in any writing published by him, or in any communication made by him to the press, or in any public utterance delivered by him, make any statement of fact or opinion which is likely to embarrass- i. the relations between the Central Government and the Government of any State and the People of India or any section thereof; ii. the relations between the Central Government and the Government of any Foreign State. the relations between the Central Government and the Government of any Foreign State. (3) A Government employee who intends to publish any document or to make any communication to the press or to deliver any public utterance containing statements in respect of which any doubts as to the application of the restrictions imposed by sub-rule (2) may arise, shall submit to Government the draft of such document, communication or utterance and shall thereafter, act in accordance with such orders as may be passed by Government. Rule 19. Taking part in politics and elections :- (1) No Government employee shall be a member of, or be otherwise associated with, any political party or any organisation in respect of which there is slightest reason to think that the organisation has a political aspect and takes part in politics; nor shall he participate in, subscribe in aid of, or assist in any other manner, any political movement or activity. (2) It shall be the duty of every Government employee to endeavour to prevent any member of his family from taking part in, subscribing in aid of, or assisting in any manner any movement or activity which is, or tends directly or indirectly to be, subversive of the Central Government or of a State Government, being prejudicial to national security; and where a Government employee is unable to prevent a member of his family from taking part in, or subscribing in aid of, or assisting in any other manner, any such movement or activity, he shall make a report to that effect to Government. (3) Nothing in sub-rule (2) shall apply in respect of any member of the family of a Government employee standing for an election to Parliament or any House of a State Legislature or local authority or body or canvassing for other candidates in any such election. (4) If any question arises as to whether any movement or activity falls within the scope of this rule, the decision of Government thereon shall be final. (4) If any question arises as to whether any movement or activity falls within the scope of this rule, the decision of Government thereon shall be final. (5) No Government employee shall canvass or otherwise interfere or use his influence, in connection with, or take part in, an election to Parliament or any House of a State Legislature or any local authority or body: Provided that:- (i) A Government employee qualified to vote at such election may cost his vote but, where he does so, he shall give no indication of the manner in which he proposes to vote or has voted; (ii) a Government employee shall not be deemed to have contravened the provisions of this rule by reason only that he has assisted in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force. (6) The display by a Government employee on his person, vehicle, residence or any of his property, of any election symbol shall amount to using his influence in connection with an election within the meaning of sub-rule (5). (7) The provisions of sub-rules (5) and (6) shall not apply to a Government employee required or permitted by or under any law or order of Government to be a candidate at an election to a local authority or body.” 8. It is, therefore, required to discern as to whether the meeting convened by the 4th respondent would fall foul of any of these Provisions. 9. The learned counsel for the petitioners Sri Mohan Rao would submit that the meeting is convened with the object of compelling the Government to take or omit to take a particular official action. From the definitions of the expressions ‘Government’ and ‘State’, noticed supra, it becomes imminently clear that they are referable to Government of Andhra Pradesh and State of Andhra Pradesh respectively. It is common ground that no decision is taken by the Central Government nor did it solicit the opinion of the State Government either on the question of bifurcating the State. 10. Therefore, as of now, the meeting convened by the 4th respondent cannot be described as amounting to participation in any strike or “similar activities”. It is common ground that no decision is taken by the Central Government nor did it solicit the opinion of the State Government either on the question of bifurcating the State. 10. Therefore, as of now, the meeting convened by the 4th respondent cannot be described as amounting to participation in any strike or “similar activities”. It would also be apt in this context to recall that the Supreme Court in ALL INDIA BANK EMPLOYEES’ ASSOCIATION v. NATIONAL INDUSTRIAL TRIBUNAL ( AIR 1962 SC 171 ), has explained, thus; “While the right to form an union is guaranteed by sub-clause (c), the right of the members of the association to meet would be guaranteed by sub-clause (b), their right to move from place to place within India by sub-clause(d), their right to discuss their problems and to propagate their views by sub-clause (a) and so on--each of these freedoms being subject to such restrictions as might properly be exercised as proposed by clauses (2) to (6) of Art.19 of the Constitution.” 11. When the validity of Rule 4-A of Bihar Government Servants Conduct Rules, 1956, was assailed in KAMESHWAR PRASAD AND OTHERS v. THE STATE OF BIHAR AND ANOTHER (1962 AIR 1166), Ayyangar, J, speaking for the Court has explained the principle in the following words: “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 Art. 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 public exhibition by a party, sect or society......... 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 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. ………………………….. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration--be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.” 12. I would be considering it profitable in the present context to quote the following passage from the wonderful treatise of John Stuart Mill’s Utilitarianism, Liberty and Representative Government, Everyman’s Library (Everyman, I will go with thee, and be they guide, In thy most need to go by thy side):- “But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging errors for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” 13. The Constitution Bench of the Supreme Court in HIMMAT LAL K. SHAH v. COMMISSIONER OF POLICE (1973 AIR 87), dealt with the question as to the right of the citizens in India to hold public meetings and the restrictions, which can be placed on that right. Chief Justice S.M. Sikri, speaking for himself and on behalf of Justice A.N. Ray (as the learned Chief Justice of India then was) and Justice P. Jaganmohan Reddy, has set out the principle underlining the fundamental rights guaranteed under Article 19(1) in the following manner: “This takes us to points, (2) and (3) mentioned above. It is not surprising that the Constitution-makers conferred a fundamental right on all citizens 'to assemble peaceably and without arms'. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Art. 19(3). It is not surprising that the Constitution-makers conferred a fundamental right on all citizens 'to assemble peaceably and without arms'. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Art. 19(3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in Railway, Board v. Narinjan Singh (1) that there is no fundamental right for any one to hold meetings in government premises. It was observed : "The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please." This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. This Court in Babulal Parate v. State of Matharashtra (2) rightly observed : "The right of citizens to take out processions or to hold public meetings flows from the right in Art. 19(1) (b) to assemble peaceably and without arms and the right to move anywhere in the territory of India." If the right to hold public meetings flows from Art. 19 (1) (b) and Art. 19 (1) (d) it is obvious that the State cannot impose unreasonable restrictions. It must be, kept in mind that Art. 19(1)(b), read with Art. 13, protects citizens against State action. ……………………..” 14. Mathew, J, while agreeing with the conclusion of the learned Chief Justice, in his independent opinion, has set out as under: “Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems-religious, political,, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems-religious, political,, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the 'natural' places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre- Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore., the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city's function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks' with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly.” 15. The real problem is that of reconciling the city's function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks' with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly.” 15. It would also be extremely profitable to notice the words of wisdom spoken to by Lord Bridge of Harwich in his opinion rendered in HECTOR v. ATTORNEY GENERAL OF ANTIGUA & OTHERS ((1990) 2 AC 312): "In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing a statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion." 16. When we apply the above noted principles on the subject to the fact situation prevailing on hand, it emerges that the 4th respondent is not participating in any “similar activities”, as set out in Rule 4, while conducting an in-house meeting, as no decision is required to be taken by the State Government of Andhra Pradesh in the matter of bifurcation of the State. Nor can the intended meeting of the 4th respondent-Association be described as against the interests of the sovereignty and integrity of India or Public Order, for it to be declared as contravening Rule 5. When once no decision has been taken by the Central Government on the principal issue so far, the prohibitions contained in Rule 17 would not spring to life. Similarly, conducting a meeting of employees, would not amount to becoming a member of a Political Party or organization, for Rule 19 to get attracted. 17. What the 4th respondent intended to hold is an exclusive meeting of the employees drawn from different fields. Similarly, conducting a meeting of employees, would not amount to becoming a member of a Political Party or organization, for Rule 19 to get attracted. 17. What the 4th respondent intended to hold is an exclusive meeting of the employees drawn from different fields. It is expected that approximately fifteen thousand employees would be attending the said meeting. The DCP, in Condition No.6 imposed in the impugned order, has clearly mentioned that only employees with valid identity cards will be allowed entry into the venue of the meeting. It was also specified that the organizers shall make arrangements with volunteers for identifying the employees attending the meeting and also watch for carefully to identify suspicious persons, if any. In Condition No.2, it was made abundantly clear that no disturbance to law and order, peace and public tranquility and the communal harmony in the city shall be disturbed at all and the organizers will be held responsible for the damage and destruction of any private or public properties consequent of the meeting. Obviously, the DCP has taken into account and consideration the possible presence of the mischievous elements in the society, who will be out to cash on the situation and disturb the tranquil atmosphere of the city and the rich traditions of maintaining communal harmony, the city is also famous for. 18. I am confident that the 4th respondent and in particular the Police machinery would be careful enough to prevent any such mischievous elements gaining ground or attempting to disturb the public order and peace prevailing in the city and they would be dealt with sternly. The peaceful demonstration of expression of the voice of the Government employees cannot, therefore, be prevented from occurring at all. The 4th respondent will, therefore, take necessary steps to see to it that no person other than the government / public servant participates at the said meeting and no attempt to destroy / cause damage to private or public property is attempted at all. Further, as the learned Government Pleader pointed out the State’s Police machinery is fully geared up to maintain and preserve the Law and Order situation. 19. Further, as the learned Government Pleader pointed out the State’s Police machinery is fully geared up to maintain and preserve the Law and Order situation. 19. I, therefore, do not see any legal infirmity in the Proceedings dated 03-09-2013 of the Deputy Commissioner of Police, Central Zone, Hyderabad, granting permission to the 4th respondent to hold public meeting on 07-09-2013 at Lal Bahadur Stadium, Bhasheer Bagh, Hyderabad, and hence, dismiss the writ petition at the admission stage, but however without costs.