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2019 DIGILAW 3495 (MAD)

Varaaki v. Chief Secretary, Secretariat, Chennai

2019-12-22

P.T.ASHA, S.VAIDYANATHAN

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JUDGMENT : S. Vaidyanathan, P.T. Asha, JJ. (Prayer in WP: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ of Mandamus, forbearing the respondents herein from giving any kind of permission to the unlawful demonstration to be conducted on 23.12.2019 by the Opposition Parties in the State of Tamil Nadu. Prayer in WMP: To grant an order of interim injunction restraining the opposition Parties in the State of Tamil Nadu from proceeding with the unlawful Demonstration to be conducted on 23.12.2019, pending disposal of the Writ Petition.) Prayer in WP: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ of Mandamus, directing the 15th and 16th respondents not to permit the 1st to 13th respondents to conduct the scheduled rally/procession/protest on 23.12.2019 as against the Citizenship (Amendment) Act, 2019 since the same kind of held procession in Delhi, Karnataka, U.P., Assam turned violent and affected the Normal Tempo of life, in the larger interest of public, public properties and to protect the law and order on the basis of The Newspaper Report published in Dinamalar Tamil Daily dated 21.12.2019.) The Writ Petition in W.P.No.35713 of 2019 is admitted. Notice. The petitioners seek to forbear the respondents herein from giving any kind of permission to the unlawful demonstration to be conducted on 23.12.2019 by the Opposition Parties in the State of Tamil Nadu. 2. When the matters are taken up for hearing, it is represented by the learned Government Pleader that the respondents in W.P.No.35713 of 2019 have made an application on 18.12.2019, seeking permission from the Police for conducting demonstration on 23.12.2019 and on 19.12.2019, the Police sought for certain information from the applicant regarding the number of persons participating in the rally and the name of the person, who is going to take the responsibility in case of any untoward incident and destruction of public property. To the information sought for by the Police, a reply was sent by the respondents stating that some of the questions are not at all applicable to the present situation, thereby they have given evasive answers to the queries raised in Sl.Nos.9, 10, 14 to 16. The answer in vernacular is XXXX 3. To the information sought for by the Police, a reply was sent by the respondents stating that some of the questions are not at all applicable to the present situation, thereby they have given evasive answers to the queries raised in Sl.Nos.9, 10, 14 to 16. The answer in vernacular is XXXX 3. The evasive manner in which a responsible political party has answered the queries gives rise to a doubt in the mind of the Court that the leaders, who are spearheading the agitation are reluctant to take responsibility in the event of any damage to the public property or any untoward incident. 4. The evasive response to the queries has made the Police to reject the request of the applicants vide order dated 22.12.2019 in No.1373/TP2/2019. The rejection order dated 22.12.2019 has not been challenged by the respondents in W.P.No.35713 of 2019. However, the petitioners apprehend that there may be untoward incident, if the respondents, defying the rejection order, proceeds to conduct the demonstration/protest and they, therefore, seek to forbear the respondents from giving any kind of permission to the unlawful demonstration to be conducted on 23.12.2019 by the Opposition Parties in the State of Tamil Nadu. 5. In a democratic country, a peaceful demonstration cannot be prevented, as it is the backbone of the democratic set up. From the reply given by the respondents, it could be seen that the political party, which is scheduled to conduct the rally/procession/protest, is reluctant to take on responsibility. However, according to us, the queries raised by the Police are indeed very relevant to the present case on hand in the light of the judgment of the Hon'ble Supreme Court in the case of Destruction of Public and Private Properties vs. State of A.P. and Others, reported in AIR 2009 SC 2266 , in which the Hon'ble Supreme Court has stated as follows: “Next we considered how far the leaders of the organizations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organizations. Destruction of public property has become so rampant during such direct actions called by organizations. Destruction of public property has become so rampant during such direct actions called by organizations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair.” This judgment has been followed in Kodungallur Film Society and Others, reported in 2019 (4) SCJ 703. 6. Admittedly, the request of the Political Party has been declined and no one has as of now challenged the said rejection order dated 22.12.2019. When this Court posed a question that in case the scheduled agitation takes place, despite the rejection order, the learned Government Pleader has stated that the State machinery will take care of the same and the Police will certainly prevent such procession and take adequate measure so as to ensure that law and order is maintained. 7. Though the reply given by the Government Pleader is convincing, we do not want to play with the life of innocent people in case of any untoward incident and it is the duty of the Court to protect every citizen of the State in the light of the judgment of the Hon'ble Supreme in the case of Destruction of Public and Private Properties vs. State of A.P. and Others (cited supra). 8. Hence, as an interim measure, in the event of the political parties proceeding with the agitation “DESPITE REFUSAL” there shall be an interim direction to the Police that the entire area, including the diverted area as found mentioned in the pamphlet of the respondents (it was not originally indicated in the application made by them), for which the permission for procession is sought should be videographed and the drone technology can also be used for the purpose of recording the demonstration so that the liability can be foisted on the leaders and not on the followers. Notice. Post on 30.12.2019.