New Delhi, March 1.
The Madras High Court recently ruled that right to demonstrate was part of right to free speech and the right to assemble peacefully without arms, and cannot be taken away completely while allowing the RSS to hold marches and meetings in many places of Tamil Nadu in 2022.
“… there is a constitutional difference between reasonable regulation and arbitrary exclusion,” a division bench of the High Court, comprising Justices R. Mahadevan and Mohammed Shaffiq, ruled while giving permission to the RSS to hold peaceful marches outside.
A single judge had in an order of Dec 4, 2022, permitted them only to hold meetings and assemblies indoors in stadia and grounds etc. The RSS functionaries went to a division bench against the order.
That apart, the High Court division bench said, the ideology of every organization or political outfit in the state need not be identical or acceptable to another.
Permission cannot be denied if outfit has a different ideology
“Just because, there are other outfits that have a different ideology, the permission sought cannot be denied. The decisions of the state must be in public interest rather than on ideology and political understanding and affiliation.”
The state government has since filed an appeal against the order in the top court.
Appeal in SC to be heard on March 3
It will now be heard on Friday, March 3, the last working day of the court before it shuts down for a week for Holi, Chief Justice of India D.Y. Chandrachud assured the state government, which mentioned the case through senior advocate Mukul Rohatgi.
Though technically the court’s Holi break is from March 6 to 11, since the court doesn’t sit on both Saturdays and Sundays the effective break will be for 10 odd days.
The Madras High Court judgement among other things states that the word “expression” under Article 19 (1) (a) is exhaustive and encompasses within it the meaning “demonstration”.
“Demonstration could be either by use of speech or otherwise. A mere assembly of persons at a particular place to express their solidarity with an ideology or for common cause, even without use of any language can amount to demonstration, which of course will then fall under Article 19 (1) (b) of the Constitution.
Fundamental right to hold processions, meetings at public places
“… it is very clear that it is within the fundamental right of the organization to conduct such processions at public places including public roads and meetings….”
Right to assemble peacefully without arms
“Likewise, Article 19(1)(b) gives the right to assemble peacefully and without arms.
“Together, these rights ensure that people of this country have the right to assemble peacefully and protest against any of the actions or the decisions taken by the government or other governmental authorities which are not to the liking.
Legitimate dissent feature of democracy
Legitimate dissent is a distinguishable feature of any democracy, it said.
“Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority.”
“They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this court has always protected the valuable right of peaceful and orderly demonstrations and protests.”
Public meeting in open spaces and public streets forms part of the tradition of our national life, the High Court said.
In the pre-Independence days such meetings have been held in open space and public streets and the people have come to regard it as a part of their privileges and immunities, it said.
State has monopoly over public spaces, if access is denied, it would be impossible to hold meetings
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, it said.
The real problem is that of reconciling the city’s function of providing for exigencies of traffic in its streets and 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, it said.
Is the state entitled to restrict such processions and meetings? Even though the State has the right to impose restrictions, it cannot prohibit them totally, but only impose reasonable restrictions.
State can’t deny rights under guise of fresh intelligence input
Since the organization has the right to conduct peaceful procession and meetings in public places, the state under the guise of new intelligence input, cannot impose any condition which has the effect of perpetually banning or infringing the fundamental rights of the organization.
“… it is the duty of the state to maintain law and order situation. It is also the bounden duty of the state to provide adequate security to a lawful claim and to ensure that the fundamental rights guaranteed under the Constitution are not abridged.”
The RSS will commemorate the 75th year of Independence, the birth centenary of Bharat Ratna Dr. B.R. Ambedkar and Vijay Dasami on Gandhi Jayanti and its cadres will hold marches and meetings in their uniform (dark olive-green trousers, white shirt, cap, belt, black shoes) through various routes and specified times throughout the state.
The state government had said that this fell on a Sunday in which there would be large gatherings in churches. Even otherwise, most of the routes ran through Muslim-dominated areas where mosques are located and if the processions are allowed, there is every likelihood of communal confrontations.
Some of the places chosen by the organisers were in a narrow street and would result in traffic snarls and hardship to the general public. Other places fell within the prohibited zone not fit for granting permission to conduct processions, it said.
Besides, certain political parties such as Viduthalai Chituthigal Katchi, CPI and CPM were also holding a “Human Chain Programme” on that day and it would be difficult for the state to maintain law and order if the RSS were to be given permission to conduct meetings and processions the dame day.
The state also contested the RSS stand that there were no law and order problems when it took out such processions in other states.
In fact, on 12.10.2022, when such a procession was taken out at Haveri District, Karnataka, unrest prevailed, it said. Similarly, various such other incidents were reported from across the country when processions were carried out by the RSS. In one such procession, petrol bombs were hurled against the organisers and allied political parties.
These claims were denied by the RSS. The outfit claimed that even if prohibitory orders were in force grant of permission for convening an assembly, was the rule and refusal the exception.
The provisions do not confer any power upon the police to issue an order prohibiting any assembly or procession. It merely enables the District Superintendent of Police to require, by a general or special note, all persons who want to hold an assembly or organise a procession, to apply for a licence, it said.
The state government told the division bench among other things that of the 50 places for which permission was sought for public meetings only three places were granted.
In 23 places, the RSS was permitted to conduct procession/public meeting indoors. In 24 other places, the authorities refused permission on the ground that there would be a law and order issue.
