Madras High Court: In various Letters Patent Appeals (‘LPA') filed under Clause 15 of the Letters Patent to set aside order passed by a Single Bench in contempt petitions (‘CP'), wherein previous directions issued for holding public procession by appellants were altered, the Division Bench of R. Mahadevan* and Mohammad Shaffiq, JJ., while setting aside the same , directed the appellants to approach the State authorities with three different dates of their choice for the purpose of holding the route-march/peaceful procession and further directed the State authorities to grant permission to the appellants on one of the chosen dates out of the three.
It also directed the organisation shall ensure that strict discipline is followed at their end and that there is no provocation or incitement on their part. Further, the State must take adequate safety measures and make traffic arrangements to ensure that the procession and the meeting shall go on peacefully.
Background
The appellants are members of Rashtriya Swayamsevak Sangh (‘RSS') and had approached the respondents i.e. the State of Tamil Nadu, to seek permission for holding a procession throughout the state, on 02-10-2022 to commemorate 75 years of Independence.
The appellants filed a writ petition (‘WP') for issue of writ of Mandamus for the same, placing reliance on Section 41(A) of the Chennai Police Act, 1988 (‘CPA, 1988') and Section 30(2) of the Police Act, 1861 (‘PA, 1861'), and contended that the non-consideration of their applications by concerned state authorities was unlawful.
A Single Bench disposed of the WP and issued directions in order dated 22-09-2022 to the respondents for issuance of permission to appellants to hold procession on the requested date and cautionary measures to be taken by both parties during the procession.
The respondents filed a review application against the order, stating concerns of a law-and-order situation on the aforementioned date. Meanwhile, the appellants filed a CP under Contempt of Courts Act, 1971 (‘CC Act, 1971') against the respondents before the same bench for disobedience of the order issued in the WP.
The Single Judge disposed of the CP and passed an order on 04-11-2022, wherein nature of permission was modified i.e. appellants were allowed to hold meetings only in compounded and indoor places, and not in open spaces. Aggrieved by the same, the appellants filed multiple LPA before the Division Bench of the Court.
Issues and Analysis
(i) Whether the appeal is maintainable under Clause 15 of the Letters Patent against order passed in exercise of contempt jurisdiction, and whether the order appealed in present LPA is a “judgment” in nature i.e. it finally decides the rights of the parties in the Contempt Petition ?
The Court found the question of maintainability of an LPA as against the order passed in a contempt petition had been answered in Arumuganianar v. Jeenath Roadways, 2005 SCC Mad 637, wherein the Madras High Court opined that there is nothing whichpostulates that the appeal under Clause 15 of the Letters Patent would be barred merely because the impugned order in the contempt petition is not appealable under Section 19 of CC Act, 1971
Further, the Court also found it relevant to note the decision in Shantha v. Pai v. Vasanth Builders, Madras, 1990 SCC Online Mad 389, wherein the ambit of Clause 15 of Letters Patent vis-à-vis the dismissal of a contempt petition was considered and it was said that the expression “Judgment”, within the meaning of clause 15 of the Letters Patent, implies an order which effectively decides some right or liability in controversy between the parties to the main proceedings, irrespective of the fact whether such an order is final or made at any interlocutory stage.
The Court said that the LPA would lie under Clause 15 against the order passed in the contempt jurisdiction ,if the decision is a “judgement” determining the rights of the parties one or the other, except when there is a dismissal simpliciter of the contempt petition on the ground that no wilful disobedience of the order in respect of which contempt petition is preferred.
Further, it said thatwhile the State was at liberty to defend its case to prove there was no wilful disobedience, it was not open to the Single Judge to alter the foundation of the decision passed in WP and sit in appeal over his own order.
In addition, the Court noted that the Single Bench dismissed the review application by the respondents, and said that such modification directly had an effect of determining the main issue, as well as, rights of both parties in finality. Thus, the aforementioned order would qualify the test for “judgment” under the Letters Patent.
The Court took note of Midnapore Peoples Cooperative Bank v. Chunilal Nanda, (2006) 5 SCC 399 and said even when the order in the contempt proceedings were not determinative of final rights of the parties, yet, when it decides the effect of finally determining the issue in the main case, it is to be treated as ‘judgment’ for the sustainability of the appeals under the Letters Patent.
The Court held that the present appeals are maintainable in law and the order under appeal determines the rights of the parties on account of being a “judgment”. Therefore, it would fall within the ambit of Clause 15 of the Letters Patent.
(ii) Whether the order passed in contempt petition was correct and lawful?
The Court said that it is apparent that the order passed in the WP contrasted with the order passed in the contempt petition for the non-compliance of the former, asit denied permission to appellants for holding processions in open spaces as well as barred 6 places from the list of requested venues.
The Court noted that the Single Judge had altered his decision made in the WP based on application of fresh facts presented by the respondents in review applications, virtually sitting in appeal of his previous order. Moreover, the Court said if the order had to be modified, it should have been done in exercise of jurisdiction under the review application filed by the respondents and not under the ambit contempt jurisdiction.
The Court said the updated facts clearly indicated wilful disobedience of the order passed in the WP by the respondents. As a result, the CP should have been decided within the precincts of these facts.
Placing reliance on Union of India v. Subedar Devassy PV, (2006) 1 SCC 613, the Court said it is trite law that in a contempt jurisdiction, the Court must concern itself with compliance or disobedience of order passed in the WP and emphasised that it cannot enlarge the scope of such order, nor can it restrict or curtail the rights of the parties already granted.
The Court held the appeals to be maintainable under law and that the order passed in WP had been fundamentally modified by the order passed in the CP, the effect of which resulted in a veiled attempt to sit in judgment/appeal over the order passed in the WP, which is not permissible in law.
(iii) Whether the denial of permission by the State authorities had violated the fundamental rights of the appellants vis-à-vis Article 19 of the Constitution?
The Court noted that the assembly of persons at a particular place to express their solidarity with an ideology or for a common cause even without the use of any language can amount to demonstration, which would fall under the ambit of Article 19 (1) (b) of the Constitution. Therefore, the fundamental right of an organisation includes the right to conduct such processions at public spaces including public roads.
The Court said that even though the State has the right to impose restrictions, it cannot prohibit them totally, but only impose reasonable restrictions. The State cannot under the guise of new intelligence input. seek to impose any condition which has the effect of perpetually banning or infringing the fundamental rights of the organisation citing law and order problem, after the order passed in the writ petitions, which attained finality.
The Court said the State authorities must act to uphold fundamental right to freedom of speech, expression and assembly as it is the most sacrosanct right of our Constitution. Further, the Court said that the State’s approach must not be adversarial towards citizens’ rights in a Welfare State and granting permission for peaceful rallies, protest etc. must be considered in order to maintain a healthy democracy.
Thus, the Court set aside the impugned order passed in the contempt petitions, and restored the order passed in the writ petitions.
[G. Subramaniam v. K. Phanindra Reddy, 2023 SCC OnLine Mad 720, decided on 10.02.2023]
*Judgment authored by: Justice R. Mahadevan
Advocates who appeared in this case :
For Appellants: Senior Advocate N.L. Rajah, Senior Advocate G. Rajagopalan, Senior Advocate S. Ravi; Advocate Karthikeyan, Advocate B. Rabu Manohar.
For Respondents: Senior Advocate N.R. Elango; Additional Public Prosecutor E. Raj Thilak; Government Advocate V.J. Priyadarsana , Government Advocate S. Balaji.