DEJO KAPPEN Vs. STATE OF KERALA

JUDGEMENT

(1.) The short question arising in these writ petitions filed in public interest is whether the judgment of this court confirmed by the Honourable Supreme Court prohibiting holding of meetings on public roads and road margins as violative of fundamental rights of the citizens guaranteed under Article 19(1)(d) of the Constitution of India can be got over through State legislation and when the State has made such a legislative invasion on the fundamental rights of the citizens of the country, shouldn't this court declare such law as unconstitutional and stillborn under Article 13(2) of the Constitution of India. The background of the impugned legislation and the developments that led to this second round of litigation to protect fundamental rights of the citizens of the State are stated below in brief. Public meetings were held frequently by erecting panthal and by spreading chairs on tarred road in the junction in front of the Aluva Railway Station which is just opposite to the State Road Transport Bus Station causing road block for long time and preventing public access even to the Railway Station. A local resident filed a public interest litigation which was allowed by this court by declaring that holding of public meeting on public road and road margin as illegal and violative of the fundamental rights of the citizens and the said judgment rendered in KHALID MUNDAPPILLY Vs. EXECUTIVE ENGINEER & OTHERS is, 2010 3 KerLT 86. In fact the instruction from the Inspector of Police stating that the holding of public meeting on public road at Aluva is undesirable as it leads to long time traffic block and even prevents people's entry to the Railway Station and the Police cannot manage the situation was not brought to the notice of this court. Strangely, inspite of this stand of the Police and the declaration of the illegality in permitting meetings on public road and road margins in violation of the fundamental rights of the traveling public, the State filed a Review Petition wherein several public interest litigants also got impleaded as additional respondents and opposed the Review Petition filed by the State and prayed for sustaining the law declared by this court in the judgment in the above said Writ Petition. This court vide judgment in CHIEF SECRETARY TO GOVERNMENT & OTHERS Vs. KHALID MUNDAPPILLY & OTHERS :, 2010 3 KerLT 757dismissed the Review Petition upholding the law declared in the judgment, simultaneously prohibiting the Police, P. W. D. and State authorities from granting any permission to hold public meetings on public roads and road margins. These two judgments of this court were taken up by the State in S. L. P. (C) No. 35169/2010, which was dismissed by the Honourable Supreme Court by order dated 6.1.2011. Even though the Honourable Supreme Court dismissed the S. L. P. by a single sentence order, Media reported that the matter was seriously contested by the State by engaging distinguished lawyers who even tried to convince the Supreme Court that the notoriously narrow Kerala roads admit space for holding public meetings. However, the Bench consisting of Honourable Mr. Justice H. L. Dattu who was Chief Justice of Kerala for over one and a half years being very familiar with the road conditions and the traffic blocks in Kerala, could not be convinced is the report of the Media. In any case fact remains that the State could not even get admission for their Special Leave Petition filed against the judgment, which was summarily rejected by the Supreme Court. The position that emerges after the dismissal of the S. L. P. by the Supreme Court is that the declaration made by this court in the judgment holding that all public meetings on public roads and road margins as illegal and violative of the fundamental rights of the traveling public conferred under Article 19(1)(d) stands endorsed by the order of the Honourable Supreme Court. In fact, ever since the first judgment which was rendered on 23.6.2010, there has been general compliance in the State in as much as public meetings on public roads and road margins were not permitted until the State authorized it through a subsequent legislation namely, the Kerala Public Ways (Restriction of Assemblies and Procession) Act, 2011 (hereinafter called "the Act") which came into force in the State from 18.2.2011. Contempt Case(Civil) No. 1041/2011 was filed in this court by the petitioner in the W. P. (C) which led to the above referred two judgments of this court producing Newspaper cuttings and photographs showing holding of public meetings by a political party on public road in violation of the judgment. When the Contempt Case came up before this Bench on 2.11.2011, we were informed of the permissions being granted for holding public meetings on road side under the Act, but in flagrant violation of the judgment confirmed by the Honourable Supreme Court. At that time the very same Bench (presided over by C. N. R. (J), as Acting Chief Justice) had the jurisdiction to hear public interest matters and the Bench in exercise of it's jurisdiction in public interest matters, initiated suo moto proceedings and issued notice to consider constitutional validity of the provisions of the Act which was enacted basically to get over the law declared by this court and confirmed by the Supreme Court. In fact, simultaneous with the initiation of proceedings to consider constitutional validity, this court suo moto granted stay against operation of the provisions of the Act authorizing grant of permission to hold public meeting on public road and road margins in violation of judgments above referred. Thereafter interim applications were filed by the petitioners in these two Writ Petitions who were additional respondents in the first round litigations defending the judgments and opposing the provisions of the Act. Since these interim applications filed in the Contempt Case were in the nature of challenge against the constitutional validity of the Act passed in violation of the law declared by this court and confirmed by the Supreme Court, we permitted the impleading petitions filed in the Contempt Case to be numbered as writ petitions in public interest and allowed the petitioners to produce paper books with the Contempt petitioner, who was the petitioner in the first round litigation that led to the two judgments of this court, as an additional petitioner and the State as a respondent. The stay order issued by this court against operation of the provisions of the Act for granting permission to hold public meeting on public roads and road margins was again extended and is continuing even now. Inpsite of wide publicity for the interim orders restoring the status quo ante i. e the position declared by this court and confirmed by the Supreme Court against granting of any more permission for holding public meetings on public roads and road margins, only the All India Lawyers Union represented by it's High Court Unit filed an impleading application supporting the State to sustain the provisions of the Act enacted essentially to get over the judgments of this court.

(2.) We have heard Adv. Sri. Johnson Manayani, counsel appearing for the first petitioner in, who was a respondent in the first round of litigation, Adv. Sri. Baisil Attipetti, the first petitioner in person in W. P. (C) No. 32428/2011, Adv. Sri. T. R. Rajan appearing for the second petitioner in the W. P. (C)s. who was the petitioner in the first round of public interest litigation which led to the above referred judgments of this court, Adv. Sri. Peeyus A. Kottam appearing for additional respondent who is a social worker impleaded in W. P. (C) No. 32429/2011 supporting the petitioners in the challenge against the Act and also Advocate General Sri. K. P. Dandapani appearing for the State and Adv. Sri. P. V. Surendranath appearing for the All India Lawyers Union, the second respondent. We have also perused the argument notes and documents filed by the petitioners, the State and the additional respondent.

(3.) We have to first consider maintainability of the two writ petitions raised by the second respondent impleaded namely, the All India Lawyers Union and the objections raised by the petitioners about the right of the All India Lawyers Union to support the legislation which is enacted to neutralize the law declared by this court protecting fundamental rights of citizens which is upheld by the Supreme Court. It is very unusual or rather unprecedented for this court to suo moto initiate proceedings to consider constitutional validity of a State legislation in a Contempt Case. However, Sri. T. R. Rajan, counsel for the petitioner in the Contempt application who was later allowed to be impleaded as second petitioner in one of the W. P. (C)s. defended the action of this court by stating that this court while considering the Contempt Case has not only the authority but the duty to prevent repetition of violation of the judgment which was possible in this case by staying the operation of the provisions of the Act because only under the provisions of the Act, the Police authorities were granting permissions to hold public meeting on public roads in violation of the judgment. We are in complete agreement with this contention because in an application for contempt the court has to first consider whether there is prima facie contempt and whether there is likelihood of it's repetition. Before proceeding to take action for contempt, the first step a prudent court should take is to prevent further violation of the judgment which is exactly what we have done by staying the operation of the provisions of the Act which authorized Police authorities to give permission to hold meetings on public roads which is done by erecting panthals and by spreading chairs on tar road either blocking traffic or partially obstructing traffic. Further, as already stated, the Bench before which the Contempt Case came on 2.11.2011 had the jurisdiction to consider public interest matters and in that jurisdiction only we permitted the impleading applications filed in the Contempt Case, which are basically challenging the provisions of the Act, to be numbered as public interest litigations wherein the All India Lawyers Union was impleaded as the only party supporting the State legislation other than the State. The petitioners also rightly pointed out that the suo moto proceedings initiated by this court had become redundant because the impleading applications filed by the petitioners in the Contempt Case were permitted to be numbered as public interest litigations challenging the provisions of the Act. The additional second respondent impleaded cannot question the right of the petitioners who were parties in the original judgments of this court, to challenge provisions of the Act which is exactly the issue now before us. We, therefore, do not find any merit in the objection raised by the second respondent about the jurisdiction of this court to consider public interest litigations on merit. The three petitioners in the two writ petitions have raised serious objection against the right of the second respondent which is the High Court Unit of the All India Lawyers Union to challenge the law declared by this court and confirmed by the Supreme Court in the two judgments and to support the Act which is made to get over the judgments. In this regard they have relied on the Constitution Bench decision of the Supreme Court in HARISH UPPAL Vs. UNION OF INDIA, 2003 1 KerLT 192 (SC) and another decision of the Supreme Court in O. P. SHARMA & OTHERS Vs. HIGH COURT OF PUNJAB AND HARYANA, 2011 6 SCC 86 and contended that the Advocates have a duty to uphold the law declared by Higher courts and they should not promote or support violation of judgments and support legislation made to achieve the said object. We have to consider this contention with reference to the ground realities at least in Kerala where every political party has a Lawyers Unit as well. Therefore, if political parties shy away from being parties for fear of public resentment or loss of popularity, probably lawyers' wings come to their rescue and they take up the cause of the politicians. The second respondent namely, the All India Lawyers Union does not claim that they have ever held any meeting on public road or they ever propose to hold any such meeting, but still they are the only party which has come to rescue a State legislation made to neutralize the judgments of this court upheld by the Supreme Court upholding the fundamental rights of citizens conferred under Article 19(1)(d) of the Constitution. Even though we do not find any grievance for the second respondent even if this court declares any provision of the Act as unconstitutional, still we permitted the second respondent to impaled along with the State as a party in both W. P. (C)s. and proceed to consider the W. P. (C)s. on merit. In order to consider the constitutional validity of the provisions challenged in the W. P. (C)s. we have to necessarily refer to the relevant provisions of the Act, which are extracted hereunder.