In the High Court of Judicature at Madras
(Special Original Jurisdiction)
W.P. No. 7520 of 2012
P.Pugalenthi,
Advocate
No.5, 4th Floor,
Sunkurama Street,
Chennai.600 001 .. Petitioner
Vs
1) State of Tamil Nadu
represented by the
Chief Secretary to Government,
Secretariat,
Chennai.600 009
2) The District Collector,
Tirunelveli District
Tirunelveli.
AFFIDAVIT
I, P.Pugalenthi, S/o Pandian, aged about 36 years, residing at No.97, Bangaru Street, Ellis Road, Anna Salai, Chennai.2, do hereby on solemn affirmation, state as under:
1.. I am the petitioner herein. I am conversant with the facts of the case. I am competent to file this affidavit.
2.. I submit that I am an advocate having a standing of about 10 years. I am also the Director of the Prisoners Rights Forum, Chennai which is a registered public trust (Regn. No.4319/2008). I am the Secretary of Tamil Nadu Peoples Rights Forum which is a human rights organization. I have initiated a number of Public Interest Litigations before the Hon’ble Court concerning enforcement of human rights, fundamental rights and Constitutional rights of the citizens as well as the foreigners. In the Writ Petitions filed by me in public interest , the Hon’ble High Court has been pleased to pass several orders directing the State to discharge its public duty in tune with the command of the Constitution. To cite an instance, when a woman prisoner was tortured in Vellore Central Prison, I rushed to the Hon’ble Court with a Writ Petition for the purpose of enforcement of her rights under Article 21 of the Constitution and the Hon’ble High Court was pleased to award the woman prisoner a compensation of Rs.50,000/- for the injuries suffered by her at the hands of prison officials and was also appreciative of my efforts to bring to light the ghastly incident which had taken place inside Vellore Prison.
3. I state that “The Hindu” dated 20 March 2012 reported that a prohibitory order under Section 144 C. P.C. was clamped on Radhapuram Taluk, Tirunelveli District. Radhapuram Taluk comprises about 50 villages. According to the press reports the prohibitory order would remain in force until 2nd April 2012. The order was passed by respondent No.2 only with a view to preventing the villagers of the entire Radhapuram Taluk from moving from one place to another. In other words, thousands of people residing in those villages of Radhapuram taluk have been virtually under house arrest since yesterday. Hence this Writ Petition in public interest for a direction to the State of Tamil Nadu to immediately lift the prohibitory order passed under section 144 Cr. P.C. and allow the people of Radhapuram Taluk to move freely on the following amongst other grounds.
GROUND
a) It is submitted that the “Wise Indian Chief of Seattle” (USA) once replied to the “Great Wise Chief in Washington” when he offered to buy the land of native Red Indians. “Every part of the earth is sacred to my people, every shiny pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.” The people of almost 50 villages of Radhapuram Taluk have today lost their villages, lost their land, and lost every amenities of life because they are made incapacitated to move from one place to another. It is no exaggeration to say that Radhapuram Taluk has gone out of the map of India today. One would recall the colonial days when people were not allowed to move freely and were treated like slaves at the command of the State. The press reports and visual media reports appearing today are an indication that the women folk and the children are afraid of the huge police force deployed in and around Idinthakarai village and they are unable to go even to buy Milk. Their day today life is in danger. They are scared of the police personnel numbering more than 5000. The respondent – State of Tamil Nadu has no justification whatsoever to deploy large number of police personnel in and around the villages of Radhapuram Taluk. The Supreme Court has in Gulam Abbas and others vs State of UP and others : AIR 1981 SC 2198 held :
“The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions, and annoyances with a view to secure the secure the public weal by maintaining public peace and tranquility. Preservation of public peace and tranquility is the primary function of the government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the executive magistrate to override temporarily private rights and in a given situation the power must extend to restraining individual from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private interest the former must prevail.”
Here, in the case of Radhapuram Taluk, respondent No.2 has, in the guise of exercising his powers for maintaining public peace and tranquility, deprived the people of Radhapuram Taluk of their basic and most valuable fundamental right to move freely from one place to another. Under Section 144 Cr. P.C., private rights of the people can be curtailed by the executive magistrate, certainly not fundamental rights of the people. Preventing people from moving from one place to another can never fall within the realm of reasonable restriction. When an authority of the State prevents a person from moving from one place to another the authority concerned is virtually arresting that person and does not allow him to move for no fault of his. All the people of Radhapuram Taluk are today under house arrest by virtue of a single order by respondent No.2 passed under Section 144 Cr. P.C. No material whatsoever was disclosed by the respondent – State of Tamil Nadu to the people of Radhapuram Taluk explaining the necessity of imposing this unreasonable restriction on the people’s movement from one’s house from other places. Since the prohibitory order under Section 144 Cr.P.C. operative today in the entire territory of Radhapuram Taluk is in gross violation of Article 21 of the Constitution, the order cannot be allowed to stand even for a moment and deserves to be declared by the Hon’ble Court to be null and void.
b) It is submitted that more than 3000 people, largely women who are participants in the protest against commissioning of Koodankulam Nuclear Power Plant in Idinthakarai village including the children who came to meet their parents near the place of protest have no option but to remain in the place of protest without food and other basic amenities. Admittedly the protest which is alleged to be posing a threat to public peace and tranquility is a non-violent protest. No untoward incident whatsoever has so far been reported from any corner. The protest has been going on for months together. Even the Chief Minister of Tamil Nadu was pleased to meet the representatives of the protestors including Advocate Sivasubramaniam, now arrested on charges of sedition, not long ago and considered their legitimate grievance against the dangers of nuclear power plant. Respondent No.2, who has now exercised his powers under Section 144 Cr. P.C. never found that the protestors were ever the cause of any unrest in the society. There is no reason whatsoever why a prohibitory order under Section 144 Cr. P.C. should have been clamped on the entire Radhapuram Taluk. Instead of giving adequate protection to the people living in about 50 villages of Radhapuram Taluk, and instead of allowing them to enjoy their fundamental rights guaranteed under the constitution the respondent- State of Tamil Nadu has made them prisoners. Therefore, the prohibitory order under Section 144 Cr. P.C. deserves to be declared null and void.
c) It is submitted that until the conclusion of Sankarankoil bye-election on 18.03.2011, the respondent – State of Tamil Nadu remained satisfied that Radhapuram Taluk is a peaceful place. The moment the bye-election was over, the respondent – State of Tamil Nadu came to a conclusion that there was no public peace nor was there tranquility in the entire Radhapuram Taluk and that therefore the people of Radhapuram Taluk should be imprisoned in the place where they are and should not be allowed to move from one place to another. All of a sudden, the entire Radhapuram Taluk became a place of riot and chaos in the opinion of the law enforcement authorities. The only report that was made available to the people of Tamil Nadu by the State Government is that the commissioning of Koodankulam nuclear power plant may go on in view of the report of the Expert Committee headed by Dr.Iniyan. Nowhere the respondent – State of Tamil Nadu has taken a stand that there has been unrest in Radhapuram Taluk for quite some time and that therefore a large contingent of police personnel would be posted near Idinthakarai village. In the absence of any decision based on relevant materials, deployment of about 5000 armed police and para-military personnel near Idinthakarai village and prevention of the people of the entire Radhapuram Taluk to move from one place to another and continuance of such deployment of armed police personnel in the said place without any threat perception in the locality, would be not only unjust, unfair and unreasonable and would be violative of Articles 14, 19 and 21 of the Constitution.
d) It is submitted that the respondent – State of Tamil Nadu uses tax payers’ money and deploys large contingents of police personnel only with a view to curtailing the fundamental rights of the people who are the masters of the state. There is no difference between a foreigner ruling the country with the funds of the natives and the police personnel ruling the country who are paid by the people for whom they exist. In the event of the police personnel being allowed to take law into their own hands and to put all kinds of restrictions on the exercise of the basic fundamental right to move freely from one place to another, the day would not be far off where the constitutional machinery would totally fail in the state of Tamil Nadu. In the circumstances, the prohibitory order under Section 144 Cr. P.C. deserves to be declared by the Hon’ble Court, void.
e) It is submitted that it is learnt from the press persons stationed in Idinthakarai village that all mediapersons have been instructed by the police not to move beyond A.V.Thomas Mandapam which is about 4 Km away from Idinthakarai where the protest against Koodankulam Nuclear Power Project is going on. The protestors, largely women, who have been on this peaceful and non-violent protest for more than six months are today not allowed to move freely from the place of protest to their residence and come back to continue their protest. No power in the state however great it may be can curtail the fundamental right of the people to speech and expression. By not allowing the protestors and the people to move from one place to another, the respondent – State of Tamil Nadu has made them deaf and dumb. A country which boasts of a great democratic constitution in the world is now under the shackles of ‘near-dictatorship’. No expression would be adequate to describe the state of affairs of Radhapuram Taluk where thousands of people residing in about 50 villages are made to live like slaves. Depravation of one’s fundamental rights to speech and expression and to live with human dignity can never be compensated by any remedial action of the State. Once freedom is lost, it is lost forever. The Hon’ble Court being the custodian of the Constitution would be pleased to declare that a wholesale prohibitory order like the one clamped on Radhapuram Taluk, Tirunelveli District, Tamil Nadu would be violative of all canons of democratic polity and would ring a death knell to democracy in the country.
4. I state that I have not filed any other petition in the Hon'ble Court or in any other Court regarding the subject matter of this Writ Petition.
5. I state that I have no personal interest in the case. I have earlier filed many public interest litigations in the Hon’ble Court. One such Public Interest Litigation relating to public employment is WP No.110/2010 challenging the decision of the Government of Tamil Nadu in G.O. Ms. No. 170 dated 18.12.2009 to fill up the vacancies for various posts by appointing retired government servants and those retiring from quasi government organisations on contract basis. Pursuant to the said public interest litigation, the Government of Tamil Nadu issued a fresh G.O. viz. G.O. Ms. No.15 dated 03.02.2010 to the effect that the contract of retired persons already appointed
would be terminated on the availability of eligible persons and the Hon’ble Court disposed of the said W.P. on 30.03.2010. I undertake to pay the costs, if any, if this PIL is found to be intended for personal gain or oblique motive. I have filed this petition from my own funds. To my knowledge, no PIL arising on the issue raised in this petition has been filed anywhere. This public interest litigation is maintainable in law. The contents of this paragraph are in compliance with the Rules to regulate the Public Interest Litigations filed under Article 226 of the Constitution of India.
Solemnly affirmed at Chennai Before me
this the 21st March 2012
and signed his name in my presence.
Advocate, Chennai
In the High Court of Judicature at Madras
(Special Original Jurisdiction)
W.P. No. 7520 of 2012
P.Pugalenthi,
Advocate,
No.5, 4th Floor,
Sunkurama Street,
Chennai.600 001 .. Petitioner
Vs
1) State of Tamil Nadu
represented by the
Chief Secretary to Government,
Secretariat,
Chennai.600 009
2) The District Collector,
Tirunelveli District
Tirunelveli.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION
1.. The address for service of the petitioner is that of his counsel M.Radhakrishnan, Advocate, 134, Thambu Chetty Street, Chennai. 600 001.
2.. The address for service on the respondent is as stated above.
3.. For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court be pleased to issue a WRIT OF DECLARATION that the action of respondent No.2 of clamping an order under Section 144 Cr. P.C. on the entire Radhapuram Taluk, Tirunelveli District which is in force till April 2, 2012 is null and void, and thus render justice.
Dated at Chennai this the 21st day of March 2012
Counsel for the petitioner
In the High Court of Judicature at Madras
(Special Original Jurisdiction)
M.P. No. 1 of 2012
in
W.P. No. 7520 of 2012
P.Pugalenthi,
Advocate,
No.5, 4th Floor,
Sunkurama Street,
Chennai.600 001 .. Petitioner
Vs
1) State of Tamil Nadu
represented by the
Chief Secretary to Government,
Secretariat,
Chennai.600 009
2) The District Collector,
Tirunelveli District
Tirunelveli.
PETITION OF DIRECTION UNDER ARTICLE 226 OF THE CONSTITUTION
1.. The address for service of the petitioner is that of his counsel M.Radhakrishnan, Advocate, 134, Thambu Chetty Street, Chennai. 600 001.
2.. The address for service on the respondent is as stated above.
3.. For the reasons stated in affidavit filed in support of the Writ Petition, it is prayed that the Hon’ble Court be pleased to grant an interim direction directing the respondents to give adequate protection to all the people of Radhapuram Taluk including the protestors against Koodankulam Nuclear Power Plant at Idinthakarai Village, Tirunelveli District and all other citizens to move freely pending disposal of the writ petition, and thus render justice.
Dated at Chennai this the 21st day of March 2012
Counsel for the petitioner
Well done Pugazh. The people are with you and we expect justice. Salute.
ReplyDelete