1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.09.2018

CORAM:

THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD

WP.No.22911 of 2018 and WMP No.26806 of 2018

S.Sudalaiyandi ... Petitioner

vs.

1. The Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St. George, Chennai - 600 009.

2. The Director General of Police, Chennai - 4.

3. The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007. ... Respondents

WRIT Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari, to call for the records in G.O.Ms.No.598 dated 09.08.2018 on the file of public (law and orders B) Department and to quash the conditions imposed to celebrate worship of Vinayagar idols and immersion stated at guidelines 1(i), (iii) and 15 are concerned .

For Petitioner : Dr.G.Krishnamurthy

For Respondents : Mr.T.N.Rajagopalan http://www.judis.nic.in Government Pleader 2

ORDER (Order of the Court was made by S.MANIKUMAR, J)

Mr.S.Sudalaiyandi, a practicing advocate has filed the instant writ

petition, for a writ of certiorari, to call for the records in G.O.Ms.No.598,

Public, (Law & Order.B) Department dated 09.08.2018 and to quash the

Condition Nos. 1(i), (iii) and 15, as unconstitutional and violative of Articles

14, 25 & 26 of the Constitution of India.

2. At the outset Dr.G.Krishnamurthy, learned counsel for the

petitioner submitted that the petitioner is satisfied with all other

conditions, set out in the guidelines regarding installation and worship of

vinayakar idol, and also immersion thereof, except the conditions stated

supra.

3. Guidelines have been issued with a view to maintain public peace,

tranquility, public safety, regulation of traffic and control of pollution.

1(i), (iii) and 15 of the guidelines stated to be violative of Articles 14, 25

and 26 of the Constitution of India, and impugned, in this writ petition, are

extracted hereunder.

(1) Any organiser intending to install Vinayakar Idol should apply in a prescribed format (as in Form-I) to the Assistant Commissioners of Police concerned, where there are Police Commissionerates, and RDO / Sub-Collector in all other cases, at least a month in advance along with No Objection Certificates (NOCs) obtained from http://www.judis.nic.in (i) Land owner concerned. If the proposed land is a public 3

land, NOC from the Local Bodies concerned/ Highways or the Department concerned should be obtained; (ii) ...... (iii) Fire and Rescue Services to the effect that temporary structures erected adhere to the fire safety standards; ...... (15) Vinayakar Idols installed in the public places for worship should be taken out for immersion within five days from the date of installation.

4. Contentions of the writ petitioner are that getting permission from

the land owner concerned, would be difficult, as no land owner would grant

permission, to put up a stage for Vinayagar idols, in front of his house and

that police may register false cases. It would be practically impossible

for any organiser, intending to instal vinayagar idol to obtain NOC from the

local bodies concerned / Highways or the Department, because due to

political pressure, local bodies would not grant permission.

5. Guideline No.1(iii), states that NOC from the Fire and Rescue

Services to the effect that temporary structures erected, adhere to the fire

safety standards, which according to the writ petitioner, are not required to

be obtained, in view of other safe guards provided therefor, in the

guidelines dated 09.08.2018, and that the same would be a financial

burden, on the organisations. The above are the submissions, as regards

the constitutional validity to Guideline Nos.1(i) and (iii).

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6. As regards Guideline No.15 stated supra, Dr.G.Krishnamurthy,

learned counsel for the petitioner submitted that immersion cannot be

restricted to five days, and it would be against the Constitutional and

religious rights of Hindus, as compared to others, and therefore, it is

violative of Article 14 of the Constitution of India.

7. Added further, Dr.G.Krishnamurthy, learned counsel for the

petitioner made submissions that in the State of Maharastra celebration is

done for 10 days, but State of Tamilnadu, has restricted the period,

Vinayagar Chathurti to Vinayagar Visirajana.

8. Learned counsel for the petitioner further submitted that

permission to instal and immerse vinayakar idols, should be granted only to

the registered bodies or organisers and the societies, and not for all.

9. We have heard Dr.G.Krishnamurthy, learned counsel for the

petitioner and perused the materials available on record.

10. Yesterday, we considered, W.P.No.22805 of 2018, wherein, the

petitioner therein, has sought for a writ of mandamus, directing

respondents 1 to 8 therein, to follow the order made in W.P.Nos.21953 and

22240 of 2017 dated 23.08.2017. In the said writ petition, reference has http://www.judis.nic.in 5

been made to public interest writ petitions, filed by Dr. K.R.Ramaswamy

alias Traffic Ramaswamy and another writ petition, W.P.No.22240 of 2017,

filed by one Mr.Subash.

11. W.P.No.21953 of 2017, has been filed for a mandamus, directing

respondents 1 to 10 therein, to consider, and pass appropriate orders, on

the representation dated 11.08.2017.

12. This Court deems it fit to consider a decision in Rama

Muthuramalingam Vs. The Deputy Superintendent of Police, Tiruvarur

District, reported in 2004 (5) CTC 554, wherein the Hon'ble Division Bench

of this Court, while explaining the scope of judicial review on

administrative action and on the aspect of adjudicating an order pertaining

to maintenance of law and order, at paragraph Nos.10 & 11 has held as

follows;

"10. Maintenance of law and order is ordinarily an executive function and it is ordinarily not proper for the judiciary to interfere in this matter. The administrative authorities have expertise in law and order problems through their long experience and training, and the Courts should not ordinarily interfere in such type of matters. The judiciary must therefore exercise self- restraint and not try to interfere with the functions of the executive or the legislature. By exercising self-restraint it only enhances its prestige. 11. This Court should not ordinarily interfere in administrative matters, since the administrative authorities are http://www.judis.nic.in 6

specialists in matters relating to the administration. The Court does not have the expertise in such matters, and ordinarily should leave such matters to the discretion of the administrative authorities. It is only in rare and exceptional cases, where the Wednesbury principle applies, that the Court should interfere, vide Tata Cellular v. Union of India , 1994 (6) SCC 651; Om Kumar v. Union of India , 2001 (2) SCC 386, etc."

We deem it fit to extract the judgments considered by the Hon'ble Division

Bench, which runs from paragraph Nos.12 to 14 as follows;

"12. In Haryana Financial Corporation and another v. Mis Jagdamba Oil Mills and another , 2002 (1) CTC 503 : 2002 (1) UPLBEC 937 ( vide paragraph 10) the Supreme Court observed: "If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred, ( per Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside , 1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation , 1947 (2) ALL ER http://www.judis.nic.in 680: "It is true the discretion must be exercised reasonably. Now 7

what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably.' Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority." 13. In Tata Cellular v. Union of India reported in AIR 1996 SC 11 (vide paragraph 113) the Supreme Court observed: (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal over administrative decisions but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. In the same decision the Supreme Court observed that judicial review is concerned with reviewing not the merits of the decision but the decision making process (the Wednesbury principle). See also Pramod Kumar Misra v. Indian Oil Corporation , 2002 (4) AWC 3221, State of Kerala v. Joseph Antony , 1994 (1) SCC 301, etc. 14. As Lord Denning observed: "This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the executive http://www.judis.nic.in and the local authorities have their very own responsibilities and 8

they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the Courts and the Government and the authorities, which would be most undesirable. The Courts must act very warily in this matter. (See 'Judging the World' by Garry Sturgess and Philip Chubb). In our opinion judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative or legislative decisions."

On the aspect as to whether, who would be the competent authority to

decide on matters relating to public order, the Hon'ble Division Bench, at

paragraph Nos.28 to 34 has held as follows;

"28. The question arises, who is to determine the matter relating to Public Order? The answer is given in Entry 1 to List II (State List) of the 7th Schedule to the Constitution, which states that public order is a matter within the jurisdiction of the State. Article 162 of the Constitution states: "Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof." 29. It is thus evident that public order is a matter within the http://www.judis.nic.in domain of the State Legislature and the State Executive. That being 9

so, it is not proper for the Judiciary to interfere in matters relating to public order, unless there is violation of some constitutional or statutory provision. There are various considerations for the administration in this matter and the Court should not ordinarily interfere with administrative decisions in this connection. It must be remembered that certain matters are by their very nature such as had better be left to the experts in the field instead of the Courts themselves seeking to substitute their own views and perceptions as to what is the best way to deal with the situation. In the present case, this Court should not interfere in a matter which relates to the administration, which is in the best position to know about the public order. What public order problem would arise if speeches are permitted or prohibited in connection with the arrest of Sankarachariyar and other incidental matters? How should the problem be tackled? It is the administration that best knows these problems and their solution. This Court should therefore exercise self-restraint and should not embarrass the administrative authorities in this connection. 30. Before parting with this case we would like to briefly comment on the subject of judicial restraint while reviewing statutes or administrative decisions. We feel justified in making these comments because the times which this country is passing through requires clarification of the role of the judiciary vis-a-vis the executive and the legislature. 31. Under our Constitution the Judiciary, the Legislature and the Executive have their own broad spheres of operation. It is important that these organs do not encroach on each others proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction. Of the three organs of the State, it is only the judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great power must http://www.judis.nic.in therefore be exercised by the judiciary with the utmost humility and 10

self- restraint. 32. The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super legislature or a Court of Appeal sitting over the decisions of the administrative authorities. By exercising self-restraint it will enhance its own respect and prestige. Of course, if a decision clearly violates some provision of the law or Constitution or is shockingly arbitrary in the Wednesbury sense, it can be struck down, but otherwise it is not for this Court to sit in appeal over the wisdom of the legislature or the executive. The Court may feel that a better decision could have been taken or some other course of action could have been adopted by the legislature or executive, but on this ground it cannot strike down the law or the administrative decision. The legislature and the executive authorities in their wisdom are free to choose different methods of solving a problem and the Court cannot say that this or that method should have been adopted. As Mr. Justice Cardozo of the U.S. Supreme Court observed in Anderson v. Wilson , 289 U.S. 20: "We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take this statute as we find it." In our opinion the same principle will apply to administrative decisions also. 33. It must never be forgotten that the administrative authorities have wide experience in administrative matters. No Court should therefore strike down an administrative decision solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than the executive on administrative matters, because he can never be justifiably certain that he is right. Judicial humility should therefore prevail over judicial activism in this respect.

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34. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activisms unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of interbranch equality."

13. W.P.No.22240 of 2017, has been filed for a mandamus, directing

the respondents therein, to frame guidelines, in the matter of installation

of Vinayagar idols, on 25.08.2017, followed by ten days of pooja and

celebration, after which, procession and immersion of the idols, had to take

place on 03.09.2017, and whereas, Bakrid festival fell on 02.09.2017 and

during which time, Muslims used to slaughter cattle, for offering Qurbani,

and environment, communal peace and tranquility, have to be protected.

14. Let us consider as to, how a Hon'ble Division Bench of this Court,

adverted to the submissions made in writ petitions viz. W.P.Nos.21953 and

22240 of 2017, considered the statutory provisions, Section 41(2) of Chennai

City Police Act, 1888, Section 223 of the Chennai City Municipal Corporation

Act, 1919, Tamilnadu Fire Safety Act, 1985, Provisions of the Pollution http://www.judis.nic.in 12

Control Laws and in particular, Hazardous Waste Management Rules,

restricting pollutant substances and the affidavit of the Managing Director,

Tamilnadu Generation and Distribution Corporation, referred to as

TANGEDCO, observed and ordered vide order dated 23.08.2017, as

hereunder,

"4. Article 25(1) of the Constitution of India guarantees every person in India the fundamental right to profess, practice and propagate religion. This right, however, is subject to restrictions that might be imposed by the State to maintain public order, morality and health. 5. Freedom of conscience and freedom of religion would necessarily include the freedom to practice rituals and ceremonies in accordance with law. The right to perform religious worship at public places on certain occasions has been acquired by custom/usage. Having been so acquired, such right enjoys the protection of Article 25 of the Constitution. From the right to practice religion flows the right to take out religious processions, to instal idols and to perform worship, subject to the restrictions that might be imposed by the State. 6. Religious practices are, however, protected only as long as they do not run counter to law, public safety, public health, morality and the civic rights of others. The right to instal and worship idols at public places is subject to compliance with the laws of the land, obtaining of requisite permissions and/or approvals, such as permission of the local body, police clearance and fire safety clearance, and compliance of rules and regulations to protect life and preserve public health, environment, safety, morality, free movement and the like. http://www.judis.nic.in 13

7. Section 41 of the Chennai City Police Act, 1888, provides as follows: S.41. Power to regulate assemblies, meetings and processions in public places etc. (1) The Commissioner, or subject to his orders, any Police-officer above the rank of head constable, may, from time to time, as occasion may require direct the conduct of all assemblies, meetings and processions in public places; prescribe the routes by which and the times at which such processions may pass; keep order in public places and prevent obstructions on the occasion of such assemblies, meetings and processions, and in the neighbourhood of places of worship during the time of public worship and in any case when public places may be thronged or liable to be obstructed and may licence and regulate or prohibit the use of music or of sound amplifiers in any area. (2) Subject to the provisions of sub-sections (3) and (4), the Commissioner may, by order in writing, prohibit any assembly, meeting or procession if he considers such prohibition to be necessary for the preservation of the public peace or public safety; Provided that no order under this sub-section shall, without the sanction of the State Government, remain in force for more than fifteen days from the date on which such order takes effect. (3) (a) When the order referred to in sub-section (2) is in force, any person who intends to convene or collect any assembly or meeting in any public place or to direct or promote any procession, shall make an application to the Commissioner for permission. The application shall be in such form and contain such particulars as may be specified by the commissioner in this behalf and shall be made not less than five days prior to the date on which the assembly or meeting is to be convened or collected or the procession is to be formed. Provided that the Commissioner may, for reasons to be recorded in writing, receive such application within five days prior to the date aforesaid. (b) On receipt of the application under clause (a), the Commissioner may, by order in writing served in the manner specified in sub-section (7), grant permission to convene or collect the assembly or meeting or to direct or promote the procession subject to such conditions as he may specify or refuse to grant such permission. (4) Except in cases where immediate action is necessary for the preservation of the public peace or public safety no order refusing to grant permission shall be passed under clause (b) of sub- section (3) without giving the person concerned an opportunity of appearing before the Commissioner either in person or by pleader and showing cause against the order refusing to grant permission and the Commissioner shall record in writing the reason for such order. http://www.judis.nic.in 4-A.Without prejudice to the provisions of sub sections (1) to 14

(4) where any person intends to direct or promote any procession, he shall give prior notice, in writing atleast 24 hours in advance of the commencement of such procession indicating therein the routes by which and the time at which the procession is proposed to be taken. Such notice shall be given to any police officer above the rank of a head constable of the police station having jurisdiction over the area in which the procession starts. (5) The Commissioner may, by order in writing, depute one or more Police-officer or other persons, to be present in any such assembly, meeting or procession, for the purpose of causing a report to be taken of the proceedings. (6) Any person who:- (a) opposes or fails to obey any order under sub-section (1), or (b) contravenes the conditions of any licence under sub- section (1), or (bb) fails to give prior notice referred to in subsection (4-A), or (c) When the order referred to in sub-section (2) is in force, convenes or collects any assembly or meeting or directs or promotes any procession:- (i) without the permission of the Commissioner under clause (b) of sub-section (3), or (ii) in contravention of any of the conditions subject to which the permission was granted under that clause, shall be liable, on conviction, to a fine not exceeding one thousand rupees, or to imprisonment not exceeding one month, or both. (7) The order referred to in clause (b) of sub-section (3) shall be served:- (a) by giving or tendering the order to the person concerned; or (b) if such person is not found, by leaving such order at his last known place of abode or business or by giving or tendering the same to some adult member or servant of his family; or (c) if such person does not reside in the City of Madras and his address elsewhere is known to the Commissioner, by sending the same to him by post registered; or (d) if none of the means aforesaid be available, by affixing the same in some conspicuous part of the place of abode or business of such person. (8) Nothing in this section shall apply to any assembly or meeting of a purely religious character held in a recognised place or worship, any assembly or meeting gathered together purely for the purpose of taking part in sports, any procession on the occasion of any wedding, funeral or similar domestic occurrence, or of any religious ceremony, or to any public meeting held under any statutory or other express legal authority, or to public meetings convened by the sheriff, or to any public meetings or class of public meetings exempted for that purpose by the State Government by http://www.judis.nic.in general or special order. 15

(9) For the purposes of this section:- (a) the words "assembly", "meeting" and "procession" include any assembly, meeting or procession which is open to the public or to any class or portion of the public. (b) a place in which an assembly or meeting is held may be a public place notwithstanding that it is held in a private place and notwithstanding that admission thereto may have been restricted by ticket or otherwise.

8. For the purpose of preservation of public peace, public order or public safety, the Commissioner might, by order in writing, prohibit any assembly, meeting or procession, which, in our view, would include installation of idols and public worship of such idols on public streets and public land. Such worship would also attract the aforesaid Section.

9. Sub-section (3) requires any person, who intends to perform any public worship or take out any religious procession, to make an application to the Commissioner for permission. The application is required to be in such form, and contain such particulars as might be specified by the Commissioner in this behalf, and is to be made not less than five days prior to the date on which the public worship is to take place. The proviso to Section 41 (3), however, enables the Commissioner to receive applications filed later, for reasons to be recorded in writing.

10. On receipt of the application, the Commissioner might grant permission to hold worship subject to conditions that the Commissioner might specify or he might refuse to grant such permission. There can be no question of installation of any idols or any pandhals or structures on public land without the requisite permissions.

11. In view of Section 41(4) of the Chennai City Police Act, http://www.judis.nic.in 1888, except in cases where immediate action is necessary for 16

the preservation of public peace or public safety, no order refusing to grant permission is to be passed without giving the concerned person opportunity of hearing before the Commissioner, either in person or by pleader. On a combined reading of the various sub-sections of Section 41, it is apparent that permission to hold public worship cannot be refused altogether unless the same is necessary for preservation of public peace or public safety.

12. Since all roads and pavements in the city of Chennai vest in and are properties of Chennai Municipal Corporation, permission of the Chennai Municipal Corporation to hold such public worship is imperative. Reference may be made to Section 223 of the Chennai City Municipal Corporation Act, 1919.

13. The holding of public worship, be it Vinayagar worship or any other worship, in the city of Chennai contemplates (i) permission of the Chennai City Municipal Corporation; and (ii) permission of the Commissioner of Police, Chennai. In addition, considering the nature of such worship and/or celebrations which involve illumination and setting up of temporary structures with materials, which are often inflammable, clearance of the fire safety authorities under the provisions of Tamil Nadu Fire Safety Act, 1985, is also absolutely imperative. The provisions of the Pollution Control laws and in particular, the Hazardous Waste Management Rules restricting the use of pollutant substances are also required to be complied with.

14. In exercise of powers conferred by sub-section (2) of Section 41 of the Tamil Nadu City Police Act, 1888, the Commissioner of Police has prohibited all assemblies, processions, http://www.judis.nic.in fasts, demonstrations, human chain meeting, installation of 17

Vinayagar idols at unrecognised places in streets, roads, thoroughfares or other public places within Greater Chennai police jurisdiction for a period of fifteen (15) days commencing from 22.08.2017 to 06.09.2017. However, the prohibition is not to apply in cases where permission is granted by the Commissioner subject to conditions that might be imposed by the Commissioner.

1 5. The order, inter alia, provides as follows: " ...... However, taking into consideration of large scale installation of Vinayagar Idols at unrecognised places in Chennai city on the eve of Vinayagar Chathurthi festival, with a view to maintain public peace, tranquility, public safety and regulation of traffic, the following conditions have to be complied with by the organizers scrupulously for installation of Vinayagar idols and immersion procession in Chennai City. i . Police permission should be obtained for installation of idols. i i .If the idol is installed in a private place, consent of the owner of the land should be obtained and in case of any public place, permission should be obtained from Corporation / Other Local bodies. i i i.The idols proposed to be installed should be made of pure clay without coating of toxic paints as stipulated by TNPCB. i v. The height of the idol including the base/dais should not exceed 10 feet. v.The idols should not be installed nearby other religious places such as mosques, churches, etc. vi.The idols should not be installed at the traffic congested / thickly populated areas / near the hospitals / at the places objected by public. http://www.judis.nic.in vii.Fire preventive measures should be arranged at the 18

place of idol installation. viii.Sound amplifier licence conditions should be strictly adhered and no sound amplifier shall be used in the moving vehicles carrying idols. ix.Music programmes / Slogans inciting sentiments of other religions should be avoided. x.Bursting of crackers at the place of installation which will cause noise pollution should be avoided. x i.The idol immersion procession should be taken out with Police permission at the route and time specified by the police and the idols should be immersed at the notified immersion points, adhering to the conditions. x ii.The organisers should strictly follow any other conditions laid down by the jurisdiction police officers in the interest of maintaining public peace, public safety and communal harmony.

16. Needless to mention that no Vinayagar idol can be installed during the ensuing Vinayagar Chaturthi festival, except with permission from the Commissioner and in compliance with the conditions of such permission, in view of the order dated 22nd August, 2017, referred to above.

17.The order dated 22nd August, 2017, issued by the Commissioner is of limited duration. As pointed out in the second writ petition, there are no Rules, Regulations or guidelines in the State to regulate public worship by installation of idols on religious occasions. It is imperative that Rules and/or Regulations be framed and publicized by the State, laying down detailed guidelines for temporary installation of idols at public places for

public worship, immersion, processions, etc. http://www.judis.nic.in 18. Pending the framing of Rules and/or Regulations 19

regulating installation of idols on public streets/public land and worship thereof, the respondent authorities shall ensure that a)The requisite permissions and/or approvals, particularly the approval of the municipal corporation, police, fire service and pollution control authorities is obtained. b)No idols made of polluting materials such as Plaster of Paris or painted with prohibited polluting chemical colours are installed. c)The organizers avoid using inflammable materials for construction of temporary structures and provide entrances and exits, which are wide enough for smooth and easy ingress into and exit out of Pandhals and/or structures in a regulated manner. d)Public address system should not exceed the prescribed noise decibel limit and in the event any music is played, the music should not exceed the prescribed noise decibel limit. e)There is a complete ban on use of amplifiers and loudspeakers and bursting of sound emitting fire crackers between 10.00 p.m. and 6.00 a.m. f)The fire safety norms and rules are strictly complied with and the Pandhals including the electrical installations thereof are inspected and approved by the concerned fire authorities. g)Adequate first aid and emergency medical facilities are made available. h)No inflammable materials are stored in and around the worship areas. i)No illegal activities take place under the garb of Vinayagar worship including pilferage of electricity. j)There is no unauthorized tapping and/or pilferage of electricity by organizers of Vinayagar worship. k)The immersion of idols should be conducted in an orderly manner at the spots specified by the concerned police authorities and the immersion procession should follow routes and timings http://www.judis.nic.in approved by the police. 20

19. The Chairman cum Managing Director of Tamil Nadu Generation and Distribution Corporation Ltd., hereinafter referred to as 'TANGEDCO', has filed an affidavit indicating the steps that are taken to detect cases of theft of energy. In paragraph 7 of the affidavit, it is stated that the organisers of such functions might approach TANGEDCO for temporary supply for the purpose of illumination, etc., for which a temporary service connection is effected and current consumption charges collected as per the Tamil Nadu Electricity Regulatory Commission (TNERC) Rules. Any unauthorised tapping of power from pillar boxes or overhead lines attracts criminal cases. The organizers should, therefore, apply for and obtain temporary supply of electricity from TANGEDCO upon payment of requisite charges. 20. The State shall frame Regulations and/or Rules formulating detailed guidelines of the requisites that have to be complied with by all organizers who temporarily instal idols on public land and perform public worship. Such guidelines should include the requisite safety and fire safety measures required to be taken by the organizers, measures to prevent environmental and noise pollution, measures to avoid obstruction of traffic to the extent feasible, the requisite civil and medical facilities required to be provided by the organizers, etc. The Regulations shall be enforced the next time any idol of Vinayagar or any other deity is temporarily installed for worship on any public land. With the aforesaid observations, the writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed."

15. Towards implementation of the directions of the Hon'ble Division

Bench, in the abovesaid common order, State Government have framed http://www.judis.nic.inguidelines for installation and worship of Vinayakar idols and for immersion 21

thereof, and issued G.O.Ms.No.598, Public (Law & Order.B) Department,

dated 09.08.2018.

16. G.O.Ms.No.598, Public (Law & Order.B) Department, dated

09.08.2018, reads thus.

ABSTRACT LAW & ORDER - Guidelines for installation and worship of Vinayakar idols and also immersion thereof - Notified. PUBLIC (LAW & ORDER. B) DEPARTMENT G.O.Ms.No.598 Dated: 09.08.2018

Vilambhi, Aadi-24 Thiruvalluvar Aandu-2049

1. Orders of Hon'ble High Court, Chennai, dated 23.08.2017 in W.P.No.21953/2017 dand 22240/2017. 2. From the Commissioner of Police, Greater Chennai, Letter No.753/S.B.XII/2017 dated 23.09.2017. 3. From the Commissioner, Corporation of Chennai, Letter No. WDC/2210/2017, dated 23.04.2018. ------

ORDER:

Proposals have been received from the Commissioner of Police, Greater Chennai and the Commissioner, Corporation of Chennai regarding formation of guidelines / rules for temporary installation and worship of idols on public land, duly taking into account the observations made by the Hon'ble High Court in a batch of Writ Petitions on the issue. 2. The Government examined the issue in detail. With a view to maintaining public peace, tranquility, public safety, regulation of traffic and control of pollution, the Government, after careful consideration, issue the Guidelines regarding the installation and worship of Vinayakar idols and also immersion thereof, as in the Annexure to this Government Order and notify the same for the State of Tamil Nadu. 3. The officials concerned are hereby instructed to give wide publicity to the above guidelines and ensure strict implementation of the same with immediate effect. http://www.judis.nic.in 4. This order issues with the concurrence of Environment and Forests 22

Department, vide its U.O. dated 03.08.2018 and Home Department, vide its U.O.No.1, dated 03.08.2018. (BY ORDER OF THE GOVERNOR)

P.SENTHIL KUMAR, PRINCIPAL SECRETARY TO GOVERNMENT (FAC), To All Secretaries to Government, Secretariat, Chennai - 9. All District Collectors. All Commissioners of Police. All Superintendents of Police. The Director General of Police, Chennai - 4. The Commissioner of Police, Greater Chennai, Chennai-7. The Additional Director General of Police (Law and Order), Chennai-4. The Inspector General of Police, Intelligence, Chennai-4. The Commissioner, Corporation of Chennai, Chennai-3. The Director of Stationery and Printing, Chennai-2. The Works Manager, Government Central Press, Chennai - 79. (Two copies - for publication of the Notification in an Extra-ordinary issue of Tamil Nadu Government Gazette, dated 09.08.2018) The Secretary to Governor, Raj Bhavan, Chennai - 22.01.2018 The Secretary (III) to Chief Minister, Chennai - 9. The Director of Information & Public Relations, Chennai-9. The Registrar General, High Court, Chennai - 104. The Advocate General of Tamil Nadu, High Court, Chennai - 104. The Government Pleader, High Court, Chennai - 104.

Copy to:

The Home / Environment & Forests / Municipal Administration & Water Supply / Rural Development & Panchayat Raj / Energy / Highways & Minor Ports / Law Department, Chennai - 9. The Accountant General, Chennai-9 / 18. The Pay and Accounts Officer, Chennai-9 / 18. The Resident Audit Officer, Chennai - 9. Stock File / Spare Copies.

/ Forwarded // By order /

SECTION OFFICER

A N N E X U R E

Guidelines regarding installation and worship of Vinayakar idols and also immersion thereof

With a view to maintain public peace, tranquility, public safety, regulation of traffic and control of pollution, the following guidelines are issued for the State http://www.judis.nic.in of Tamil Nadu :- 23

(1) Any organiser intending to install Vinayakar Idol should apply in a prescribed format (as in Form-I) to the Assistant Commissioners of Police concerned, where there are Police Commissionerates, and RDO / Sub-Collector in all other cases, at least a month in advance along with No Objection Certificates (NOCs) obtained from ( i ) L and owner concerned. If the proposed land is a public land, NOC from the Local Bodies concerned/ Highways or the Department concerned should be obtained; (ii) The Station House Officer concerned (including Sound Amplifier License / Permit); (iii) Fire and Rescue Services to the effect that temporary structures erected adhere to the fire safety standards;

and (i) A letter indicating source of power supply and proof of temporary supply of electricity from TANGEDCO.

Necessary permission will be issued by the Assistant Commissioner of Police in Police Commissionerates, and RDO / Sub-Collector in other cases in Form-II annexed to the guidelines.

(2) The Idols proposed to be installed should be made of pure clay and should not be made of any polluting materials such as Plaster of Paris or painted with prohibited polluting chemicals and as stipulated by Tamil Nadu Pollution Control Board and Central Pollution Control Board from time to time. In case Idols are to be painted, water soluble and non-toxic natural dyes alone should be used. Use of toxic and non-biodegradable chemical dyes for painting Idols is strictly prohibited.

(3) The organisers should avoid using inflammable materials for construction of temporary structures and should provide entry and exit, which are wide enough for smooth and easy ingress into and exit out of ‘Pandhals’ and / or structures in a regulated manner.

(4) The organisers should ensure that adequate first aid and emergency medical facilities are made available and no inflammable materials are stored in and around the worship areas.

(5) The height of the Idol proposed to be installed should not exceed 10 feet including the base and the dais.

(6) Installation of Idols near other religious places / hospitals / educational institutions should be avoided.

(7) Sound Amplifier (Mike) License would be granted only for two hours in the morning and two hours in the evening, during Pooja. Cone type speakers are prohibited and only box type speakers should be used. Public Address System should not exceed the prescribed noise decibel limit and in the event any music is played, the music should not exceed the prescribed noise decibel limit.

(8) The organisers should ensure that no illegal activities take place under the garb of Vinayakar worship including unauthorized tapping and / or pilferage http://www.judis.nic.in of electricity. 24

(9) No flex boards in support of any political party or communal leader shall be erected at the premises of the programme.

(10) Organisers should depute two volunteers round the clock for safety of the Idol. The installation places of Idol should be properly illuminated. Generator set may be provided in case of power failure.

(11) Shouting of slogans inciting communal hatred and affecting the sentiments of other religions shall not be permitted at any cost.

(12) The organisers should strictly follow any other conditions laid down by the Revenue / Police / Tamil Nadu Pollution Control Board authorities in the interest of maintaining public peace, public safety and communal harmony.

(13) The Fire and Rescue Services should ensure that fi re safety norms and rules are strictly complied with and the ‘Pandhals’ including the electrical installations thereof are inspected and approved by the fi re authorities concerned.

(14) The District Collectors concerned shall annually finalise the list of Idol immersion points in their districts in consultation with the Police Department, Tamil Nadu Pollution Control Board, Local Bodies and related Departments. Idols should be immersed only in the designated “Idol Immersion Points” identified by the authorities concerned.

(15) Vinayakar Idols installed in the public places for worship should be taken out for immersion within five days from the date of installation.

(16) Vinayakar Idol immersion procession should be taken out before 1200 hours on the specified day in the approved routes prescribed by the Police through vehicles and immersed in the designated places in an orderly manner. Wherever possible, the procession should be taken out through the routes by- passing the mosques / churches, as stipulated by the Police authorities.

(17) Four wheelers, (i.e.), mini lorry / tractor should only be used for carrying the Idols. Bullock cart/fish cart/ three wheelers would not be permitted. (18) Capacity of participants travelling in the vehicle carrying Vinayakar Idol should be in accordance with the Motor Vehicle Act, 1988.

(19) Bursting of crackers at the Vinayakar Idol installation places / immersion points / procession routes should not be allowed.

(20) Worship materials like flowers, clothes, decorating material (made of paper and plastic), etc., should be removed before immersion of Idols. Bio- degradable materials should be collected separately for recycling or composting. Non-biodegradable materials should be collected separately for disposal in sanitary landfills.

(21) The ‘Idol Immersion Points’ shall be cordoned off and barricaded. Synthetic liner may be placed in the bottom, well in advance. The said liner shall be removed on completion of immersion ceremony so that the remains of Idols http://www.judis.nic.in would be brought to the bank. Bamboo and wooden logs, if any, would be reused. 25

Clay, etc., may be taken to sanitary landfill for disposal.

(22) Within 48 hours of the immersion of Idols, the left over material at the Idol immersion points on the banks of rivers, lakes, beaches, etc., should be collected by the local bodies for disposal.

(23) Tamil Nadu Pollution Control Board should conduct water quality assessment of the water body, preferably in Municipal Corporations at three stages, (i.e.), pre-immersion, during immersion and post immersion. Considering the size of water body, appropriate number of sampling locations may be determined in order to get a fairly representative assessment of water quality. For ascertaining water quality, physico-chemical parameters such as pH, DO, BOD, COD, Conductivity, Turbidity, TDS, Total Solids and Metals (Chromium, Lead, Zinc and Copper) may be analysed.

(24) The appeal against the order of permission issuing authority lies with the Commissioner of Police in Police Commissionerates and District Collector in other cases.

FORM – I

Application for permission to install Idol and to take out processions

From (Name and address with contact details of the convenor who intends to install Idols and to take out procession).

To The Sub-Collector (or) The Revenue Divisional Officer (or) The Assistant Commissioner of Police (as the case may be) Sir,

I hereby apply for permission to install Idol (not exceeding ...... feet) at …………………………………… ………………………………………… ……………………………………………….. situated within …………………………… Police limits in ………………………………Taluk of ……………………………… District. I forward herewith the following particulars in duplicate, duly signed by me:- (a) NOC from the Land owner concerned. If the proposed land is a public land, NOC from the Local Bodies/ Highways or the Department concerned; (b) NOC from the Station House Officer concerned (including Sound Amplifier License / Permit); (c) NOC from Fire and Rescue Services to the effect that temporary structures erected adhere to the fire safety standards;

and http://www.judis.nic.in (i) A letter indicating source of power supply and proof of temporary 26

supply of electricity from TANGEDCO.

UNDERTAKING

(1) I agree to install Idol made of bio-degradable material such as clay and use only natural dyes and will not use chemical colours.

(2) I agree to proceed with installation of the Idol only with prior permission.

(3) I agree to use the amplifiers and loudspeakers within the permissible limits in the specified timing.

(4) I agree to refrain from bursting of crackers.

(5) I agree that I will not tap electricity illegally.

(6) I agree that no flex boards in support of any political party or communal leader will be erected.

(7) I agree that the Idol immersion procession will be taken out with Police permission at the route and time specified by the Police and the Idols will be immersed at the notified immersion points as per the conditions laid down.

(8) I agree that I will abide by any other conditions put forth for permission.

Signature of the Convenor who intends to install Idols and take out procession

FORM – II

Permission to install the Idols and permission for procession

From The Sub-Collector (or) The Revenue Divisional Officer (or) The Assistant Commissioner of Police (as the case may be) To

(Name and address of the convenor who intends to install Idols and and to take out procession).

Sir / Madam,

Permission is hereby accorded for installation of Idol (not exceeding10 feet) from …………….... to …………………….. at …………………………………………………………… within …………………………………… Police limits in …………………… Taluk of …………………… http://www.judis.nic.in 27

……. District, subject to the conditions attached herewith.

Sub-Collector (or) Revenue Divisional Officer (or) Assistant Commissioner of Police

Date :

Place :

Copy to : 1. The

PERMISSION IS ISSUED SUBJECT TO THE FOLLOWING CONDITIONS :-

(a) The Idols proposed to be installed should be made of pure clay and should not be made of any polluting materials such as Plaster of Paris or painted with prohibited polluting chemicals and as stipulated by Tamil Nadu Pollution Control Board and Central Pollution Control Board from time to time. In case Idols are to be painted, water soluble and non-toxic natural dyes alone should be used. Use of toxic and non-biodegradable chemical dyes for painting Idols is strictly prohibited.

(b) The organisers should avoid using inflammable materials for construction of temporary structures and should provide entry and exit, which are wide enough for smooth and easy ingress into and exit out of ‘Pandhals’ and / or structures in a regulated manner.

(c) The organisers should ensure that adequate first aid and emergency medical facilities are made available and no inflammable materials are stored in and around the worship areas.

(d) The height of the Idol proposed to be installed should not exceed 10 feet including the base and the dais.

(e) Installation of Idols near other religious places / hospitals / educational institutions should be avoided.

(f) Sound Amplifier (Mike) License would be granted only for two hours in the morning and two hours in the evening, during Pooja. Cone type speakers are prohibited and only box type speakers should be used. Public Address System should not exceed the prescribed noise decibel limit and in the event any music is played, the music should not exceed the prescribed noise decibel limit.

(g) The organisers should ensure that no illegal activities take place under the garb of Vinayakar worship including unauthorized tapping and / or pilferage of electricity.

(h) No flex boards in support of any political party or communal leader shall be erected at the premises of the programme. http://www.judis.nic.in (i) Organisers should depute two volunteers round the clock for safety of 28

the Idol. The installation places of Idol should be properly illuminated. Generator set may be provided in case of power failure.

(j) Shouting of slogans inciting communal hatred and affecting the sentiments of other religions shall not be permitted at any cost.

(k) The organisers should strictly follow any other conditions laid down by the Revenue / Police Tamil Nadu Pollution Control Board authorities in the interest of maintaining public peace, public safety and communal harmony.

(l) Vinayakar Idols installed in the public places for worship should be taken out for immersion within five days from the date of installation.

(m) Vinayakar Idol immersion procession should be taken out before 1200 hours on the specified day in the approved routes prescribed by the Police through vehicles and immersed in the designated places in an orderly manner. Wherever possible, the procession should be taken out through the routes by- passing the mosques / churches, as stipulated by the Police authorities.

(n) Four wheelers, (i.e.), mini lorry / tractor should only be used for carrying the Idols. Bullock cart / fish cart/ three wheelers would not be permitted.

(o) Capacity of participants travelling in the vehicle carrying Vinayakar Idol should be in accordance with the Motor Vehicle Act, 1988.

(p) Bursting of crackers at the Vinayakar Idol installation places / immersion points / procession routes should not be allowed.

(q) Worship materials like flowers, clothes, decorating material (made of paper and plastic), etc., should be removed before immersion of Idols.

(r) In case of appeal against the order of permission issuing authority, it lies with the Commissioner of Police in Police Commissionerates and District Collector in other cases.

P. SENTHILKUMAR, Principal Secretary to Government (FAC).

// TRUE COPY //

SECTION OFFICER

17. Contentions of the writ petitioner, assailing the constitutional

validity of Guideline No.1(i) are that no land owner would give permission

for installation of vinayakar idols, in front of his house, and therefore, it is http://www.judis.nic.inviolative of the Constitution of India, cannot be accepted. 29

18. Writ petitioner has no constitutional or statutory right, to infringe

the rights of a land owner, without his written consent, to install any idol,

much less vinayagar statue in front of his house. If there is infringement of

a right to property, owner of the property, can always bring it to the notice

of the law enforcing authority, or any other competent authority, as the

case may be to protect his right to property. Apprehension of the

petitioner that cases would be registered against a person, installing

vinayakar idol, in front of his house, cannot be countenanced.

19. Certainly, if the land is a public land, it requires permission from

the local bodies concerned / Highways or the department. Petitioner has

no statutory or constitutional right, to install any idol, much less, vinayakar

idol, without, No Objection Certificate from the local body / Highways or

Department. For the abovesaid reasons, challenge to Guideline No.1(i) has

to fail and accordingly, we hold that the same, as not, unconstitutional of

Articles 25 and 26 of the Constitution of India.

20. Guideline No.1(iii), states that any organizer intending to install

any idol should obtain a "No Objection Certificate from the Fire and Rescue

Services", to the effect that temporary structures erected should adhere to http://www.judis.nic.in 30

the fire safety standard. Said aspect has been consider by the Hon'ble

Division Bench.

21. As per Guideline No.15, Vinayakar Idols installed in the public

places for worships should be taken out for immersion within five days from

the date of installation.

22. In support of the above, petitioner has contended that in

Maharastra, it is for a longer period. Time period that idol must be

installed in a particular day, and should be immersed within a specified

period cannot be ascertained, in a writ. If the petitioner contends that a

minimum of ten days is required, then, substantiating facts, circumstances

and evidence, it could be done only in a suit. Nothing has been produced

that the time period, is an indicative part of religion, for which, a

protection order has to be granted.

23. State is under the obligation to maintain public peace,

tranquility, regulation of traffic and control of pollution, which factors have

been taken note of, while framing the guidelines, got installation of

vinayakar idols, worship and immersion thereof. Condition No.15 of the

guidelines cannot be said to be violative of Articles 25 & 26 of the

Constitution of India. What is stated as regards period and practice in the http://www.judis.nic.in 31

State of Maharastra cannot be imported to State of Tamil Nadu. For

illustration, Durga Pooja is celebrated for 8 days in West Bengal, and not in

Tamil Nadu. There is no violation of Article 14 of the Constitution of India.

24. Contention of the learned counsel for the petitioner that

Government Order viz., G.O.Ms.No.598, Public, (Law & Order.B)

Department dated 09.08.2018, ought to have been issued, restricting only

to the registered organisations / bodies, cannot be countenanced, for the

reason that, any person, intending to install and immerse vinayakar idols

thereof, can do so, and restricting the same only to the registered bodies,

would be violative of Article 14 of the Constitution of India. Hon'ble

Division Bench of this Court, in the common order made in W.P.Nos.21953

and 22240 of 2017 dated 23.08.2017, has already considered all the issues

regarding, public peace, tranquility, public safety, regulation of traffic,

safety measures, contemplated under the regulations of TANGEDCO and

directed the authorities, to issue the guidelines.

25. For the reasons stated supra, we are not inclined to interfere

with the guidelines, issued in implementation of the directions of this

Court. Writ petition is dismissed. No costs. Consequently, the connected

Writ Miscellaneous Petition is closed.

http://www.judis.nic.in 32

(S.M.K., J.) (S.P., J.) 05.09.2018 Index: Yes/ Internet: Yes Speaking/Non speaking ars

To

1. The Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St. George, Chennai - 600 009.

2. The Director General of Police, Chennai - 4.

3. The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.

http://www.judis.nic.in 33

S.MANIKUMAR,J. AND S UBRAMONIUM PRASAD, J.

ars

WP.No.22911 of 2018 and WMP No.26806 of 2018

05.09.2018

http://www.judis.nic.in