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T.V. Anandan and anr. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberO.P. No. 167 of 1979-C
Reported inAIR1981Ker242
ActsConstitution of India - Article 14; Kerala Education Rules, 1959 - Rule 15 and 15A
AppellantT.V. Anandan and anr.
RespondentState of Kerala and ors.
Appellant Advocate K. Rama Kumar and; B. Satheesh Chandran, Advs.
Respondent AdvocateAdv. General
DispositionPetition allowed
Cases ReferredEducation and Science v. Tameside M.B.C.
constitution - discrimination - article 14 of constitution of india and rules 15 and 15 a of kerala education rules, 1959 - whether rashtriya swayamsevak sangh (rss) was a non-political cultural organisation that can be denied privilege of using government school building for accommodating delegates of their conference - other organisations were allowed same privilege - activities of rss not banned - no reasonable and valid justification given in matter of sanctioning use of school buiildings - government's act not just and fair - principle of natural justice should be followed - article 14 violated as classification of excluding petitioner unreasonable as was done in arbitrary manner without assigning any reason. - - p-2 to p-4 are clearly mala fide and amount to colourable exercise.....orderk.k. narendran, j.1. the main point that arises for consideration in this case is whether the rashtriya swayamsevak sangh can be denied the privilege of using government. school buildings for accommodating delegates of their conference as long as their activities are not banned and when other organisations are allowed the same privilege. the 1st petitioner is the secretary of the kerala pradesh rashtriya swayamsevak sangh and the 2nd petitioner is the tellicherry taluk karyavah of the sangh. the petitioners' case is: the sangh is a non-political cultural organisation devoted mainly to the fundamental task of reforming and reorganising the people of india. the sangh was formed in 1925. the membership of the sangh is open to all irrespective of their caste, creed or community. the.....

K.K. Narendran, J.

1. The main point that arises for consideration in this case is whether the Rashtriya Swayamsevak Sangh can be denied the privilege of using Government. School buildings for accommodating delegates of their conference as long as their activities are not banned and when other organisations are allowed the same privilege. The 1st petitioner is the Secretary of the Kerala Pradesh Rashtriya Swayamsevak Sangh and the 2nd petitioner is the Tellicherry Taluk Karyavah of the Sangh. The petitioners' case is: The Sangh is a non-political cultural organisation devoted mainly to the fundamental task of reforming and reorganising the people of India. The Sangh was formed in 1925. The membership of the Sangh is open to all irrespective of their caste, creed or community. The volunteers of the Sangh had performed yeo-man service during the floods in Andhra, Delhi and Uttar Pradesh and recently in some parts of Kerala also. The Sangh has not been indulging in any kind of objectionable activities.

On the 20th and 21st of Jan., 1979 a reception was organised in honour of Sri Bala Sahib Deoras, the Sar Sangh Chalak of the R.S.S. For the purpose of the stay of the delegates, the 2nd petitioner applied for the sanction of the Government High School building, Chi-rakkara. The 3rd respondent-District Educational Officer by Ext. P-1 order dated 7-10-1978 sanctioned the use of the school building. All the arrangements were made by the petitioners. Then, on the 16th of Jan., 1979, the 3rd respondent issued Ext. P-2 order to the 2nd petitioner cancelling Ext. P-l sanction. When the 3rd respondent was contacted, the 1st petitioner came to know that Ext. P-2 was issued under the instructions of higher authorities. Ext. P-3 is a Government letter dated 17-10-1978 directing the 2nd respondent-Director of Public Instruction that 'school buildings and compounds should not be rented out or given for R.S.S. activities'. By Ext. P-4, the 2nd respondent circulated Ext. P-3 Government letter to all District Educational Officers. Ext. P-2 happened to be issued by the 3rd respondent under the instructions of respondents 1 and 2. Not a single instance had been reported since 1925 of any untoward or unpleasant incident in any of the camps held by the Sangh.

2. It was under the above circumstances that the petitioners approached this Court with this original petition challenging Exts. P-2 to P-4. Over and above the quashing of Exts. P-2 to P-4, the petitioners also have prayed for a declaration that Exts. P-2 to P-4 are violative of Articles 14, 19(1)(a), (b) and (c) and Article 25 of the Constitution of India. The petitioners have raised the following contentions in the original petition: Ext. P-2 is not a speaking order. Ext. P-2 is not only an administrative order but is also a quasi-judicial order affecting the rights of the petitioners. Ext. P-2 is also not supported by any valid reason. There is no valid justification in discriminating the petitioners alone in the matter of sanctioning the use of school buildings and compounds. An unreasonable classification excluding the petitioners and their organisation alone in an arbitrary manner without assigning any reason is totally opposed to the provisions contained in Article 14 of the Constitution of India.

No other organisation, whether political or otherwise, has been so prohibited from the use of school premises for the purpose of stay. The Sangh alone is singled out for such discrimination. Exts. P-2, P-3 and P-4 are totally violative of the equality clause of the Constitution of India contained in Article 14. Exts. P-2 to P-4 also offend Article 19(1) (a), (b) and (c) of the Constitution of India. The effect of Exts. P-2 to P-4 orders are prevention and total prohibition of the holding of a function in Tellicherry. It is submitted that the said prohibition or prevention or curtailment is not saved by any of the clauses of Article 19. Exts. P-3 and P-4 are clear abuse of the executive powers of the Government. Exts. P-2 to P-4 are clearly mala fide and amount to colourable exercise of power. The impugned orders constitute an infraction of the freedom of conscience guaranteed to the petitioners in Article 25 of the Constitution of India.

The school in question is sought to be used only for residential purposes of the delegates attending the reception and as no other activity is intended to be performed there, the prohibition really amounts to a prohibition of entertaining or keeping a particular ideology in mind. It is therefore against Article 25 of the Constitution. Ext. P-2 is clearly mala fide not only on account of malice in fact, but also due to the non-application of mind by all the respondents. Before the issue of Ext. P-2, some of the Youth Wings of the ruling parties passed resolution demanding total prohibition of the functions organised by the Sangh at Tellicherry and it was this that influenced the Government to issue Ext. p-2 cancellation. Rule 15, Chapter IV, Kerala Education Rules, 1959 is a law in force which governs the sanctioning of the school buildings. Exts. P-3 and p-4 cannot have any legal force as the Government have no authority to vary a statutory rule and impose different conditions contrary to statutory rules.

3. A counter-affidavit has been filed on behalf of the 1st respondent-State. In the counter-affidavit it is stated: By Ext. P-l the 3rd respondent-District Educational Officer gave sanction, but later, the Government took a decision not to rent out school buildings and compounds as per Ext. P-3. Under Rule 15 Chapter IV of the Kerala Education Rules, the 3rd respondent-District Educational Officer can, not only give permission but has the right to cancel the permission given. The policy of the State is that school buildings and premises should not be allowed to be used for political purposes. The powers conferred on the District Educational Officers in 'this regard are exercised by them according to their discretion. The District Educational Officer corrected his mistake by cancelling the permission.

If the R.S.S. volunteers are allowed to do their activities in the premises of a Government School, chaos and confusion would arise in the locality resulting in disorder and failure of law and order. No rights of the petitioners under Article 19 of the Constitution have been infringed by the issue of Ext. P-2 order. Government felt that the activities of the R.S.S. are harmful to the public tranquillity if they are allowed to stay in a place where children of all community study. By Exts. P-2 to P-4 none of the rights of the petitioners guaranteed under any of the provisions of Constitution of India has been violated. On the basis of the interim stay order of the High Court, permission was granted to the petitioners for the use of the school buildings and premises of Government High School, Chirakkara for 2 days on the 20th and 21st of Jan., 1979 and hence the petitioners cannot have any grievance at present.

4. The petitioners filed a reply affidavit. Along with the reply affidavit Ext. P-5 proceedings dated 27-2-1979 also was produced. In the reply affidavit it is stated: The R.S.S. is not a known or recognised political party but it is only a cultural organisation. The decision taken by the Government is an illegal and arbitrary decision without assigning any reason. A facility offered to several organisations cannot be denied to the petitioners' organisation. There is no declared policy of the State not to give school premises for political party purposes. On 27-2-1979 the 3rd respondent by Ext. P-5 gave permission to the K.S.Y.F., a Youth Wing of the Communist Marxist Party, which is admittedly after Ext. P-3 Government order. On the date when the orders impugned were passed, no statutory rule incorporating the alleged policy of the Government was brought into force and it was incumbent on the part of the officers concerned to implement the rules without discrimination. On previous occasions, the R.S.S. was permitted to use the Government School buildings.

5. An additional counter-affidavit was also filed on behalf of the 1st respondent. In the additional counter-affidavit it is stated: The orders contained in Exts. P-2 to P-4 are perfectly valid and sustain-able. The R.S.S. is an organisation which has really a Hindu communal and revival-istic outlook. It has become a formidable para-military and fanatical organisation. These features distinguish the R.S.S. from any other organisation. It was with a view to prevent any possibility of their activities contaminating the atmosphere of educational institutions where boys and girls in their formative ages will have to assemble that Ext. P-3 instruction was issued. The activities of the R.S.S. have an accent on communal disharmony and hence the Government have every reason to restrict their activities in educational institutions. No such organisation is given sanction to use school premises. As the R.S.S. is distinct from other organisations because of their activities Exts. P-2 to P-4 are not discriminatory.

6. The petitioners then filed another reply affidavit. In the reply affidavit it is stated: The allegation that the R.S.S. is of Hindu communal and revivalistic outlook and is a fanatical para-military organisation is completely denied as utterly false. The activities of the R.S.S. after the cyclone in Andhra and Morvi disaster in Gujarat, had been praised by all political and social leaders including the Prime Minister. The organisation is hundred per cent secular in outlook though the word secularism has been used by utterly anti-secular forces for their own purposes. India is a democratic country and the Constitution of India permits dissemination of any ideas subject to the limitation of the Constitution to the citizens.

7. In Maneka Gandhi v. Union of India ((1978) 1 SCC 248) : (AIR 1978 SC 597) the Supreme Court has said:

'Even when the statute is silent, the law may, in a given case, make an implication and apply, the principle of audi alteram partem. The principle of the maxim which mandates that no one shall be condemned unheard is part of the rules of natural justice. When the test of applicability of the doctrine of natural justice is that for fairness in action an opportunity to be heard should be given to the affected person, there can be no distinction between a quasi-judicial function and an administrative function. The aim of both is to arrive at a just decision and if the rule of natural justice is calculated to secure justice, or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial enquiries only and not to an administrative enquiry. Sometimes an unjust decision in an administrative enquiry may have far more serious consequences than a decision of a quasi-judicial enquiry and hence the rules of natural justice must apply equally in an administrative enquiry which entails civil consequences. The law must be taken to be well-settled that even in an administrative proceeding which involves civil consequences the doctrine of natural justice must be held to be applicable.' (Paras 7 to 13)

In the above case the Supreme Court further said:

'Merely because a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights, it does not give a carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the statutory provision. Every order made under a statutory provision must not only be within the authority conferred but must also stand the test of fundamental rights ..... If the restriction imposed by it is so wide, excessive or disproportionate to the mischief or evil sought to be averted then it may be considered unreasonable, and in that event, if the direct and inevitable consequence of the order is io abridge or take away freedom of speech and expression it would be violative of Article 19(1)(a) and would not be protected by Article 19(2); and the same would be the position where the order is in the interests of general public but impinges directly and inevitably on the freedom to carry on a profession in which case it would contravene Article 19(1)(g) without being saved by the provision enacted in Article 19(6).' (Para 36)

In A. K. Kraipak v. Union of India (AIR 1970 SC 150). The Supreme Court has said:

'The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.' (Para 13)

In McInnes v. Onslow-Fane ((1978) 1 WLR 1520) the questions that came up for consideration before the Chancery Division were whether the British Boxing Board of Control was bound to give a hearing to the applicant before his application for boxers' manager's licence was rejected and whether the Board of Control was bound to give reasons for rejection. The Chancery Division held:

'First, there are what may be called the forfeiture cases. In these, there is a decision which takes away some existing right or position, as whre a member of an organisation is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refuses to grant the applicant the right or position that he seeks, such as membership of the organization, or a licence to do certain acts. Third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted..... The distinction is well-recognised, for in general it is clear that the courts will require natural justice to be observed for expulsion from a social club, but not on an application for admission to it. The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.' (Page 1529) In R. D. Shetty v. International Airport Authority ((1979) 3 SCC 489) : (AIR 1979 SC 1628) the Supreme Court referred to an earlier decision in Erusian Equipment and Chemicals Ltd. v. State of West Bengal ((1975) 1 SCC 70) : (AIR 1975 SC 266) and said: 'But the Court, speaking through the learned Chief Justice responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largesse and it cannot, without adequate reason, exclude any person from dealing with it or lake away largesse arbitrarily. The learned Chief Justice said that when the Government is trading with the public, 'the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions..... The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure. This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Govern-ment in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc., must be confined and structured by rational, relevant and non-discriminatory standards or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.' (Para 12)

In the International Airport Authority's case the Supreme Court also referred to Punnen Thomas v. State of Kerala (AIR 1969 Ker 81) (FB) where Mathew J. (as he then was) has said.

'The Government is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.' (Para 10).

In Raja Kulkarni v. State of Bombay (AIR 1951 Bom 105) it has been said:

' 'Equality before law' does not mean an absolute equality of men but it postulates that there shall not be any special privilege by reason of birth or creed or the like in favour of an individual. 'Equal protection' must mean that there will not be arbitrary discrimination made by the laws themselves in their administration.' (Para 40)

In O. K. Ghosh v. E. X. Joseph (AIR 1963 SC 812) the Supreme Court has said:

'A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression 'in the interests of public order'..... A restriction which does not directly relate to public order cannot be said to be reasonable on the ground that its connection with public order is remote or far-fetched.' (Para 10)

In the State of Madras v. V. G. Row (AIR 1952 SC 196) the Supreme Court has said:

'The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into judicial verdict.' (Para 15)

In Anantha Prabhu v. District Collector (1974 Ker LT 291) : (AIR 1975 Ker 117) the restriction that 'mike, loud speaker etc. should not be used at any time' in the order of the District Collector, Erna-kulam sanctioning the Durbar Hall Grounds for the annual day celebrations of the R.S.S. Cochin Branch was challenged. This Court said:

'Condition No. 1 in Ext. P-2 order that 'Mike, Loud Speaker etc. should not be used at any time' therefore amounts to infringement of the fundamental right of freedom of speech and expression in that the said condition stands across the person who speaks or expresses and the persons to whom he speaks or expresses effectively imposing restraints on communication between them which is the essence of the freedom of speech and expression and without which that freedom is futile and meaningless..... The ban is therefore not a reasonable restrictions justifiable under clause (2) of Article 19.' (Paras 9 and 10)

S. A. deSmith in Constitutional and Administrative Law has said:

'Freedom of conscience falls partly within the scope of freedom of expression, partly under freedom of assembly and association'. (Page 474--2nd Edn.) In Ranganathachar v. State (AIR 1967 Mys 53) the challenge was against the decision of the Government of Mysore holding that a candidate who happened to be a member of the R.S.S. was not suitable for appointment as a Munsif. The High Court of Mysore said:

'When there is no other defect in the character or antecedents of a candidate, his membership in an organisation and his participation in the activities thereof, will be an irrelevant consideration, unless the aims, objects and activities of that organisation are such as would have a bearing on the question of his suitability to the post of a Munsiff.....

In the present case, the fact that the petitioner was a member and active participant in the activities of the R.S.S., will be a relevant consideration only if the R.S.S. is an organisation whose tenets, ideology and activities are such as are stated in paragraph 3 of the counter-affidavit. Otherwise, the fact of the petitioner's membership and his participation in the activities of that organisation will be an irrelevant consideration for the opinion to be formed by the Government on the question of the suitability for appointment to the post.' (Para 5).

The Court further said:

'In these circumstances, we are satisfied that the mere fact that the petitioner was a member of the R.S.S. and participated in its activities, is a consideration which is irrelevant for the purpose of determining his suitability for appointment to the post of a Munsiff.'

In Narain Dass v. Improvement Trust, Amritsar (AIR 1972 SC 865) the question that arose was whether the acquisition of the appellants' lands could be abandoned under Section 56 of the Punjab Town Improvement Act, 1922. The appellants also contended that in identical circumstances the lands of two others were exempted from acquisition and hence the denial of exemption in the case of the appellants was hostile discrimination. The Supreme Court came to the conclusion that Article 14 can by no means help the appellants for claiming exemption under Section 56 when the requirements of that section were not satisfied in the case of the appellants. The Supreme Court said:

'In any event if the appellants have failed to bring their case within Section 36 of the Act then merely because some other party has erroneously succeeded in getting his lands exempted ostensibly under that section that by itself would not clothe the present appellants with a right to secure exemption for their lands. The rule of equality before the law or of the equal protection of the laws under Article 14 cannot be invoked in such a case.' (Para 6)

It is pertinent to note that in the above case the Supreme Court has also said:

'In other words, equal laws have to be applied to all persons in the same situation and there must be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.' (Para 6)

In Adilaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (67 Comm LR 116) the main questions that arose for consideration are: Does Section 116 of the Australian Constitution prevent the Commonwealth Parliament from legislating to restrain the activities of a body, the existence of which is, in the opinion of the Governor General, prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, if that body is a religious organisation? Can any person by describing (and honesty describing) his beliefs and practices as religious except himself from obedience to law? Does Section 116 protect any religious belief or any religious practice irrespective of the political or social effect of that belief or practice? Jehovah's witnesses is an association of persons who believe that God, Jehovah, is the Supreme ruler of the Universe.

They proclaim and teach publicly that the British Empire and also other organised political bodies are organs of Satan, unrighteously governed and identifiable with the Beast in the thirteenth Chapter of the Book of Revelation. They also believe that when there is conflict between the laws of Almighty God and the laws of man the Christian must always obey God's law in preference to man's law. By virtue of the powers under the National Security (Subversive Associations) Regulations, the Attorney General of the Commonwealth directed an officer of the Commonwealth to take possession of the Kingdom Hall belonging to the Adelaide Company of Jehovah's witnesses incorporated. This was challenged before the High Court of Australia. The High Court held:

'It has already been shown that beliefs entertained by a religious body as religious beliefs may be inconsistent with the maintenance of civil government. The complete protection of all religious beliefs might result in the disappearance of organised society, because some religious beliefs, as already indicated, regard the existence of organized society as essentially evil.' (Page 126)

'Freedom of speech is a highly valued element in our society. But freedom of speech does not mean that an individual is at liberty to create a panic in a theatre by raising a false alarm of fire, as was pointed out in the United States of America in the case of Schenck v. United States ((1919) 249 US 47).' (Page 127)

'The Supreme Court said in Jones v. Opelika ((1942) 316 US 584) with reference to the constitutional guarantees of freedom of speech, freedom of press and freedom of religion: 'They are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument'. It was held that these privileges must be reconciled with the right of a State to employ the sovereign power to ensure orderly living 'without which constitutional guarantees of civil liberties would be a mockery'.' (Page 127)

'The result has been that the Supreme Court of the United States has refused to regard the provisions relating to freedom of religion, freedom of assembly and freedom of speech as involving the invalidity of all laws which in any degree interfere with such freedom.' (Page 128)

The High Court further held:

'It may be going too far to say that self-protection is 'the sole end' which justifies any governmental action. But I think it must be conceded that the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. Otherwise the protection of liberty would be meaningless and ineffective. It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community. The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organised. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom. The final determination of that question by Parliament would remove all reality from the constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and bv declining to enforce them. The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded as a law to protect the existence of the community, or whether, on the other hand, it is a law 'for prohibiting the free exercise of any religion.' The word 'for' shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character.' (Pages 131 & 132)

In Himat Lal v. Police Commissioner, Ahmedabad (AIR 1973 SC 87) the Supreme Court had occasion to point out:

'By the time the case was heard, the two impugned orders had become infruc-tuous by lapse of time. The High Court, however, examined the other contentions raised before it because it felt that the organisation, of which the appellant was an office-bearer, had to organise meetings on a number of occasions and every time the question of applying for permission would arise.' (Para 6)

In Kameshwar Prasad v. State of Bihar (AIR 1962 SC 1166) on the question whether the right to make a demonstration is covered by either or both of the two freedoms guaranteed by Articles 19(1)(a) and 19(1)(b) of the Constitution, the Supreme Court held:

'It necessarily follows that there are forms of demonstration which would fall within the freedom guaranteed by Articles 19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1) (a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.' (Para 13)

In Secretary of State for Education and Science v. Tameside M.B.C. ((1977) AC 1014) the House of Lords has said:

'Much depends on the matter about which the Secretary of State has to be satisfied. If he is to be satisfied on a matter of opinion, that is one thing. But if he has to be satisfied that someone has been guilty of some discreditable or unworthy or unreasonable conduct, that is another. To my mind, if a statute gives a minister power to take drastic action if he is 'satisfied' that a local authority has acted or is proposing to act improperly or unreasonably, then the minister should obey all the elementary rules of fairness before he finds that the local authority is guilty or before he takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or unreasonableness and a fair opportunity of dealing with it. I am glad to see that the Secretary of State did so in this case. He had before him the written proposals of the new council and he met their leaders. In addition, however, the minister must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider and the decision to which he comes must be one which is reasonable in this sense: that it is, or can be, supported with good reasons or at any rate is a decision which a reasonable person might reasonably reach.' (Page 1025).

8. At the fag end of the hearing the learned counsel for the petitioner wanted to refer to the Constitution of the Rash-triya Swayamsevak Sangh. Accordingly, the same was produced as Ext. P-5 along with C.M.P. No. 1162 of 1981.

9. As per order on C.M.P. No. 904 of 1979 passed on 19-1-1979 the operation of Ext. P-2 proceedings of the 3rd respondent-District Educational Officer, Telli-cherry cancelling the sanction Ext. P-1 was stayed and the delegates were allowed to use the school premises for their stay on certain conditions.

10. Rule 15, Chapter IV of the Kerala Education Rules, 1959 reads:

'15. Use of school buildings and properties:-- (1) The premises of an educational institution (Government or private) or any subsidiary building appertaining to it or a playground or vacant site belonging to the institution whether adjacent to or removed from it, shall ordinarily be used only for the purposes of functions conducted by such institution But the Executive Authority of the local body concerned in the case of an institu-tion under the control of a local body, the Dist. Educational Officer in the case of a Government school and the Manager in the case of a private school, is empowered to grant permission on such conditions as he deems fit to impose for the use of such building, or ground or site belonging to the institution for holding public functions arranged by the management or by a department of the State or the Government of India or for any other purposes.....'

Rule 15A of Chapter IV of the K. E. R. inserted by Notification dated 24-10-1979 reads:

'15A. (1) Notwithstanding anything contained in Rule 15, Govt. shall have power to issue directions that the school buildings and their properties (Government or private) shall not be used for any purpose specified in such directions and such directions when issued shall be binding on the departmental authorities and the Educational Agencies .....'

As per Rule 15, the District Educational Officer has the power to grant permission for the use of Government school buildings for holding public functions. Of course, the power to grant permission includes the power to refuse permission also. But that does not mean that permission can be refused at the sweet will and pleasure of the Officer or the Government. The scheme of the provisions is such that granting permission is the rule and refusal of the permission is the ex-ception. So, permission cannot be refused arbitrarily. This is all the more so when some organisations are given permission to use Government school buildings for the public functions organised by them. In the above circumstances, one who applies for permission to hold a public function in a school building can reasonably and legitimately expect that he is also likely to get the permission that others are given. In such a case, before one is refused permission, it is only proper to put it to him why he could not be given permission. At any rate, a laconic order cannot be passed refusing permission when others are given permission.

The Government and their Officers have a duty to act in a just and fair manner. Government cannot pick and choose the persons with whom they will deal. If the Government don't want to allow public functions to be held in Government schools, they can frame rules accordingly and deny permission to all. But if they are giving permission to some, they can-not deny the same to others arbitrarily. The discretion in this regard should not result in discrimination. The freedom of expression and the freedom of assembly form part of the freedom of conscience. These fundamental rights guaranteed by the Constitution of India can only be subject to reasonable restrictions. If the activities of an organisation are a threat to the security of the State, the State has the power not to allow it to function. Its activities can very well be banned.

If there is a valid ban, then such an organisation cannot complain that its fundamental rights are infringed if it is denied the privileges and patronage extended to others by the State. But as long as an organisation is allowed to continue its activities, if it is denied privileges like the use of Government school buildings for public functions which other organisations are allowed, it will not only result in hostile discrimination but the fundamental rights guaranteed under the Constitution will also be infringed. Rule 15A inserted by Notification dated 24-10-1979 cannot improve matters. Simply because the Government is given the power to issue directions it cannot be said that the Government have the power to discriminate between organisation and organisation and prevent some from using Government school buildings for their public functions. So, as long as the Rashtriya Swayamsevak Sangh is allowed to function in this State they cannot be denied permission to use Government school buildings for their public functions when other similar organisations are given permission.

11. By Ext. P-1 the petitioners were given sanction to use the building of the Government High School, Chirakkara for the stay of the R.S.S. members on the 20th and 21st of January, 1979. But by Ext. P-2 proceedings dated 15-1-1979 the sanction accorded was cancelled without assigning any reason. This was simply wrong and illegal. Article 14 of the Con -stitution is violated as other similar organisations are given such permission. Even if Ext. P-2 is based on Ext. P-3 Government letter, that cannot save the situation. The Government have no power to single out the R.S.S. and deny permission when others are given the permission. The Government in a democratic country have a duty to act fairly and hence Government cannot exercise their discretion in violation of the principles of natural justice.

The contention that Exts. P-3 and P-4 are only letters and hence cannot be struck down in these proceedings cannot also be accepted as Ext. P-2 cancellation was based on Exts. P-3 and P-4. The contention that the original petition has become infructuous cannot also be accepted. It goes without saying that the petitioners will require Government school buildings in future also for their functions. So, this Court can in these proceedings decide the questions raised even though the function for which the permission was requested for was already over. The decision will not be without a purpose,

12. In the result, Exts. P-3 and P-4 are quashed. The original petition is allowed as above. No costs.

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