PWG Ban: State Government Flouts Law

K G Kannabiran The Andhra Pradesh government has passed the order banning the PWG under a provision which has been struck down exactly 40 years back. This is nothing short of flouting the order of the court.
T H E Criminal Law Amendment Act was passed in 1908 and obviously it is a preConstitutional enactment and as the provisions have very far-reaching effects on the fundamental rights and the Constitutional value system, normally some care should have been taken in examining the provisions Of the law carefully before it is brought into force. While the present government is not expected to know the historic struggles which its party members and other revolutionary groups carried on against the British, it should at least learn to abide by law and the Constitution. Two orders were issued by the government of Andhra Pradesh, one for the Andhra area and the other for the Telengana area. The Criminal Law Amendment Act of 1908 is used for the Andhra area, of Andhra Pradesh and the Hyderabad Public Security Act 1348 Fasti for the Telengana area. Under the former act the notification was issued under section 15(2)(b) of the Indian Criminal Law Amendment (Madras) Act of 1950. To cover the Telengana area a notification was issued under truncated provisions of The Hyderabad Public Security Act 1348 Fasli. The government of Madras exercising the powers of Criminal Law Amendment Act, 1908, banned an organisation called the Peoples Education Society on March 10, 1950, The said society had for its object interference with the administration for maintenance of law and order and constituted a danger for public peace and was therefore declared an unlawful association. The Madras government exercised powers under section 15(2)(b) of the Madras (now Dunil Nadu} Amending Act, 1950 and issued notification under section 16 of the act. The Madras High Court allowed the writ petition and the matter was carried to the Supreme C o u n by the Madras state. The Supreme Court examined the Madras Amendment Act No 11 of 1950, Before set ting out the amended provisions which came up for consideration to the Supreme Court it is necessary to understand the scope and ambit of the provisions which is generally disclosed by the definitions in the sections. The "unlawful association" means an association: (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) Which has been declared to be unlawful Economic and Political Weekly by the provincial government under the powers hereby conferred. The amending act passed by the Madras Act amended clause (b) of section 15(2), substituted for section 16, its own amendments, sections 16 and 16-A. While there is no amendment of section 17, section 17-A to F was introduced. Thus what fell for consideration before the Supreme Court was section 15(2Xb) which is the principal section in the act and the others in the act and it is this Tamil Nadu amending act which has been adopted by the Andhra Pradesh state by Andhra Pradesh Laws (Amendment of Short Titles) Act, 1961 where the act has been amended as Indian Criminal Law Amendment (Andhra Pradesh) (Andhra area) Act, IX of 1950 which is applicable to areas which formerly were part of the Madras Province and Andhra state subsequently. Section 15(2)(b) of the Madras amendment reads as follows: (b) which has been declared by the state government by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association: (i) constitutes a danger to the public peace, etc, (ii) has interfered or interferes with the administration of law or has such interference for its object, or (iii) has interfered or interferes with the administration of the law or has such interference for its object. Section 16-A of the act provides for representation to the Advisory Board in terms of the time fixed in the notification for making such representations. Section 17-A empowers the government to notify and take possession of places used for unlawful association. This was amended by addition of two sub-clauses 2(a) and 2(b) which empowers the party dispossessed to approach the Chief Judge, Small Causes Court or the District Judge according as the place notifed is situated within the presidency town or outside, for a declaration that "the place has not been used for the purpose of any unlawful association". If such declaration is made, the government shall caned the notification by which it took possession of the place. Section 17-B empowers the officer taking possession of a notified place to forfeit movable property found in the premises if he opines that such property "is or may be used" for the purpose of unlawful

association but only after following the procedure indicated Section 17-E empowers the government, to forfeit funds of an unlawful association if it is satisfied, after enquiry, that such funds are being used or intended for purposes of unlawful association. The procedure to be followed also is indicated. Section 17-F prohibits the civil courts to entertain any suit or matter in respect of proceedings taken under section 17-A to E of the amended act, The Supreme Court after surveying the aforesaid provisions held; "Giving due weight to alt the considerations indicated above, we have come to the conclusion that S 15(2)(b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by Art 19 (I)(c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such pr i t i a l reactions in the religious, political and economic fields that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects, to be duly tested in a-judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by S 15(2Kb) on the exercise of the fundamental right under A r t 19 (1)(c); for no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the government or of its officers, with an Advisory Board thrown in to review the materials on which the government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only iii very exceptional circumstance and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. They also dealt with the inadequacy of the notice periods, the manner of publication of notice and ultimately held that having regard to the peculiar features to which references has been made, section 15(2)(b) of the Criminal Law Amendment Act 1908 and amended by the Criminal Law Amendment Act (Madras), 1950 falls outside the scope of the restrictions under clause 4 of Article 19 and therefore unconstitutional gnd void" The court went on to observe "we are unable to discover any reasonableness in the claim of the government in seeking, by the mere declatation, to shut out judicial enquiry into the underlying facts under Cl(b). Secondly, the East Punjab Public Safety Act (the government relied on this act to justify the provisions) was a temporary enactment which was to be in force only for a year, and any order made thereunder was to expire at the termination of the act. What may be regarded as a reasonable restriction impos1243

June 13-20, 1992

ed under such a statute will not necessarily be considered reasonable under the impugned act. as the latter is a permanent measure, and Any declaration made thereunder would continue in operation for an indefinite period until the government should think fit to cancel i t " . The state government has passed the banning order under a provision which has been struck down exactly 40 years back, The chief minister and his advisers ought to have known that the Tamil Nadu government would have been the first to invoke these provisions to ban LTTE if that act was alive. It was because this Act was struck down, the Tamil Nadu government requested the central government to ban the LTTE. PWG was under a de facto ban for over

two decades now. The de jure ban is to muzzle human rights organisations and newsmedia, Editors are contacted by phone and are asked to co-operate with them some friendly fascism thisand the journalist reporters and stringers in the rural areas are threatened saying any reporting of encounters, deaths in custody, etc, or publishing the statements left by the PWG will come within the meaning of the words aid, encourage the activities of the unlawful activity of PWG and will be looked upon as interference w i t h the administration of law and order. An atmosphere of fear is generated. it is nothing short of flouting the order of the court by using an act which was struck down.

ANDHRA PRADESH

Congress (I) Popularity on Wane

M Shatrugna

The poor performance of the ruling Congress(I) in the recent by-elections to the Andhra Pradesh legislative assembly is attributable to factionalism, casteism and internal sabotage in the party
OF the three assembly seats in Andhra Pradesh for which by-elections were held, the Congress was defeated in Allagadda by margin of over 10,000 votes by the Telugu Desam. and routed by the BJP in Himayathnagar (the seat having fallen vacant due to the elevation of the sitting M L A and 'dissident' APCC(I) president, V Hanumantha Rao to the Rajya Sabhaj, It nowever, managed to retain the Sanathnagar seat by a narrow margin of about 2,000 votes. In the Allagadda (falling within Nandyal Lok Sabha constituency) by-election the Congress(I) candidate was Gangula Prabhakar Reddy, younger brother of Gangula Pratapa Reddy, Rajya Sabha MP. Pratapa Reddy himself was a Lok Sabha member from Nandyal in 1989 having vacated his seat in favour of P V Narasimha Rao last year. His 'sacrifice', earned him a Rajya Sabha early this year. The defeat of the Congress(l) in this constituency is not only indicative of its waning popularity but also of the continuing charisma of NTR in rural Rayalaseema. Though Allagadda was a Congress(I) bastion for about 30 years, before the TDP wrested the seat in the 1983 assembly elections. In the 1985 assembly elections,, its candidate B V Sekhar Reddy missed victory by a narrow margin of 1,200 votes. But in 1989. Sekhar Reddy regained the seat from the Congress(I) though the TDP did not fair well in the adjoining constituencies. The present election, caused by the death of Sekhar Reddy, saw the victor B V Nagi Reddy, the brother of the deceased. 1244 The defeat of the Congress(l) in Allagadda is all the more significant as it forms part of Nandyal Lok Sabha constituency where P V Narasimha Rao had won the seat with a record majority of over five lakb votes last year and involved the personal and political prestige of the union law minister Kotla Vijayabhaskar Reddy, overall incharge of the party's election campaign in Allagadda, In the predominantly industrial Sanalhnagar constituency in the twin cities, it was a close fight with Marri Sashidhar Reddy (son of Marri Chenna Reddy) winning the seat by a 2,000-vote margin. While he polled about 22,000 votes, the BJP candidate polled about 20,000 votes and the TDP about 18,000 votes. The Sanathnagar constituency has about 50 per cent backward castes (with 30 per cent munnuru kapus, the most prosperous among the BCs), 15 per cent Muslims, 10 per cent SCs and 18 per cent others. The seat was wrested from the Congress(i) by the T D P in 1983. The T D P retained in 1985 as well. Bui in 1989, Marri Chenna Reddy won the scat. Now, after his appointment as governor of Rajasthan, the ticket was given to his son by the high command despite strong opposition from the chief minister, In the normal course, Reddy should have won the seat as the opposition vote was divided between the TDP and the BJP. The slender margin shows the opposition to Reddy within the patty and the 'cool' attitude adopted by the state labour minister P Janardhan Reddy, arch political rival of Chenna Reddy. Janardhan Reddy is the most powerful trade union musclernan of the

Sanathnagar industrial belt. It appears that the upper castes and the minorities by and large voted for the Congress(I) with a split of the BC vote between the BJP and TDP, both having fielded candidates belonging to the BC community. The last minute decision of the M I M to support Reddy appears to have made his victory possible as S S Owaisi is an old time friend of Chenna Reddy In fact Owaisi had publicly appealed to the Muslim voters to support the Congress(I) in all the three seats. It was an entirely different story in the predominantly middle class Himayathnagar constituency. Himayathnagar with an electorate of about 40 per cent BCs, 10 per cent SCs, 15 per cent Muslims and 30 per cent other castes is a sprawling constituency. The present winner Ale Narendra of the BJP belonging to the backward class has had a chequered political career. A small time toughy in the 70s, he was a MISA detenu during Emergency and had contested the 1983 assembly poll unsuccessfully from the Himayathnagar constituency. Later in a by-election he won the seat defeating P Upendra (the breakway T D P Rajya Sabha MP) by a narrow margin, Narendra won the Himayathnagar seat once again in 1985, following an electoral understanding between his party and the T D P However, he lost the seat to V Hanumantha Rao of the Congress(I) in the 1989 polls. The Congress(I) candidate this time C Jagannatha Rao, a staunch follower of P V Narasimha Rao, was given the ticket against the wishes of the chief minister. For Jagannatha Rao, it was a virtual political resurrection, having won the last election more than 20 years ago from Narsapur in Medak district. Though he was a deputy chief minister and home minister for some time in the late 70s, he has had a lack-lustre political career. His political resurrection was disliked not only by the chief foinister but also by a number of other Congress men especially belonging to the Reddy community as they perceived Rao as a symbol of the emerging backward classes bidding for political power Internal sabotage coupled with a collusion between the state administration (especially police) and the BJP led to massive rigging of the polls, alleged Rao in a letter sent to the Chief Election Commissioner soon after the polls. He further alleged that the rigging had the blessings of the chief minister. But be quickly retracted his allegation. Polling day had witnessed unprecedented rigging, booth capturing and impersonation, indulged in by all the major parties with the BJP taking the lead, For once, the Congress(I) found itself at the receiving end of rigging and booth capturing. When the demand for a repoll was studied by the Central Election Commission (CEC), the BJP indulged in unprecedented rowdyism to pressurise the CEC to order counting of the votes. As part of the pressure tactics they assaulted the Chief Electoral Officer of the state, C R Kamalanathan on June 12. June 13-20, 1992

Economic and Political Weekly