PWG Ban: State Government FloutsLawK 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.

THE Criminal Law Amendment Act was

passed in 1908 and obviously it is a pre-

Constitutional enactment and as the provi

sions have very far-reaching effects on the

fundamental rights and the Constitutio nal

value system, normally some care should

have been taken in examining the provisions

Of the law carefully before it is brought in

to force. While the present government is not

expected to know the historic struggles

which its party members and other revolu

tionary groups carried on against the Briti sh,

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

Cri min al Law Amendment (Madras) Act of 

1950. To cover the Telengana area a no tifica

tion was issued under truncated provisions

of The Hyderabad Public Security Act 1348

Fasli.

The government of Madras exercising the

powers of Crim ina l Law Amendment Act ,

1908, banned an organisation called the

Peoples Education Society on March 10,

1950, The said society had for its object in

terference with the administration for

maintenance of law and order and con-

stituted 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

Dun il Nadu} Amending Act, 1950 and issued

notification under section 16 of the act. The

Madras High Court allowed the writ peti

tion and the matter was carried to the

Supreme Coun 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 def initio ns in the sections.

The "unlawful association" means an

association:

(a) which encourages or aids persons to com

mit acts of violence or int imid atio n or

of which the members habitually com

mit such acts, or

(b) Which has been declared to be unlawful

by the provinc ial 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 amend

ments, sections 16 and 16-A. While there is

no amendment of section 17, section 17-A

to F was introduced. Thus what fell for con

sideration before the Supreme Court was

section 15(2Xb) which is the principal sec

tion 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 Ind ian Cri min al Law

Amendment (Andhra Pradesh) (Andhra

area) Act, IX of 1950 which is applicable

to areas wh ich fo rmer ly were part of 

the Madras Province and Andhra state

subsequently.

Section 15(2)(b) of the Madras amend

ment 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 noti

fication) 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 noti fy and

take possession of places used for unlawful

association. Th is was amended by add itio n

of two sub-clauses 2(a) and 2(b) which em

powers the party dispossessed to approach

the Chief Judge, Small Causes Court or the

District Judge according as the place notif-

ed is situated wi th in 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

not ific ation 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 pro

cedure ind ica ted 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 pro

ceedings 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 considera

tions 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 ti al reactions in the religious,

poli tical 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 inq uiry, is a strong

element which, in our opinion, must be

taken into account in judging the reason

ableness of the restrictions imposed by S

15(2Kb) on the exercise of the fundamental

right under Art 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 govern

ment, can be a substitute for a judi cia l en

quiry. 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

 ju di ci al approval as a general pat tern of 

reasonable restrictions on fundamental

rights. They also dealt wi th the inadequacy

of the notice periods, the manner o f publica

ti on of notice and ultima tely held that hav

ing regard to the peculiar features to which

references has been made, section 15(2)(b)

of the Cr im in al Law Amen dment Act 1908

and amended by the Cr imi na l Law Amend

ment 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 thecla im of the government in seeking, by the

mere declatation, to shut out judicial enquir y into the underlying facts under Cl(b) .Secondly, the East Punjab Pub lic Safety Act

(the government relied on this act to justifythe provisions) was a temporary enactment

which was to be in force only for a year, andany order made thereunder was to expire at

the termination of the act. What may beregarded as a reasonable restriction impos-

Economic and Pol iti cal Weekly June 13-20, 1992 1243

 

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 there

under would continue in operation for an

indefinite period until the government

should think fit to cancel it".

The state government has passed the ban

ning 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 pro-

visions to ban LTTE if that act was alive.

It was because this Act was struck down, the

Tamil Nadu government requested the cen

tra l government to ban the LTTE.

PWG was under a de facto ban for over

two decades now. The de jure ban is to muz

zle human rights organisations and

newsmedia, Editors are contacted by phone

and are asked to co-operate with them—

some friendly fascism this—and the jour

nalist 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

wi ll come wi th in the meaning of the words

aid, encourage the activities of the unlawful

activity of PWG and will be looked upon as

interference wit h the administr ation o f 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 WaneM Shatrugna

The poor performance of the ruling Congress(I) in the recent by-elections to the Andhra Pradesh legislative assembly isattributable 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 Himayath

nagar (the seat having fallen vacant due to

the elevation of the sitting M L A and 'dissi

dent' APCC(I) president, V Hanumantha

Rao to the Rajya Sabhaj, It nowever, manag

ed to retain the Sanathnagar seat by a nar

row margin of about 2,000 votes.

In the Allagadda (falling within NandyalLok 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 continuin g 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 con-stituencies. The present election, caused by

the death of Sekhar Reddy, saw the victor

B V Nagi Reddy, the brother of the deceased.

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 major ity 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 Sanalh-

nagar 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. Whi le he polled

about 22,000 votes, the BJP candidate polled

about 20,000 votes and the TDP about

18,000 votes. The Sanathnagar constituen

cy 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 Con-

gress(i) by the TDP in 1983. The TDP re

tained in 1985 as well. Bui in 1989, MarriChenna Reddy won the scat. Now, after his

appointment as governor of Rajasthan, the

ticket was given to his son by the high com

mand 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 opposi

tion to Reddy wi thi n 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 elec

torate 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 p ol l unsuccessfully from the

Himayathnagar constituency. Later in a

by-election he won the seat defeating

P Upendra (the breakway TDP Rajya Sabha

MP) by a narrow marg in, Narendra won the

Himayathnagar seat once again in 1985,

following an electoral understanding bet

ween his party and the TD P However, he

lost the seat to V Hanumantha Rao of the

Congress(I) in the 1989 polls. The Con-

gress(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 polit ical

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 quick

ly 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 Con-

gress(I) found itself at the receiving end of 

rigging and booth capturing.

When the demand for a repol l 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.

1244Economic and Political Weekly June 13-20, 1992