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An Anti-ConstitutionalAnd Totalitarian Order By The “Big Brother”

By Advocate S. Sathiachandran & Dr. Iniyan Elango

03 March, 2013
Countercurrents.org

The Chennai police commissioner passed an order on 03.03.2012 under section 144 of Criminal Procedural Code ordering the landlords and house owners under the jurisdiction of the Greater Chennai City to furnish full particulars of their tenants to the SHO (Station House Officer) of their jurisdiction and continue to furnish such particulars in future as well. The order further states that any person contravening this order shall be punishable under section 188 of the Indian Penal Code. This essay critically analyses this totalitarian and ultra-authoritarian police order that infringes on civil liberties, constitutional rights, personal freedom and the right to privacy with the intent to “ethnically profile” Chennai city residents from outside of Tamil Nadu state as “potential criminals” and forcibly record their identities, addresses and personal information. The authors of this article were instrumental in litigating against this fascist order and obtaining an injunction against it in the High court of Chennai.

The Chennai Police Commissioner's Order dated 3rd March 2012 which orders house owners and land lords in Greater Chennai area to hand over personal details about tenants living in their premises in a form prescribed by the Police is an overtly anti-constitutional and shamelessly totalitarian act of state fascism and authoritarian extremism which violates the civil liberties and human rights of the citizens. It particularly tramples on the right to privacy enshrined in several Supreme Court judgments and also violates the right to equality before law and right to liberty that are enshrined in the Indian constitution.

It is important to look into the background developments that led to the passing of this draconian order by the Chennai Police. On the night of 22/23.02.2012, five persons were shot dead in an alleged encounter in Velachery in Chennai City wherein the deceased persons were said to have been involved in a bank robbery in the City in early February 2012. Going by the facts that emerged from various news reports and witness accounts which appeared in the media, the encounter was widely believed to be a fake one and every concerned citizen conscious of human rights and civil liberties condemned the incident as coldblooded murder.

To justify the alleged “encounter”, the entire state machinery indulged in a massive propaganda campaign through the media to make gullible people believe that the police was justified in enacting the encounter even if it was fake. Not satisfied with these covert measures to turn the public opinion wave into their favour, the Tamil Nadu police and governmental apparatus made attempts to make the citizens believe as if there is a serious threat to law and order/public order at the hands of persons from outside the state such as migrant labourers, students, tourists, professionals etc. In order to falsely imbibe this disaffection/enmity towards persons from other states, the Chennai police commissioner and other higher police top-brass started portraying persons from outside the state as indulging in anti-social activities in their media statements.

As far as any discerning citizen could observe it is not the persons from outside the state alone who commit offences in Tamil Nadu state and such cases are very negligible as on date. While so, the campaign that was let loose by the Tamil Nadu police describing persons from outside the Tamil Nadu state as offenders and criminals was not only false but also highly discriminatory, mischievous and also constitutionally impermissible.

As stated earlier, the Chennai police commissioner passed an order on 03.03.2012 under section 144 of Criminal Procedural Code ordering the landlords and house owners under the jurisdiction of the Greater Chennai City to furnish full particulars of their tenants to the Station House Officer of their jurisdiction and continue to furnish such particulars in future as well. The order further states that any person contravening the order shall be punishable under section 188 of the Indian Penal Code. The above order was not published in any of the dailies for public information. However, the print and electronic media carried reports regarding the order. Only the official website of the Tamil Nadu police carried a copy of the order. Along with the impugned order, there was a format provided for furnishing the information of tenants in the Tamil Nadu police website.

From the day the order was said to have been passed there was panic and fear psychosis among persons from outside the Tamil Nadu state who were staying in Chennai and its suburbs as tenants. We have interacted with a number of persons hailing from outside the state from different walks of life who were now staying in Chennai and they were expressing their dismay and anguish over the aforementioned order of Chennai Police Commissioner which was aimed at targeting residents of Chennai who were from other states while preposterously presuming that all people residing as tenants in the Chennai area as anti-social individuals whose personal information should be reported to the Police for enumeration and identification. We also had discussions with human rights activists working amongst migrant labourers and they were also worried about harassment of migrant labourers by the Police, land lords and employers because of the Chennai Police Commissioner’s aforementioned order.

The aforementioned order of the Chennai police commissioner passed on 03.03.2012 under section 144 of the Criminal Procedure Code is wholly violative of Articles 14, 19(1)(e) & (g) and 21 of the Constitution of India, and hence is blatantly anti-constitutional.

The impugned order of the Chennai Police Commissioner is wholly without jurisdiction as neither Section 144 of Criminal Procedural Code nor any other law authorizes him to collect the personal particulars of the citizens, in the guise of collecting the details of tenants in the Greater Chennai City police limits. In the absence of any legislative sanction empowering the Chennai Police Commissioner to do so, the impugned order is also unconstitutional.

The impugned order of the Chennai Police Commissioner also mandates the landlords and house owners to collect personal particulars of their tenants such as their names, phone numbers, mobile numbers, names, gender and age of children and spouses, addresses of their employers, occupation, states and towns of origin, etc., and to furnish the same to the station House Officers of the jurisdictional police stations. The impugned order says that any contravention of the order is punishable under Section 188 of the Indian Penal Code. Not only the mandate imposing the obligation on the landlords and house owners is without any authority of law, the threat of prosecution also does not have any authority of law.

This police order also violates the constitutional right to protection of personal liberty by forcing tenants to hand over personal details about their work, family members, addresses, phone numbers, etc., to the police (and by also forcing land lords to hand over such personal details of tenants to the police) which violates article 21 of the constitution which mandates that no person will be deprived of personal liberty except according to procedure established by law. In addition, this police order also violates the right to privacy of citizens as enshrined in various supreme court judgments by forcing the tenants to hand over their personal details regarding their work, family members, telephone numbers and addresses, and by also forcing the land lords to hand over such personal details of tenants to the police.

The impugned order of the Chennai Police Commissioner categorizes the residents of Chennai city into two, viz., the landlords/house owners as one category and the tenants as the other and further, it attaches a stigma on tenants by presuming that they are anti-social elements posing danger to public tranquillity and public peace. On this basis, the impugned order requires the landlords/house owners to furnish full particulars of their tenants in the prescribed form to the Station House Officer of the jurisdictional police station. The above categorization is not only irrational but also unconstitutional. The said categorization is not based on any intelligible differentia. Further, the categorization has no nexus with the object. It proceeds on the preposterous assumption that all tenants are anti-social elements and all landlords/house owners are law-abiding. This is an atrocious violation of the concept of equality before law and equal protection of law as guaranteed under Article 14 of the Constitution of India and hence, the impugned order is liable to be declared as such.

The right to equality before law (which states that the state shall not deny to any person equality before the law or the equal protection of the laws) mandates that all citizens should be treated equally before law, and hence some citizens such as tenants in houses of a particular city cannot be treated differently and discriminatorily by the law and forced to give their personal details regarding work, family members, phone numbers and addresses, while other citizens in other parts of the nation are not forced to do so. Similarly, land lords have the right to be treated equally like other citizens before the law and hence the law cannot discriminate against land lords and house owners by forcing them to hand over personal details about tenants to the police. Hence this order violates article 14 of the constitution which assures the right to equality before the law to all citizens.

The impugned order is also violative of Article 19(1)(e) of the Constitution of India which guarantees to every citizen the right to reside and settle in any part of the territory of India. The unwarranted impugned order completely negates this valuable right of the citizens. Merely because a person resides in rented premises, the law cannot presume that he is having lesser rights than other citizens.

It is a well-known fact that the tenants in the city of Chennai comprise of persons practicing various professions, occupations, trades or businesses. While so, the impugned order without any basis whatsoever terms such citizens as anti-social elements merely because they are tenants. The same is violative of Article 19(1)(g) of the Constitution of India.

The impugned order also offends the right to privacy and the right to dignity of persons who are residing in rented premises by subjecting them to personal scrutiny without any reason whatsoever.

The impugned order of the Chennai Police Commissioner promotes enmity between different groups viz., the landlords/house owners on the one side and the tenants on the other side and attempts to promote disharmony, feelings of enmity, hatred and ill will, which is an offence punishable under Section 153A of the Indian Penal Code, by the state itself and the same is wholly impermissible in law.

The impugned order purported to have been passed under section 144 of Criminal Procedure Code falls under “section B-Public Nuisances” in Chapter-X under the caption “Maintenance of Public Order and Tranquillity”. It is not in dispute that to maintain public order and tranquillity, section 144 of the Criminal Procedural Code empowers a District Magistrate to issue certain orders. However, the fact of the situation as stated by the Chennai Police Commissioner in his impugned order does not in any way relate to maintenance of public order and tranquillity. On the contrary, the involvement of persons in crimes is only a problem of law and order and certainly is not an issue of public order. The Supreme Court of India and the state High Courts have categorically distinguished these two concepts and have held that both cannot be inter-changed.

The impugned order has been passed purportedly for preservation of public peace, public safety and maintenance of public order. However, the Chennai Police Commissioner has failed to place on record any single material to show that there was threat to public peace, public safety and maintenance of public order. He simply states in the preamble portion of the impugned order that it has come to notice that anti-social elements in the guise of tenants are in occupation of various residential premises in the City of Greater Chennai posing danger to public tranquillity and public peace.

Though the impugned order states in paragraph no.2 that it shall remain in force for a period of 60 days i.e., from 03.03.2012 to 01.05.2012 (inclusive of both days), it stipulates in paragraph no.1 that the landlords/ house owners of the residential premises shall henceforth furnish particulars of the tenants in the prescribed form to the SHO of jurisdictional police station at the time of let/sublet/renting out any accommodation to any person making the order a permanent one which is totally opposed to Law.

This order is totalitarian and fascist in nature, and will lead to authoritarian and corrupt misuse of such personal data of tenants and land lords by the police and vested interests in the police and governmental authority. For example, the Police may misuse and abuse the personal data of individual citizens collected under this order to target, harass and persecute tenants and land lords belonging to a particular place of birth, religion, ethnicity, state, caste or gender, thus also violating article 15 of the constitution that guarantees Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. There are already media reports that this police order has been issued with the malicious intent of targeting migrant labour from North Indian states who are as Indian as any other and who are fully entitled to the constitutional protection of their fundamental rights under Indian law. It is also true that single women and married female tenants who work and reside in the city will be forced to give private details about their work, address, family members and phone numbers under this order, which may be misused for sexual harassment, violation of their right to privacy, black mail and crime against women by corrupt elements amongst the police and governmental authority.

Thus from any way one looks at it, this afore-mentioned order of the Chennai Police Commissioner forcing the land lords and tenants in the Greater Chennai City to hand over personal details about their tenants to the police is a gross violation of the constitution, and is also in violation of the right to privacy enshrined in various supreme court judgments, and hence this police order should be deemed to be in derogation of the fundamental rights enshrined in our constitution and hence this police order should be declared null and void under article 13 of the constitution.

The authors of this essay managed to obtain an injunction in the Chennai High Court against this draconian and totalitarian order by the Chennai Police Commissioner, while the final judgment on the matter is still pending before the courts.

(The authors of this article are human rights advocates residing in Chennai. Advocate S.Sathiachandran is an activist and lawyer based in Chennai who can be reached at [email protected]. Dr.Iniyan Elango is a physician and writer based in Chennai who can be reached at [email protected]. Dr.Iniyan Elango also blogs at www.hinducasteracism.blogspot.com).

 

 




 

 


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