Institute of Legal and Management Studies

The Communist Party of India has approached the Supreme Court challenging the Madras High Court's direction for the removal of permanent flag poles of political parties from public places of Tamil Nadu.

A bench comprising Justice JK Maheshwari and Justice Vijay Bishnoi on Monday observed that petition be considered by a bench led by Justice Vikram Nath which had heard a connected petition earlier. Accordingly, the matter was adjourned.

The Special Leave Petition is filed against the order passed by a Full Bench of the High Court(Madurai Bench) comprising Justices SM Subramaniam, R Vijayakumar and S Sounthar on August 13, confirming the earlier directions passed by a single bench in January for the removal of flagpoles.

Today, the Supreme Court noted that in August, it had dismissed a petition filed by another litigant challenging the High Court Division Bench's order of March, which confirmed the single bench's order. The bench also noted that another bench led by Justice Vikram Nath has issued notice on another petition challenging the High Court's direction. In that view of the matter, the bench observed, "Therefore list this matter before the co-ordinate bench consisting of Justice Vikram Nath and if needed appropriate orders may be taken from the Chief Justice."

In March, a division bench of the Madurai Bench had affirmed the single bench's order. In Augsut, the Supreme Court dismissed an SLP filed against the division bench's order.

Meanwhile, in June, another appeal from the single bench's order happened to be listed before another division bench. This division bench expressed reservations about the earlier division bench's order, observing that there were earlier judgments holding that permission was not necessary to erect a flagpole. Accordingly, the matter was referred to a Full Bench.

In August, the Full Bench, taking note of the fact that the Supreme Court had already affirmed the division bench's order passed in March, disposed of the matter saying that no adjudication was necessary. The CPI has approached the Supreme Court against this order.

The CPI, in its SLP, contended that the Supreme Court's dismissal of the earlier SLP will not attract the doctrine of merger, as it was a dismissal at the threshold in limine, and hence, it was open to the High Court to decide the merits of the matter.

The party also contended that the High Court's sweeping directions amounted to "impermissible judicial legislation" and resulted in the violation of fundamental rights under Articles 19(1)(a) and 19(1)(c) of the Constitution. They also argued that the directions were passed without hearing the political parties.

The Single Bench of the Madras High Court ordered all political parties, communal and other organizations in the State to remove permanent flagpoles erected by them on public places including national highways, lands belonging to the government, etc.

Justice GK Ilanthiraiyan of the Madurai bench directed the concerned parties to comply within 12 weeks, failing which the authorities concerned were to take appropriate action after issuing notice to the parties. The Court added that the authorities could, in such a case, recover the cost of removal from the concerned parties.

The Court passed the orders on a plea filed by one Kathiravan challenging an order of the Assistant Divisional Engineer rejecting his request to erect a flag pole of the AIADMK party in Palanganatham, Madurai city.

While dismissing the application, the Court remarked that there was no law that permitted issuing licenses to install permanent flagpoles in public places. It added that the police and the revenue authorities did not have jurisdiction to issue a No-Objection certificate allowing the erection of flag poles in public places.

The Court also said that these flagpoles often caused inconvenience to the commuters and affected traffic in some cases. At the same time, it was clarified that there was no restriction on installing flag poles in private patta land by parties during political campaigns, dharnas, public meetings, etc. However, such installations should be subject to rules and must be removed after the meeting.

The Court added that after removing the flag poles, care should also be taken by the organizers to clean the area and return the place to its original condition. It further directed the State to formulate rules for installing flagpoles on private land.

The CPI's petition was filed through M/s Ram Sankar and co.

Case : Communist Party of India v. State of Tamil Nadu and others |