The curious case of Section 41

Activists question the non-stop re-promulgation of the provision of Chennai City Police Act to curb protests for over a century
Illustration: Soumyadip Sinha
Illustration: Soumyadip Sinha

CHENNAI:  Ten days ago, the city police commissioner promulgated Section 41 of the Chennai City Police Act, 1888, for 15 days. Till 3 pm on April 30, the law allows the police to regulate any forms of protest within the Greater Chennai Police limits. So what is special about this provision? A police officer said that the police department has been promulgating this provision, which has a 15-day validity, for at least a century, and re-promulgating it after the earlier one expires!

There has never been a period when this provision has not been in force! While the police say that the law helps them maintain public order and peace, activists and civil society members have accused the department of blatantly regularising a temporary provision without seeking the government’s sanction. Responding to the allegation, a senior police officer told Express that “this is not a subject which relates to the government”. “Every fortnight, depending on the situation, this has been invoked,” he said, emphasising the right to protest, but with permission.

The only person to have challenged this pre-Constitution provision in court was DMK founder CN Annadurai, when he, along with 10 others, were charged with marching towards Triplicane beach on January 3, 1958, to hold a public rally, defying Section 41. The DMK had called for a black flag rally against the then Prime Minister Jawaharlal Nehru on the eve of his visit. The then Congress government, headed by K Kamaraj, defended the ban, saying that the commissioner took the decision not only to avoid DMK’s protests, but also to avert anti-socials from taking over the agenda of other protests spearheaded by parties like Dravidar Kazhagam and TN Socialist Party.

So when the provision continues to be enforced even today, it has riled activists. Mamidipudi Swaroop, a lawyer who was one of the organisers of anti-CAA protests last year, said, “The back-to-back promulgation of the provision has given powers to the government to allow only certain kinds of protests.” “Ordinarily, you do not need permission for processions, assemblies, etc. But if there is a ban in force (only for 15 days) under Section 41(2), invoked only in case of a threat to public safety, permission has to be taken from the commissioner.

To extend the 15-day ban, they need permission from the State government. Instead, what the police do is to let it expire and bring in a new order to surpass the process of seeking permission,” he said. Another political activist said, “If the issue is sensitive, getting permission is a tedious job.” The Madras High Court, in the 2001 Nedumaran Vs State of Tamil Nadu judgment, had observed that the power conferred on the commissioner under Section 41 is sweeping and is meant to be exercised with caution. “The powers were conferred on the authorities during the colonial regime when suppression of dissent was considered to be a legitimate policy of the State.

Justice K Chandru, who had fought against the provision for more than 50 years and had been jailed for defying it during his activism days, said that it is used to play 'hide and seek games'.

"It is used disproportionately. Action isn't taken against any meetings conducted by a party in power. It is the opposition parties that face the heat," said Chandru, who had delivered more than 25 judgements, including a division-bench order pertaining to the section.

It cannot be exercised after the enactment of the Constitution in the same manner,” the court had said. Referring to an Intelligence report placed before it, the court had said that the “police still does not seem to recognise that the country is democratic.” Jayaram Venkatesan, convenor of the Arappor Iyakkam, alleged that the police had imposed restrictions even for the conduct of public awareness events meetings in private spaces. Section 34 of the same legislation mandates a licence from the commissioner for using an enclosed place or a building (with specific dimensions) for public entertainment or a resort. “Police forces had interrupted and demanded the licence from an owner that offered space (smaller hall and not resort) for us in 2019.” According to RTI replies from eight police district chiefs, either only elite hotels possessed the license or many districts did not have any establishments that had the licence.

◆ Section 41 (1) of the Act empowers police officers above the rank of head constable to direct (regulate) conduct of the events and allows the officer to licence and regulate or prohibit the use of music or sound amplifiers in public places. It does not talk about getting permission
◆ Section 41 (2) empowers the commissioner to prohibit assembly, meeting, or procession if he considers such prohibition to be necessary for the preservation of public peace or safety. The provision also says that such a prohibitory order shall not remain in force (without the sanction of the State) for more than 15 days
◆ Section 41 (3) mandates permission (in case of restriction under second clause) from the commissioner, who may or may not grant it

Designated locations in Greater Chennai Police limits
Street Corner Meetings: 441 venues
Public Meetings: 310 venues
Demonstrations/Fast/Dharna: 28 venues
Procession: 6 venues

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