REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1153 OF 2017

MAZDOOR KISAN SHAKTI SANGATHAN .....PETITIONER(S)

VERSUS

THE UNION OF INDIA & ANR. .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 863 OF 2018

CIVIL APPEAL NO. 862 OF 2018

AND

CIVIL APPEAL NO. 864 OF 2018

J U D G M E N T

A.K. SIKRI, J.

Writ Petition (Civil) No. 1153 of 2017, which is filed as public

interest  litigation  under  Article  32  of  the  Constitution  of  India,

challenges the repeated imposition of police order under Section

144 of Code of Criminal Procedure (hereinafter referred to as the

“Cr.P.C.”),  whereby  ban  is  imposed  by  the  Assistant

Commissioner  of  Police,  Sub-Division,  Parliament  Street,  New

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 1 of 72

Delhi  District  prohibiting  the  following  activities  without  written

permission in the areas known as Parliament House, North and

South Block,  Central  Vista Lawns together with its surrounding

localities and areas:-

“i) The holding of any public meeting; ii) Assembly of five or more persons; iii) Carrying of fire-arms, banners, placards, lathis,  

spears, swords, sticks, brickbats etc. iv) Shouting of slogans; v) Making of speeches etc. vi) Processions and demonstrations; vii) Picketing or dharnas in any public place within the area specified in the Schedule and site plan appended to this order”

2) It is the grievance of the petitioner that though a particular order

passed under Section 144 of the Cr.P.C. remains in force for a

period of 60 days, simultaneously on the expiry of the said period

of 60 days another order of identical nature is passed thereby

banning the holding of public meetings, peaceful assembly and

peaceful demonstrations by the public at large.  This, according

to the petitioner, is the arbitrary exercise of power which infringes

the  fundamental  right  of  peaceful  assembly  guaranteed  under

Article 19(1)(b) of the Constitution of India.  It is stated that by

these orders virtually the entire Central Delhi  area is declared a

prohibited  area  for  holding  public  meetings  and  dharnas  or

peaceful  protests.   The  petitioner  has,  thus,  sought  a  writ  of

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 2 of 72

certiorari seeking quashing of these orders passed under Section

144 of the Cr.P.C. and has also prayed for issuance of writ  of

mandamus or any other direction laying down the guidelines for

holding public meetings, dharnas, etc. To be precise, the prayers

made in the writ petition are of the following  nature:

“In  view  of  the  above-mentioned  facts  it  is  respectfully submitted that this Hon’ble Court may be pleased to:

(a) Issue  a  writ  of  certiorari  or  any  other  direction  to quash  the  orders  dated  24.01.2017,  25.03.2017, 24.05.2017,  23.07.2017,  22.09.2017  and  31.10.2017  or any other  similar  orders  issued earlier  or  subsequent  to these  dates  by  the  Delhi  Police  vide  which  the  entire Central Delhi/New Delhi has been declared as a prohibited area;

(c) Declare  that  imposing  a  blanket  ban  on  all assemblies in Central Delhi/New Delhi area as illegal;

(d) Declare  that  repeated  promulgation  of  prohibitory orders under Section 144 of Code of Criminal Procedure as illegal; and

(f) Pass any other or further appropriate writs, orders, or directions as this Hon’ble Court may deem fit and proper in the interests of justice.”

CIVIL APPEAL NO. 862 OF 2018

3) Civil  Appeal  No.  862  of  2018,  on  the  other  hand,  has  laid

challenge  to  the  judgment  and  order  passed  by  the  National

Green Tribunal, Principal Bench, New Delhi (hereinafter referred

to as the “NGT”) in Original  Application No. 63 of  2016.  This

Original Application was filed by Respondent Nos. 1 to 7, who are

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 3 of 72

the  residents  of  Jantar  Mantar  Road.   In  the  said  Original

Application  they  had  stated  that  on  Jantar  Mantar  road,

particularly the stretch between the Ashoka road and Parliament

street,  there are residential  houses where people are living for

number of decades by now.  This stretch on Jantar Mantar road,

falling between the intersection on Ashoka Road and Parliament

street, has been earmarked as residential area even under the

Master Plat, 2021.  the said road, houses not only residences of

members of  Parliament but  also State Guest house of  Kerala,

office of Delhi Metro Corporation and offices of political parties.

The grievances were that Jantar Mantar has become a ground for

organizing protest by various categories of groups, political and

non-political.  Such protests are not temporary or transient.  The

protestors  have  rather  put  up  tents  and  other  arrangements

where people have been staying for many months. Some of the

structures have been on the site for past several years.  It was

also averred that  the manner  in which the demonstrations are

held and the area occupied by the protesters are causing noise

pollution and air  pollution,  thereby causing insurmountable and

untold miseries to the residents and causing adverse health effect

on the residents and their children.

4) The  prayer  made  in  the  Original  Application  was  to  pass Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 4 of 72

appropriate orders directing the Police Commissioner and other

government  authorities  (who were  arrayed  as  respondents)  to

disallow the protestors of Jantar Mantar Road stretch between

Ashoka Road and Parliament Street  or prevent them from using

loudspeaker  or  public  announcement  system.   The  NGT after

hearing  the  matter  has  rendered  its  judgment  on  5 th October,

2017, allowing the Original Application of Respondent Nos. 1 to 7

with the issuance of following directions:

“I. The  respondent  Government  of  Delhi,  New  Delhi Municipal Corporation and Police Commissioner, Delhi to immediately  stop  all  the  activities  of  dharna,  protest, agitations, assembling of people, public speeches, using of loud speakers, etc. at Jantar Mantar Road.

II. NDMC  is  directed  to  remove  all  make shifts/temporary  structures,  loud  speakers  and  public address  system  from  the  said  stretch  of  Jantar  Mantar road.

III. NDMC is also directed to remove the garbage/waste lying on the stretch of Jantar Mantar Road and clear the entire area.

IV. The respondent  shall  shift  the protestors,  agitators and the people holding dharnas to the alternative site at Ram Leela Maidan, Ajmeri Gate, forthwith.

V. The  respondents  are  directed  to  comply  with  this order within four weeks from the date of pronouncement of the judgment.

VI. The Chairman, New Delhi Municipal Corporation, the Police  Commissioner,  Delhi  and  Government  of  NCT of Delhi shall file their respective compliance report before the Tribunal within five weeks from the date of the judgment.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 5 of 72

When such reports are received, the registry is directed to register  the same and place before the Tribunal.   There shall be no order as to cost.”

5) Civil Appeal No. 862 of 2018 has questioned the validity of the

said order on the ground that these directions violate fundamental

right  of  the  appellants  enshrined  in  Article  19(1)(b)  of  the

Constitution to hold peaceful  demonstrations as the appellants

are fighting for the welfare and interest of the farmers and holding

dharnas  at  Jantar  Mantar  for  redressal  of  the  legitimate

grievances of these farmers.

CIVIL APPEAL NO. 863 OF 2018

6) Likewise, the appellant in Civil Appeal No. 863 of 2018, aggrieved

by the same order of NGT, states that she is the sufferer for many

years for  the grave offence of  rape by a police officer  on 16 th

June, 2010 and to attract attention of the concerned persons for

redressal for her grievance she has been continuously sitting on

dharna at Jantar Mantar and with the ban of such dharna by the

NGT, her valuable fundamental right is affected.

CIVIL APPEAL NO. 864 OF 2018

7) Civil Appeal No. 864 of 2018 is filed by Indian Ex-Serviceman

Movement. This organisation, which is fighting for the rights of

the  ex-servicemen,  had  been  holding  dharnas,  assembly,

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 6 of 72

speeches,  etc.  at  Jantar  Mantar,  is  precluded  from raising  its

voice because of the order passed by the NGT imposing ban on

such types of assemblies.

8) The aforesaid introduction in these two cases clearly reveals the

commonality  of  the issues and legal  precepts  on the basis  of

which the subject matter of all the cases is to be decided.  For

this reason, all  the four cases were clubbed together ad heard

simultaneously.

FACTS : W.P. (CIVIL) NO. 1153 OF 2017 :-

9) This  PIL is  filed  by  the  Mazdoor  Kisan  Shakti  Sangathan (for

short,  “MKSS”).   It  is  claimed  that  MKSS  is  a  grassroot,

unregistered  people’s  organisation  formed  in  1990  with  its

headquarters in Devdungri, Rajasthan with bank account number

51041231248 in State Bank of  Bikaner  and Jaipur,  Bhim.  The

MKSS was a crucial part of the movement that led to the passage

of the Right to Information Act in 2005.  The platform of village

based public hearings or “Jan Sunwais” pioneered by the MKSS

in  the  mid-1990s  became institutionalized  in  processes  of  the

government and is also used as a means of public audit across

the country.  The MKSS has also been a strong supporter and an

integral  part  of  the  movement  demanding  the  Right  to  Work,

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 7 of 72

which played an important role in ensuring the passage of the

National Rural Employment Guarantee Act (NREGA) in 2005 in

India.   The MKSS operates through community  support  for  its

activities and honorarium for its volunteers.  Full time volunteers

receive  minimum  wages  as  their  honorarium.   This  comes

through  non-tax  deductible  donations  from individuals  that  the

MKSS receives.

10) It  is  pointed out  in  the petition that  the Delhi  Police has been

issuing such prohibitory orders under Section 144 of the Cr.P.C.

for several years.  It issues fresh orders as soon as the previous

order expires.  As per sub-section (4) of Section 144 Cr.P.C., an

order  can  be  issued  for  a  maximum  period  of  two  months,

therefore, the Delhi Police has adopted the tactic of issuing the

same order repeatedly as a result of which for the last several

years, the entire Central Delhi area is a prohibited area for the

purposes of holding dharnas, peaceful demonstrations, etc.

11) The  petitioner  has  annexed  these  orders  dated  24th January,

2017,  25th March,  2017,  24th May,  2017,  23rd July,  2017,  22nd

September, 2017 and 31st October, 2017 as Annexures P-1 to P-6

respectively.  All the orders are identically worded.  For the sake

of clarity, it would be apposite to reproduce text of one such order

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 8 of 72

dated 25th March, 2017, which is as under:

“                                     O R D E R

1. Whereas  the  areas  known  as  Parliament  House, North & South Block, Central Vista lawns together with its surrounding  localities  and  areas,  are  busy  places frequented by heavy vehicular and pedestrian traffic.

2. And whereas reports have been received indicating that such conditions now exist that unrestricted holding of public  meetings,  processions/demonstrations  etc.  in  the area are  likely  to  cause  obstruction  to  traffic,  danger  to human safety and disturbance of public tranquility.

3. And  whereas  it  is  necessary  to  take  speedy measures in this behalf to prevent danger to human life or safety and disturbance of public tranquility.

4. Now, therefore, in exercise of the powers conferred upon me by the virtue of Section 144 Cr.P.C., 1973 (No. 2 of 1974) read with Govt. of India, Ministry of Home Affairs, New  Delhi’s  Notification  No.  U-11036/(i)  UTL  dated 9.9.2010, I, Ved Bhushan, Asstt. Commissioner of Police of Sub-Division  Parliament  Street  of  New  Delhi  District  do hereby make this written order prohibiting:

“i) The holding of any public meeting; ii) Assembly of five or more persons; iii) Carrying  of  fire-arms,  banners,  placards,  lathis, spears, swords, sticks, brickbats etc. iv) Shouting of slogans; v) Making  of  speeches  etc. vi) Processions and demonstrations; vii) Picketing or dharnas in any public place within the area  specified  in  the  Schedule  and  site  plan appended to this order;

5.  The specific area covered by this prohibitory order, will be  the  area  and  building  surrounded  by  Sansad Marg/opposite  Registrar  of  Co-operative  Societies,  Old Court  Building,  towards  Sansad  Marg/Ashoka  Road crossing,  Ashoka Road,  Windsor  Place (inclusive Road), Ashoka  Road  upto  Man  Singh  Road/Ashoka  Road  R/A, T/R Man Singh Road (exclusive) upto Rajpath, then T/R on Rajpath (inclusive) upto Vijay Chowk , then T/L upto South Fountain, T/R Dalhousie Road upto R/A Dalhousie Road/

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 9 of 72

Rajaji  Marg/Dalhousie  Road  (exclusive  R/A),  T/R  South Block, Rajpath, North Block, Central Sectt., Church Road upto  Gate  No.  35  of  Rashtrapati  Bhawan  including  MP Flats, North Avenue upto R/A RML (exclusive), Baba Khark Singh Marg upto Gole Dakkhana (exclusive) T/R Ashoka Road T/L Jai Singh Road, excluding Sansad Marg/Tolstoy Marg  crossing,  Sansad  Marg  upto  Registrar  of  Co- operative Societies, Old Court Building and Jantar Mantar Road/Tolstoy Marg Crossing, Jantar Mantar Road upto R/A Jantar Mantar Road and Ashoka Road.  A details map of this area is enclosed as Annexure to this order.

6. This  order  shall  come  into  force  with  effect  from 26.03.2017 and shall  remain in  force for  a  period of  60 days,  i.e.,  up to 24.05.2017 (both days inclusive)  unless withdrawn earlier.

7. Any  person  contravening  this  order  shall  be punishable under Section 188 of Indian Penal Code.

8. As  the  notice  cannot  be  served  individually  on  all concerned, the order is hereby passed ‘Ex-Parte’.  It shall be published for  the information of  public  through Press and by affixing copies on the notice boards of the offices of all District Addl. CsP/DcsP/Addl. DcsP, AcsP, Tehsil Offices, all Police Stations concerned and the offices of the NDMs and MCD.

(Ved Bhushan) Asst. Commissioner of Police,

Sub-Division Parliament Street New Delhi District”

12) It is averted that Delhi is the national capital, the centre of power

and hence aggrieved citizens from all over the country throng the

city to get their voices heard.  Mass protests have been prevalent

in Delhi since colonial times in the form of hartals, satyagraha

against the British rule and later Emergency era protests, kisan

agitations,  Mandal  Commission  protests,  the  Jan  Lokpal

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 10 of 72

aandolan and the December 2012 gang-rape protests, to name a

few.   Upto  the  1980s  citizens  of  this  country  had unrestricted

rights to hold dharnas, protests and agitations in the Boat Club

lawns  near  India  Gate  along  the  Rajpath  road.   After  the

Mahendra  Singh  Tikait  agitation,  protests  at  Boat  Club  lawns

were  restricted.   In  fact  the  unrestricted  right  to  protest  was

severely curtailed and the entire Central Delhi, which is close to

the establishment offices, has been turned into a fortress and the

fundamental rights of the citizens are completely denied thereby.

However from 1993 till recently, the only place where the protests

were allowed was Jantar Mantar.

13) When attempts were made to restrict protest at Jantar Mantar,

the Delhi  Police’s  repeated orders  banning protests  in  Central

Delhi were challenged by a Bhopal Gas Pidit Mahaila  Stationary

Karamchari Sangh member in 2010 before the Delhi High Court,

who had come along with other activists to Delhi to raise a protest

because of the failure of the Government of India to set up an

empowered commission to look into the problems of the victims

of toxic gases leak from the plant of the Union Carbide in 1984

but the same protests were being rendered unfruitful because of

the orders of the Delhi Police continuously imposing restrictions

on the right to protest in Central Delhi.  The High Court on 31st

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 11 of 72

May, 2011, disposed of the petition when the Delhi Police filed an

affidavit stating that the continuous prohibition under Section 144

of  the  Cr.P.C.  under  the  jurisdiction  of  the  New  Delhi  District

declaring certain areas as prohibited area for holding any public

meeting,  dharna,  peaceful  protest,  etc.  has been discontinued.

Despite this, the practice of repeated  imposition of orders under

Section  144  continues,  severely  restricting  the  citizens’

fundamental right to protest and peaceful assembly.

14) The  petitioner  also  states  that  the  Delhi  Police  has  even

advertised  for  protesters  to  use  Jantar  Mantar  as  the  site  of

protest.   However,  on 5th October,  2017, the NGT has entirely

banned protests at Jantar Mantar on the grounds that it creates a

nuisance for the residents of the area and violates environment

protection statutes.   This order is, however, in complete violation

of a citizen’s fundamental right to peaceful assembly.  With the

NGT order banning protests at Jantar Mantar, it is evident that

distancing  a  protest  site  from  where  it  is  most  visible  to  the

government  and  concerned  authorities,  will  have  the  effect  of

diluting the impact that the protest seeks to gain.  Jantar Mantar

has been the site for peaceful protests since 1993 and by the

nature  of  the  stretch  of  road,  it  is  an  easily  managed  and

contained space.  It gave poor protesters a chance to get food Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 12 of 72

from the gurudwara nearby and gave them a sense of greater

visibility, considering the proximity of the venue to the Parliament.

With the shifting of the protest site to Ramlila Maidan, there is a

fear that  this  will  further distance protesters from a site where

they  had  greater  visibility  and  is  hence  an  unreasonable

restriction  on  the  freedom  to  protest  and  right  to  peaceful

assembly.  Besides the cost of using Ramlila Maidan for protests

is Rs. 50,000/-  per day which would make protests at  the site

practically impossible for the common citizen.

15) Mr. Prashant Bhushan, learned counsel arguing in support of the

prayers  made  in  this  petition,  referred  to  certain  relevant

provisions of the Cr.P.C. including Section 144 thereof and also

that of Delhi Police Act, 1978.  He submitted that holding peaceful

demonstration by people in order to air  grievances and to see

that their voice is heard in the relevant quarters, is the right of the

people. Such a right can be traced to the fundamental system

guaranteed  under  Articles  19(1)(a)  and  19(1)(b)  of  the

Constitution.   Article  19(1)(b)  specifically  confers  a  right  to

assembly  and,  thus,  guarantees  that  all  citizens  have  right  to

assemble peacefully  and  without  arms.   He submitted  that  by

various pronouncements, this Court as well as High Courts have

upheld this fundamental right of the citizens, i.e., right to protest Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 13 of 72

and assemble peacefully without arms is a distinguishing feature

of any democracy and it is this feature that provides space for

legitimate  dissent.   It  encompasses  the  right  to  express

grievances through direct action or peaceful protest. Organized

non-violent protest marches were a key weapon in the struggle

for  independence  and  the  right  to  peaceful  protest  is  now

recognised  as  a  fundamental  right  in  the  Constitution.   He

accepted that  while  on the one hand,  citizens are  guaranteed

fundamental  right  of  speech and the right  to  assemble for  the

purpose of  carrying peaceful  protest/processions,  on the other

hand,  reasonable restrictions on such rights can be placed by

law.  Provisions of the Indian Penal code (for short, ‘IPC’) and

Cr.P.C. are in the nature of such reasonable restrictions, which

are statutory provisions giving powers to the State to ensure that

such  public  assemblies,  protests,  dharnas  or  marches  are

peaceful  and  they  do  not  become  unlawful.   However,  his

submission was that while exercising such powers the authorities

are supposed to act within the limits of law and cannot indulge in

excesses in what can be seen as another bid to stifle and impose

unreasonable restrictions on the right to peaceful assembly.

16) The submission of Mr. Prashant Bhushan was that having regard

to the aforesaid constitutional position, provision of Section 144 of

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 14 of 72

the Cr.P.C. could be used only in emergent situation when there

is sufficient ground for proceeding under that Section and there is

need for immediate prevention or speedy remedy is desirable.  In

this behalf, he drew sustenance from the order dated 31st May,

2011 of Delhi High Court in the case of  Bano Bee v. Union of

India  and  Anr.1 wherein  similar  type  of  blanket  ban  on  all

assemblies in Central Delhi/New Delhi by repeated promulgation

of  prohibitory  order  under  Section  144  of  the  Cr.P.C.  was

deprecated.  He referred to the following discussion in the said

judgment:

“5. Ordinarily we would have dealt with the law laid down in Himmat  Lal  K.  Shah Case (supra)  and another  decision rendered in  Babulal  Parate v.  The State  of  Maharashtra and Ors. (AIR 1961 SC 884) by the Constitution Bench, but we  have  come  across  a  decision  in  Acharya Jagdishwaranand  Avadhuta  v.  Commissioner  of  Police, Calcutta  and another,  (AIR 1984 SC 51)  wherein  it  has been held as follows:

“The  other  aspect,  viz.,  the  propriety  of  repetitive prohibitory orders is, however, to our mind a serious matter  and  since  long  arguments  have  been advanced, we propose to deal with it. In this case as a fact from October 1979 till  1982 at the interval of almost two months orders under Section 144(1) of the Code have been made from time to  time.  It  is  not disputed  before  us  that  the  power  conferred  under this section is intended for immediate prevention of breach of peace or speedy remedy. An order made under this section is to remain valid for two months from the date of its making as provided in sub-section (4)  of  Section  144.  The  proviso  to  sub-section  (4) authorises the State Government in case it considers it necessary so to do for preventing danger to human

1 Writ Petition (Civil) No. 5000 of 2010 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 15 of 72

life, health or safety, or for preventing a riot  or any affray, to direct by notification that an order made by a Magistrate may remain in force for  a further period not exceeding six months from the date on which the order  made  by  the  Magistrate  would  have,  but  for such  order,  expired.  The  effect  of  the  proviso, therefore,  is  that  the  State  Government  would  be entitled  to  give  the  prohibitory  order  an  additional term of life  but  that would be limited to six months beyond  the  two  months’  period  in  terms  of  sub- section  (4)  of  Section  144  of  the  Code.  Several decisions of different High Courts have rightly taken the  view  that  it  is  not  legitimate  to  go  on  making successive orders after earlier orders have lapsed by efflux of  time. A Full  Bench consisting of  the entire Court  of  12  Judges  in  Gopi  Mohun  Mullick  v. Taramoni  Chowdhrani  examining  the  provisions  of Section 518 of the Code of 1861 (corresponding to present  Section  144)  took  the  view  that  such  an action was beyond the Magistrate’s powers. Making of successive orders was disapproved by the Division Bench  of  the  Calcutta  High  Court  in  Bishessur Chuckerbutty v. Emperor.  Similar view was taken in Swaminatha  Mudaliar  v.  Gopalakrishna  Naidu, Taturam Sahu v. State of Orissa, Ram Das Gaur v. City  Magistrate,  Varanasi,  and  Ram Narain  Sah  v. Parmeshar Prasad Sah. We have no doubt that the ratio  of  these  decisions  represents  a  correct statement of  the legal position. The proviso to sub- section  (4)  of  Section  144  which  gives  the  State Government  jurisdiction  to  extend  the  prohibitory order for a maximum period of six months beyond the life  of  the  order  made  by  the  Magistrate  is  clearly indicative  of  the  position  that  Parliament  never intended the life of an order under Section 144 of the Code to  remain  in  force beyond two months  when made by a Magistrate.  The scheme of  that  section does not  contemplate repetitive orders and in case the  situation  so  warrants  steps  have  to  be  taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are  provisions  to  be  found  in  the  Police  Act.  If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code. It is relevant to advert to the decision of this Court  in  Babulal  Parate  v.  State  of  Maharashtra

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 16 of 72

where  the  vires  of  Section  144  of  the  Code  was challenged.  Upholding  the  provision,  this  Court observed:

“Public  order  has  to  be  maintained  in  advance  in order to ensure it and, therefore, it is competent to a legislature  to  pass  a  law  permitting  an  appropriate authority  to  take  anticipatory  action  or  place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order....”

It was again emphasized (at p.891 of AIR):

“But  it  is  difficult  to  say  that  an  anticipatory  action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order....”

This  Court  had,  therefore,  appropriately  stressed upon the feature that the provision of Section 144 of the Code was intended to meet an emergency. This postulates  a  situation  temporary  in  character  and, therefore, the duration of an order under Section 144 of the Code could never have been intended to be semi-permanent in character.”

17) The aforesaid writ petition was disposed of after taking note of

the fact that continuous prohibition under Section 144 of Cr.P.C.

under  jurisdiction of  New Delhi  District  had  been discontinued

and a statement  was also  made by the respondents  that  this

provision would not be invoked as and when unwarranted except

in emergent situation.  Contrary to the aforesaid stand taken by

the respondents in  the said case,  submitted Mr.  Bhushan,  the

respondents  had  started  adopting  the  same  tactics  of  issuing

repeated  orders  under  Section  144,  Cr.P.C.   This  practice, Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 17 of 72

according to the learned counsel, was anathema in a democratic

set up where people have been guaranteed freedom of speech

and  freedom  of  assembly  to  vent  out  their  grievance.   He

submitted that  it  was a  valuable  right  which was given to  the

citizenry  to  let  off  their  esteem  and  if  that  right  of  peaceful

demonstration is not allowed, it may take a violent turn.

18) Mr.  Bhushan,  learned  counsel,  referred  to  various  judgments

where such a right is recognised as fundamental right.

19) He  also  referred  to  certain  other  judgments2 to  buttress  his

submission  that  the  powers  under  Section  144  of  Cr.P.C.  are

intended to be used for  preventing disorders,  obstructions and

annoyances.  

20) Mr. Bhushan went to the extent of citing international standards,

conventions  and  judgments  of  foreign  courts  on  the  right  to

peaceful  assembly  and the right  to  protest.   In  support  of  his

submission that such a right had been recognised world over in

all democratic countries governed by rule of law, he referred to

international  conventions  like  Universal  Declaration  of  Human

Rights,  International  Covenant  on Civil  and Political  Right  and

2 (1970) 3 SCC 746, 1961 (3) SCR 423, (2012) 5 SCC 1, (1978) 1 SCC 226, (1973) 1 SCC 227, (1983) 4 SCC 522

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 18 of 72

Convention on the Rights of the Child.  He also relied upon the

Guidelines  on  Freedom  of  Peaceful  Assembly,  issued  by

Organisation for Security and Co-operation in  Europe (OSCE)

and Council of Europe’s Commission for Democracy through Law

(Venice Commission).   In addition,  Mr.  Prashant Bhushan also

referred to literature contained in United Nations Human Rights

Council Special Rapporteur Reports on the rights to freedom of

peaceful assembly and of association.  Some of the judgments3

rendered by U.S. Supreme Court and U.K. Courts were also cited

by Mr. Prashant Bhushan.  

21) While concluding his submissions, Mr. Bhushan argued that the

Boat Club area in New Delhi/Central Delhi had also been treated

as  most  suitable  place  for  holding  peaceful  demonstrations.

According  to  him,  it  was  no  solution  earmarking  the  area  for

demonstration  in  Ramlila  Maidan.   It  was  not  a  suitable

alternative and no solution inasmuch as it was far away from the

Central  Delhi  where  offices  of  the  Central  Government  were

located.   The very purpose of  demonstration is  to  ensure that

voice of demonstrators is heard by the decision makers so that it

has adequate impact. If the demonstrators like the petitioners are

3 De Jonge v. State of Oregon; [(1973) US Supreme Court], Shuttlesworth v. City of Birmingham; [(1969) U.S. Supreme Court], Thomas v. Collins; [(1945) US Supreme Court] and Laporte, R. (on the application of) v. Chief Constable of Gloucesershire; [2006] UKHL 55

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 19 of 72

driven to far away place  in Ramlila Maidan in Old Delhi, the very

purpose  of  peaceful  demonstration  would  be  rendered

meaningless which would clearly amount to violating rights of the

petitioner under Articles 19(1)(a) and 19(1)(b) of the Constitution.

In this way, argued the learned counsel, the respondents were

treating their citizens as their servants.  He also submitted that

the  impugned  orders  were  based  on  the  assumption  that

whenever there is a demonstration or dharna in New Delhi area,

it would lead to violence which was an uncalled for assumption.

His plea was that if any particular group has such antecedents of

becoming  violent,  such  group  can  always  be  prevented  from

holding  demonstrations.   For  this  purpose  respondents  can

always  have  vigilance  inputs.  However,  there  is  no  reason or

rationale  in  putting  a  general  and  complete  ban  on  peaceful

demonstrations.

22) M/s.  Tushar  Mehta  and  A.N.S.  Nadkarni,  learned  Additional

Solicitor  Generals,  made  a  strong  refutation  to  the  aforesaid

arguments of the petitioner.  Laying much stress on the sensitive

character of the area in question, to justify the issuance of orders

passed under Section 144 of the Cr.P.C., they made a fervent

plea to uphold these orders. Referring to certain passages from

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 20 of 72

Babulal Parate2, it was submitted that ‘clear and present danger’

test  which  was  applied  by  US Courts  in  such  cases  was  not

applicable in the Indian context and the correct test as applied by

this  Court  was that  of  ‘apprehension of  breach of  peace’ test.

Specific reliance was placed on the following paragraphs from

Babulal Parate2 .    

“14.  Looking at the section as a whole it  would be clear that, broadly speaking, it  is intended to be availed of for preventing disorders, obstructions and annoyances and is intended  to  secure  the  public  weal.  The  powers  are exercisable  by  responsible  Magistrates  and  these Magistrates have to act judicially. Moreover, the restraints permissible under the provision are of a temporary nature and can only be imposed in an emergency.

xxx xxx xxx

19. It is contended that Section 144 of the Code of Criminal Procedure  confers  very  wide  powers  upon  certain Magistrates  and  that  in  exercise  of  those  powers  the Magistrates  can  place  very  severe  restrictions  upon  the rights of citizens to freedom of speech and expression and to assemble peaceably and without arms.

20.  It seems to us, however, that wide though the power appears to be, it can be exercised only in an emergency and for the purpose of preventing obstruction, annoyance or  injury  to  any  person  lawfully  employed,  or  danger  to human life, health or safety, or a disturbance of the public tranquility or a riot, or “an affray”. These factors condition the exercise of  the power  and it  would  consequently  be wrong  to  regard  that  power  as  being  unlimited  or untrammelled. Further, it should be borne in mind that no one has a right to cause “obstruction, annoyance or injury etc”.  to  anyone.  Since  the  judgment  has  to  be  of  a Magistrate as to whether in the particular circumstances of a case an order, in exercise of these powers, should be made or not, we are entitled to assume that the powers will be exercised legitimately and honestly. The section cannot

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be  struck  down on  the  ground  that  the  Magistrate  may possibly abuse his powers.

21. It is also true that initially it is the Magistrate concerned who has to form an opinion as to the necessity of making an order. The question, therefore, is whether the conferral of such a wide power amounts to an infringement of the rights  guaranteed  under  Article  19(1)(a)  and  (b)  of  the Constitution. The rights guaranteed by sub-clause (a) are not absolute rights but are subject to limitations specified in clause (2) of Article 19 which runs thus:

“Nothing in sub-clause (a)  of  clause (1)  shall  affect the operation of any existing law, or prevent the State from making any law,  insofar  as such law imposes reasonable  restrictions  on  the  exercise  of  the  right conferred by the said sub-clause in the interests of security  of  the  State,  friendly  relations  with  foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Similarly  the  rights  to  which  sub-clause  (b)  relates  are subject to the limitations to be found in clause (3) of Article 19 which runs thus:

“Nothing  in  sub-clause  (b)  of  the  said  clause  shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.”

“The Code of Criminal Procedure was an existing law at the commencement of the Constitution and so, in the  context  of  the  grounds  on  which  its  validity  is challenged before us, what we have to ascertain is whether  the  conferral  thereunder  of  a  power  on  a Magistrate to place restrictions on the rights to which sub-clauses  (a)  and  (b)  of  Article  19  relate  is reasonable.  It  must  be  borne  in  mind  that  the provisions  of  Section  144  are  attracted  only  in  an emergency.  Thereunder,  the  initial  Judge  of  the emergency is, no doubt, the District Magistrate or the Chief  Presidency  Magistrate  or  the  Sub-Divisional Magistrate  or  any  other  Magistrate  specially empowered by the State Government. But then, the maintenance  of  law  and  order  being  the  duty  and function of the executive department of the State it is

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 22 of 72

inevitable that the question of formation of the opinion as  to  whether  there  is  an  emergency  or  not  must necessarily  rest,  in  the  first  instance,  with  those persons  through  whom  the  executive  exercises  its functions  and  discharges  its  duties.  It  would  be impracticable  and  even  impossible  to  expect  the State Government itself to exercise those duties and functions in each and every case. The provisions of the section therefore which commit the power in this regard to a Magistrate belonging to any of the classes referred  to  therein  cannot  be  regarded  as unreasonable.  We  may  also  point  out  that  the satisfaction of  the Magistrate as to the necessity of promulgating an order under Section 144 of the Code of Criminal Procedure is not made entirely subjective by the section. We may also mention that though in an appropriate  case a Magistrate  is  empowered to make an order under  this  section ex parte  the law requires  that  he  should,  where  possible  serve  a notice on the person or  persons against  whom the order is directed before passing that order. Then sub- section (4) provides that any Magistrate may either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section.  This  clearly  shows that  even where  an  ex parte order is made the person or persons affected thereby  have  a  right  to  challenge  the  order  of  the Magistrate. Sub-section (5) provides that where such a  challenge  is  made,  the  Magistrate  shall  give  an early  opportunity  to  the  person  concerned  of appearing before him and showing cause against the order.  The  decision  of  the  Magistrate  in  such  a proceeding  would  undoubtedly  be  a  judicial  one inasmuch as it will have been arrived at after hearing the party affected by the order. Since the proceeding before the Magistrate would be a judicial one, he will have to set aside the order unless he comes to the conclusion that the grounds on which it rests are in law sufficient to warrant it. Further, since the propriety of the order is open to challenge it cannot be said that by reason of the wide amplitude of the power which Section 144 confers on certain Magistrates it places unreasonable  restrictions  on  certain  fundamental rights.

23. The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 23 of 72

doctrine adumbrated in Scheneck case [Scheneck v. U.S., 249,  US  47]  that  previous  restraints  on  the  exercise  of fundamental rights are permissible only if there be a clear and  present  danger.  It  seems  to  us,  however,  that  the American  doctrine  cannot  be  imported  under  our Constitution  because  the  fundamental  rights  guaranteed under  Article  19(1)  of  the  Constitution  are  not  absolute rights  but,  as  pointed  out  in State  of  Madras v. V.G. Row [1952 SCR 597] are subject to the restrictions placed in the subsequent clauses of Article 19. There is nothing in the American Constitution corresponding to clauses (2) to (6)  of  Article  19  of  our  Constitution.  The  Fourteenth Amendment to the U.S. Constitution provides, among other things, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall  any State deprive any person of life, liberty, or property, without due process of law; ….”.

24. The framework of our Constitution is different from that of the Constitution of the United States.  Then again, the Supreme  Court  of  the  United  States  has  held  that  the privileges and immunities conferred by the Constitution are subject to social control by resort to the doctrine of police power. It is in the light of this background that the test laid down  in Scheneck  case [Scheneck v. U.S.,  249,  US  47] has to be understood.

25. The  language  of  Section  144  is  somewhat  different. The test laid down in the section is not merely “likelihood” or “tendency”. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power  conferred  by  the  section  is  exercisable  not  only where present danger exists but is exercisable also when there is an apprehension of danger.

26. Apart  from this  it  is  worthy  of  note that  in Scheneck case [Scheneck v. U.S.,  249,  US 47]  the  Supreme Court was concerned with the right of freedom of speech and it observed:

“It  well  may  be  that  the  prohibition  of  law abridging  the freedom of speech is not confined to previous restraints, although  to  prevent  them  may  have  been  the  main purpose…. We admit that in many places and in ordinary times  the  defendants,  in  saying  all  that  was said  in  the circular, would have been within their constitutional rights.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 24 of 72

But  the  character  of  every  act  depends  upon  the circumstances  in  which  it  is  done.… The most  stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even  protect  a  man  from  an  injunction  against  uttering words that may have all the effect of force…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and  present  danger  that  they  will  bring  about  the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

27. Whatever may be the position in the United States it seems  to  us  clear  that  anticipatory  action  of  the  kind permissible under Section 144 is not impermissible under clauses (2)  and (3)  of  Article  19.  Both in  clause (2)  (as amended in 1951) and in clause (3), power is given to the legislature to make laws placing reasonable restrictions on the exercise of the rights conferred by these clauses in the interest, among other things, of public order. Public order has to be maintained in advance in order to ensure it and, therefore,  it  is  competent  to  a  legislature  to  pass  a  law permitting  an  appropriate  authority  to  take  anticipatory action  or  place  anticipatory  restrictions  upon  particular kinds  of  acts  in  an  emergency  for  the  purpose  of maintaining  public  order.  We  must,  therefore,  reject  the contention.

28. It is no doubt true that since the duty to maintain law and order is cast upon the Magistrate, he must perform that duty and not shirk it by prohibiting or restricting the normal activities  of  the  citizen.  But  it  is  difficult  to  say  that  an anticipatory  action  taken  by  such  an  authority  in  an emergency  where  danger  to  public  order  is  genuinely apprehended is anything other than an action done in the discharge  of  the  duty  to  maintain  order.  In  such circumstances that could be the only mode of discharging the duty. We, therefore, reject the contention that Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order.

29. Coming  to  the  order  itself  we  must  consider  certain objections of Mr Mani which are, in effect, that there are three features in the order which make it unconstitutional. In  the first  place,  according to  him the order  is  directed against the entire public though the Magistrate has stated clearly that it was promulgated because of the serious turn

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 25 of 72

which an industrial  dispute had taken. Mr Mani contends that  it  is  unreasonable  to  place  restrictions  on  the movements of the public in general when there is nothing to suggest that members of the public were likely to indulge in activities prejudicial to public order. It is true that there is no suggestion that the general public was involved in the industrial  dispute.  It  is  also true that  by operation of  the order the movements of the members of the public would be restricted in particular areas. But it seems to us that it would be extremely difficult for those who are in charge of law  and  order  to  differentiate  between  members  of  the public  and  members  of  the  two  textile  unions  and, therefore,  the  only  practical  way  in  which  the  particular activities  referred  to  in  the  order  could  be  restrained  or restricted would be by making those restrictions applicable to the public generally.”

23) It was, thus, argued that mere apprehension of breach of peace

was sufficient to prohibit any demonstration or dharna etc.  It was

also  submitted  that  Section  144  of  the  Cr.P.C.  permitted

anticipatory action and, thus, even on anticipation that a particular

demonstration  may lead  to  breach  of  peace,  was  sufficient  to

invoke the provisions of Section 144 Cr.P.C. and pass appropriate

prohibitory  orders.   It  was  argued  that  the  impugned  orders

passed  should  be  examined  keeping  in  view  the  aforesaid

principles of law and these orders were passed by the Competent

Authority specifying that such demonstrations etc. were likely to

cause  obstruction  to  traffic  and  danger  to  human  safety  and

disturbances of public tranquility which was specifically stated in

para 2 of the orders reading as under:

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“And whereas reports have been received indicating that such conditions now exist that unrestricted holding of public meetings, processions/demonstrations etc. in the area are likely  to  cause  obstruction  to  traffic,  danger  to  human safety and disturbance of public tranquility.”

24) It  was  argued  that  there  was  due  application  of  mind  by  the

Assistant  Commissioner  of  Police  who  had  gone  through  the

reports  and  drew  to  a  conclusion  therefrom  that  unrestricted

holding  of  public  meetings,  processions/demonstrations  was

likely  to  cause  problems  like  obstructions  to  traffic,  danger  to

human  safety  and  disturbances  of  public  tranquility.   The

Assistant Commissioner of Police, thus, satisfied the requirement

of Section 144 of Cr.P.C. It was also argued that there was no

complete  ban  imposed  on  such  public  meetings  etc.  and  the

orders prohibited these meetings etc. without written permission.

In  other  words,  before  holding  any  such  public  meetings,

processions,  demonstrations,  etc.  prior  permission  of  the

authorities was required which should be considered on case to

case basis.

25) The learned ASGs laid great emphasis on the fact that New Delhi

was the capital city and entire activity of Central Government was

mainly located in Central Delhi area which was covered by the

prohibitory orders passed, namely, Parliament House, North and

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 27 of 72

South Block, Central Vista Lawns and its surrounding localities

and areas.  It was also emphasised that there were official visits

by foreign dignitaries to this capital city on a regular basis and

any  untoward  incident  as  a  consequence  of  such  public

meetings,  processions,  demonstrations,  dharnas,  etc  had

potentials of damaging the reputation of the country itself.  The

learned counsel went to the extent of arguing that there had been

instances where, in the past, on the visit of particular Heads of

the Foreign States,  attempts were made to hold demonstrations

against such persons and their visits, which was not conducive

for  maintaining  healthy  bilateral  relations  between  the  two

countries.  The submission in the aforesaid context was that the

area covered by prohibitory orders was sensitive area and such

demonstrations  as  well  as  public  meetings  etc.  could  not  be

allowed in a routine manner.   It  was also submitted that Delhi

being capital of the country, there was a tendency on the part of

organizations located throughout  the country  to  come to  Delhi

and  hold  public  meetings,  processions,  demonstrations,  etc.

Please was that if such requests are acceded to then there would

be  nth number  of  these  public  meetings,  processions/

demonstrations everyday in Central Delhi which would jeopardise

the  normal  functioning  in  the  Parliament  (whenever  it  is  in

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 28 of 72

session) as well as that of the Central Government offices located

in North and South Block.

26) The  respondents,  for  the  perusal  of  the  Court,  produced  the

record pertaining to these requests which were received by the

authorities,  showing  that  alarmingly  large  number  of  such

requests  were  received,  which  was  clearly  unmanageable.

Records of  the intelligence reports were also produced for  the

perusal of the Court to support the plea that orders passed by the

Assistant  Commissioner  of  Police  under  Section  144  Cr.P.C.,

were backed by sufficient  material  depicting due application of

mind.

27) The learned ASGs also referred to the annexure annexed with

the counter affidavit filed on behalf of the respondents to this writ

petition.  Annexure R-1 gives details of cases of riots registered

under  Section  186/353,  IPC  against  protest  through

demonstration for the period from March, 2015 to 5th April, 2018,

which shows that most of the time such protest/demonstrations

were turning violent leading to commission of crimes under the

aforesaid provisions of  the IPC. Annexure R-2 gives details of

persons who were detained under Section 65 of the Delhi Police

Act while holding protest/demonstrations  during the said period.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 29 of 72

28) It was, thus, submitted that no doubt the petitioner had a right to

hold  dharnas,  protests,  marches,  demonstrations  or  public

meetings etc. which was their fundamental right.  However, such

a  right  was  not  untrammeled  or  absolute  but  was  subject  to

reasonable restrictions.  Having peculiar conditions prevailing in

this area of New Delhi in question, the impugned orders passed

under Section 144 Cr.P.C. amounted to reasonable restrictions.

Nevertheless, at the same time, in order to ensure that petitioner

and others are able to exercise their right of demonstration, etc.,

the area in Ramlila Maidan was specifically earmarked for such

purposes.  It was, thus, argued that promulgation of Section 144

Cr.P.C. was not only a matter of necessity to prevent the breach

of public tranquility, riot, affray, but was also in public interest and

public safety.  Such an order was said to be legally justified on

the  test  of  principles  laid  down  in  Madhu  Limaye  v.  Sub-

Divisional Magistrate4, where the Court held as under:

“24..…………….There  is  no  general  proposition  that  an order under Section 144, Criminal Procedure Code cannot be  passed  without  taking  evidence:  see  Mst  Jagrupa Kumari v. Chobey Narain Singh [37 Cr LJ 95] which in our opinion is  correct  in  laying down this  proposition.  These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public  tranquility,  riots  and  affray  lead  to  subversion  of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to

4 (1970) 3 SCC 746 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 30 of 72

be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not  be decided here.  In so far as the other parts of  the section are concerned the key-note of the power is to free society  from menace of  serious disturbances of  a  grave character.  The  section  is  directed  against  those  who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.”

29) Reference was also made to  the following passage  from the

judgment  of  this  court  in  Bimal  Gurun  v.  Union  of  India5,

wherein it was held as under:

“Demonstrations  whether  political,  religious  or  social  or other demonstrations which create public, disturbances or operate  as  nuisances,  or  create  or  manifestly  threaten some tangible public or private mischief, are not covered by  protection  under  Article  19(1).  A demonstration  might take the form of an assembly and even then the intention is to  convey  to  the  person  or  authority  to  whom  the communication is intended the feelings of the group which assembles. From the very nature of things a demonstration may take various forms; “it may be noisy and disorderly”, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b).”

30) Submission was sought to be buttressed by reading the following

extracts  from  the  judgment  in  the  case  of  Anita  Thakur  v.

Government of Jammu and Kashmir6, where this Court noticed

that  more often than not,  such protesters take to hooliganism,

5 (2018) SCC Online SC 233 6 (2016) 15 SCC 525 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 31 of 72

vandism and even destroy public/private property:

“Before adverting to the issue at hand, we would like to make some general remarks about the manner in which these demonstrations are taking shape. Recent happenings  show an unfortunate  trend where  such demonstrations and protests are on increase. There are all kinds of protests: on social issues, on political issues  and on  demands  of  various  sections  of  the society of varied kinds. It is also becoming a common ground that religious, ethnic, regional language, caste and class divisions are frequently exploited to foment violence whenever mass demonstrations or dharnas, etc. take place. It is unfortunate that more often than not,  such protesters take to hooliganism, vandalism and  even  destroy  public/private  property.  In  the process,  when  police  tries  to  control,  the protesters/mob  violently  target  policemen  as  well. Unruly  groups  and  violent  demonstrations  are  so common that people have come to see them as an appendage of Indian democracy. All these situations frequently  result  in  police  using  force.  This  in  turn exacerbates  public  anger  against  the  police.  In Kashmir itself  there have been numerous instances where separatist groups have provoked violence. In this  scenario,  task  of  the  police  and  law-enforcing agencies  becomes  more  difficult  and  delicate.  In curbing  such  violence  or  dispersing  unlawful assemblies,  police  has  to  accomplish  its  task  with utmost care, deftness and precision. Thus, on the one hand, law and order needs to be restored and at the same time, it is also to be ensured that unnecessary force or the force beyond what is absolutely essential is  not  used.  Policemen  are  required  to  undergo special  training  to  deal  with  these situations.  Many times  the  situations  turn  ugly  or  go  out  of  control because  of  lack  of  sufficient  training  to  the  police personnel  to  deal  with  violence  and  challenges  to their  authority.  There are various  documents  in  the form  of  police  manual  and  even  international covenants proscribing use of unnecessary force and mandating that force should only be used when it is absolutely necessary.  Even when used, it should be minimum and proportional to the situation and its use to be discontinued as soon as the danger to life and property subsides.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 32 of 72

37.  From the above,  it is clear that Article 19(1)(a) and  (b)  gives  Constitutional  right  to  all  citizens freedom  of  speech  and  expression  which  includes carrying  out  public  demonstration  also  but  public demonstration  also  but  public  demonstration  when becomes violent and damages the public and private properties and harm lives of people it  goes beyond fundamental  rights  guaranteed  under  Article  19(1) and becomes an offence punishable under law.”

[Emphasis supplied]

31) It  was  further  submitted  that  the  stand  of  respondents  was

vindicated by the judgment dated 5th October, 2017 passed by

NGT in  Original  Application  No.  63  of  2016  (Varun  Seth  and

Others v. Police Commissioner, Delhi Police)  wherein the NGT

judicially  recognised  that  processions,  demonstrations  and

agitations etc. had become regular feature, which was noted by

the NGT.

32) Before  we  proceed  to  consider  the  respective  submissions

advanced by counsel for the parties on either side and take a call

therefrom, it  would be advisable to take note of the discussion

contained  in  the  judgment  dated  5th October,  2017 of  NGT in

Varun Seth’s case in the context of Jantar Mantar area .   The

scope of discussion in the said judgment, though subject matter

of  challenge in  civil  appeals,  would  give  more  comprehensive

picture of the ground realities.

33) The  subject  matter  of  the  said  judgment  is  confined  to  the

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 33 of 72

demonstrations  etc.  at  Jantar  Mantar  Road,  particularly  the

stretch between the Ashoka Road and the Parliament Street.  It is

also relevant to note that the Original Application before the NGT

was filed by the residents who have their residential houses on

the aforesaid stretch as the area in question has been earmarked

as  residential  area  even  under  the  Master  Plan,  2021.   That

apart,  there are residences of  Members of  Parliament  as also

State Guest House of Kerala, Office of Delhi Metro Corporation

and offices of some of the political parties on the said road.

34) The  NGT noticed that Jantar Mantar Road has become a ground

for  raising  protest  by  various category  of  groups,  political  and

non-political.  Such protests are not temporary or transient.  The

protestors  have  rather  put  up  tents  and  other  arrangements

where people have been staying for many months. Some of the

structures have been on the side of the street.  The organizers of

these protests make arrangement for food, lodging, etc. on such

makeshift  structures.  They have also affixed loud speakers at

various places in the area.  NDMC has provided the facility of

sanitation and cleaning by making provision for only two mobile

toilets.  The photographs attached to the application clearly depict

the  plight  of  the  poor  residents,  some  of  them  being  senior

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 34 of 72

citizens, who had been protesting against unhygienic conditions,

litters, crowds, noise pollution, etc. for last couple of years.  Apart

from  it,  the  personnel  of  police/paramilitary  force  at  the  said

stretch of road, which on some days of protest go up to around

200  to  400,  also  adds  to  the  congestion  in  the  area.   The

sanitation  facility  provided  in  such  a  situation  is  grossly

inadequate  which  results  in  smell  emanating  from  the  mobile

vans and nearby areas creating unhygienic conditions and low

aesthetic  value  for  the  residents  and  others  visiting  the  area.

Moreover, some protestors under the garb of cow protection have

brought in cows to the said stretch of  road and kept them for

nearly sixteen months.  Even a bullock cart had been kept at the

site by the protestors.

35) During the course of  heavy protest  day,  the police  completely

blocks the road of Jantar Mantar by barricading which coerces

the residents of  the area to park their  vehicles elsewhere and

make way to their residences on foot.  This becomes extremely

difficult for senior citizens and small children.  In fact, there had

been  instances  of  medical  emergencies  where  police  had  to

plough the ambulance through the vehicles of the protestors, the

police and the crowd.  The presence of large number of people

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 35 of 72

as well as vehicles in the area causes traffic jams.

36) The protestors continuously play drums, music, microphones, etc.

which disturb the peace and tranquility of the place.  The noise

emanating  from  the  said  area  on  account  of  aforesaid

loudspeakers, etc. definitely generates noise which exceeds the

permissible  limit.   Under  the  Noise  Pollution  (Regulation  and

Control)  Rules,  2000  and  the  schedule  given  therewith  the

ambient  air  quality  standards  in  respect  of  the  noise  for  a

residential area is 55 db (A) leq during the day time and 45 db (A)

leq in the night.   

37) The NGT noted the adverse affect of such dharnas and protests

at Jantar Mantar Road in the following manner:

“35.  But  Jantar  Mantar  and  its  surrounding  areas,  once known for its history, has now become a battle ground for protestors  and  agitators.  The  area  has  become  a permanent  place  for  filth  and  litter  indulged  in  by  the protestors.  The other civic authorities such as NDMC and the Police authorities have also miserably failed to maintain cleanliness  in  and  around  Jantar  Mantar.   They  have further  neglected  and  failed  to  ensure  peaceful  and comfortable  living  for  the  residents  of  the  locality.  The petitioners have placed on record a number of photographs [annexure P 1 (Colly)]  which shows permanent  structure erected for delivering public speeches, temporary shelters, tents  for  living.   They  have mushroomed in  the  locality. Vehicles  are  delivering  food,  drinks,  eatables  and  the protestors cooking food, washing and drying their clothes, etc.

36. Since  long,  on  the  stretch  of  Jantar  Mantar  road protest/dharnas  are  being  regularly  organized  (despite

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 36 of 72

there being no legal or administrative order/permission for designating of place as a protest ground).  In recent past, the number of protest/dharnas, as well  as that of people constituting  them  have  tremendously  increased.   The pollution in the area have also increased many folds, on account of noise, large gathering of people, waste, etc. The noise pollution has been increased due to installation of traditional public address system based on the horn loud speakers  by  protestors.   Besides,  assembling  of  large crowds which is at times in thousands, also contribute to the noise pollution.  Further, the plight of the residents is compounded by deployment of large number of police and para  military  personals  to  control  and  manage  the protestors.

In  the  result,  it  not  only  restricts  entry/exit  of  the residents  from  their  respective  residences  but  also,  at times, permits access to the residents only by foot due to complete  stoppage  of  vehicles.   There  have  been instances where the visitors of the people residing in the area have to park their vehicles at the other end of Jantar Mantar road due to restrictions imposed by the police.  In fact there is absolutely no space left on the road since the protestors  occupy  the  same  and  the  police  personal monitoring  the  activity  are  found  to  be  standing/sitting outside the houses of the residents.

In addition to it, on the entire road there is littering and  despite  of  the  best  efforts  of  NDMC,  it  cannot  be cleared because of large crowd gathering in the area and are  having  food  etc.  and  using  mobile  toilets/sanitary services at the site of protest.  There are protestors who have,  in  the  name of  cow protection,  been  bringing  the cows  along  with  bullock  carts  on  the  stretch  of  Jantar Mantar road which aggravates the problem, being faced by the residents since long.

The  residents  who  have  to  bear  the  aforesaid problem  includes  their  children  and  old  aged  family members.  The constant loud noises, round the year, from the  protest  ground  seriously  disturb  the  children  even during  their  examination  time.   Similarly,  the  elderly residents have also been diagnosed with noise age related problem.  The residents on the stretch of  Jantar  Mantar road are totally at the mercy of the protestors.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 37 of 72

37.   The  processions,  demonstrations  and  agitations  by social groups, NGOs, religious groups and political parties had become a regular feature, so much so, that everyday dharnas, agitations, etc. are being held on Jantar Mantar road.   Consequently,  the  lives  of  the  petitioners  and  all other residents on Jantar Mantar road is being persistently disturbed by the dharnas which are a few thousands every year.  These dharnas and protests are stretched almost on the  entire  Jantar  Mantar  road,  on  both  sides  and  even across the width of the road.  Dharnas on Jantar Mantar road  are  coupled  with  non-stop  slogans  and  it  has developed into  a  place  of  inhabitation  for  the  protesters who also carry with them tents and temporary shelters.  It is used as a place for sleeping, to take bath, cook food, etc. by the protesters and they live there for months together. Above  all,  the  people  sitting  on  dharna,  carrying  on processions  and  agitations  continuously  play  loud speakers, not only during day but also till late night.

38. The  continuous  activity  of  the  protesters,  agitators and dharna/processions for a number of years by now, the site  has  virtually  become  hell  for  the  residents  of  the locality  who  cannot  sleep  at  night,  face  noise  pollution during the day, having difficulties in ingress and egress to their residencies, much less to say, to take their vehicles up to  their  residences.   Many  a  times,  when  dharnas, agitations,  processions,  etc.  are  on  their  peak  specially during  Parliament  session,  the  residents  are  even prevented or with great difficulty they are able to walk down to their residences because the Police for the purpose of maintaining law and order puts barricades and even close the road. Such being the situation of the stretch on Jantar Mantar  road,  great  difficulties  have  been  created  to  the children/students  residing  in  that  area.   The  situation  is being aggravated day by day and has resulted in health problems for the residents as many of them now have high blood pressure, become hart patient and old age persons have  now  started  suffering  from  chronic  ailments.   The road starting from Jantar Mantar and leading to Parliament has turned into a place of totally different nature which is being  used  for  various  purposes.   The  protesters  come there from various parts of the country travelling by trucks, buses, etc., and they park their vehicles in and around the residential  buildings.   In  fact,  the locality  has completely changed where one finds that men, women and children are bathing, washing their  clothes under Delhi Jal  Board tankers and the situation becomes worse when the people

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 38 of 72

are seen defecating in the open, on pavements, etc. which creates a totally unhygienic situation on the entire road.

40. It is relevant to mention here that continuous noise by  non-stop  slogans  and  use  of  loudspeakers  by  the protestors, for hours together, is more than just a nuisance. It constitutes a real and present danger to people’s health. Day and night, at home, at work, and at play, noise can produce serious physical and psychological stress.  No one can be immune to this stress.  Though we try to adjust to noise by ignoring it, the ear, in fact, never closes and the body still responds-sometimes with extreme tension, as to a strange sound in the night.”

38) The NGT thereafter discussed the ill-effects of the noise pollution

by quoting various research and field studies.  It also referred to

various statutory provisions which aim to curb noise pollution and

the  judgments  of  Supreme  Court  as  well  as  High  Courts,

including the judgment in the case of Ramlila Maidan Incident v.

Home Secretary,  Union  of  India  and  Others7,  wherein  right  to

proper sleep has been considered as fundamental right, being a

facet of  Article 21 of  the Constitution.  Applying that  law to the

facts of the case at hand, it came to conclusion that residents of

Jantar  Mantar  Road  are  not  living  a  normal  life  and  their

difficulties were increasing by the day.  Such demonstrations with

loud noise were also causing various kinds of health problems

like  hearing  problem,  blood  pressure,  hypertension  and  other

serious diseases relating to heart etc. The NGT found that they

were suffering because of  gross violation of  laws, air  pollution 7 (2012) 5 SCC 1 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 39 of 72

and  health  hazard,  due  to  lack  of  cleanliness  and  non-

performance of duties by the authorities of the State.  All this is

endangering their lives.  The environmental conditions at Jantar

Mantar  Road  in  relation  to  noise  pollution,  cleanliness,

management  of  waste  and  public  health  had  been  grossly

deteriorated.  The situation was becoming alarming, day by day.

On that  basis,  the NGT found merit  in the Original  Application

filed by the residents.

39) The NGT also noted that earlier the protests/dharnas/agitations

were allowed only at Ramlila Maidan, near Ajmeri Gate in Delhi.

The said area was the place where people used to assemble for

purposes of protest march and processions.  It was the point from

where  the  agitators  were  to  start  for  their  destinations  like

Parliament  House,  office/residence  of  the  Chief  Minister,  the

Home  Minister,  etc.  etc.   Subsequently,  the  battle  ground  for

protestors  and agitators  came to  be the Boat  Club near  India

Gate.  Later, the Police shifted the place of agitation from Boat

Club to Jantar  Mantar,  apparently  for  the reason that  the said

place was creating obstruction to traffic.  It was the department of

Police, as is also mentioned in the reply, that fixed this new place

for agitations, dharnas, starting of processions, etc. upto a total

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 40 of 72

number of 5000 people and in case of more, the venue would be

Ramlila Maidan. Moreover,  with passage of time, the place for

agitators/protestors to assemble and start their processions had

no longer remained at Jantar Mantar but came down to Jantar

Mantar road which, as on date, is fully occupied by protestors,

agitators,  dharnas,  temporary  structures/make  shifts,

demonstrations,  slogans,  display  of  various  articles  and  even

animals  like  cows,  buffalo’s,  etc.   It  had  so  happened  mainly

because  the  agitators  and  protestors  were  to  ultimately  move

towards the Parliament House.  But strangely, neither the Police

nor  NDMC tried to  prevent  them in  moving away from Jantar

Mantar.  Resultantly, the entire Jantar Mantar road, stretching to

its total width, has been covered by the protestors.  Above all,

when  the  agitation  consisting  of  thousands  and  thousands  of

people assemble on Jantar Mantar road, no one is there to check

their  total  number  and  in  case  of  the  number  exceeding  five

thousand, to send them to Ramlila ground at Ajmeri Gate.

40) In the aforesaid conspectus, the NGT has given the directions

(already reproduced above) which include shifting the protestors,

agitators and the people holding dharnas to the alternative site at

Ramlila Maidan, Ajmeri Gate, Delhi.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 41 of 72

41) In  order  to  have  holistic  view  of  the  issue  raised  in  the  Writ

Petition (Civil)  No. 1153 of  2017 it  becomes necessary to first

deal  with the challenge to the aforesaid orders passed by the

NGT, as the particular result of these appeals preferred against

that judgment would facilitate the Court to find out the solution for

Boat Club area which is the subject matter of the writ petition.

Therefore,  we  first  proceed  to  examine  the  validity  of  the

judgment dated 5th October, 2017, rendered by the NGT.

42) We have already captured the essence of the reasoning on which

the  judgment  of  the  NGT is  based upon.   The considerations

which prevailed upon the NGT to  pass such an order  can be

stated, in bullet form.  These are :  

 Area in question where the demonstrations were being held

is  a  stretch  between  the  Ashoka  Road  and  the  Parliament

Street.

 The said area is inhabited as there are residential houses.

The area is marked as “residential  area even under Master

Plan 2021”.  

 Apart from houses of private citizens, there are residences

of  Members  of  Parliament  and  also  State  Guest  House  of

Kerala, Office of Delhi Metro Corporation as well as offices of

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 42 of 72

some of the political parties on the said road.   

 Holding of protest on the Jantar Mantar road had become a

regular  feature,  where  the  protests  were  being  held  on

continuous basis.

 Such protests are not temporary or transient. Protestors had

put up tents and other arrangements where people had been

staying for months together.  Even structures had been put on

the side of the street, where arrangement for food, lodging etc.

were being made.

 The protestors had affixed loud speakers at various places

in the area.

 Use of these loud speakers at all times, including odd times

and night hours, was creating noise pollution and this pollution

was  getting  worsened  with  the  continuous  plays  of  drums,

music  and  microphones  etc.  This  noise  pollution  was

exceeding  the  permissible  limits  laid  down  in  the  relevant

rules.

 The sanitation facility provided was grossly inadequate, it was

resulting in  foul  smell  emanating from mobile  toilet,  thereby

creating unhygienic conditions in the area.

 These  unhygienic  conditions  were  compounded  by  the  fact

that even cows were brought  to the said stretch of road by the

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 43 of 72

protestors and were kept for months together.

 On a heavy protest day, the police were completely blocking

the Jantar Mantar road by barricading, as a result, residents of

the area  were  forced to  park,  their  vehicles  elsewhere  and

make way to their residences on foot.

 It was causing extreme inconvenience to the residents and, in

particular, senior citizens and small children.

 Their  had  been  instances  of  medical  emergencies  where

police had to plough the ambulance through the vehicles of the

protestors, the police and the crowd.   

 The traffic jams in the area were a common phenomena.  All

the aforesaid factors constituted a real and present danger to

the health of the residents and also causing serious physical

and psychological stress.  

43) In the appeals filed by the appellants, questioning the validity of

this order, the main ground taken is that it is the fundamental right

of  the citizens to  hold  peaceful  demonstrations and protest  in

order to bring out their grievances to the notice of the authorities

in power so that  the concerned authorities are awakened and

attend to their  grievances as well  as take remedial  measures.

Therefore,  there  could  not  have  been  a  complete  ban  on

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 44 of 72

demonstrations in  the area in question.   It  was submitted that

Jantar Mantar is the best suited place for holding demonstrations

because of its proximity to the power that be.  It was also argued

that  if  the  authorities  had  not  provided  appropriate  sanitation

facilities or it had failed to remove the cows etc., such a failure on

the part of the authorities could not be a ground to put a complete

ban on the demonstrations.  Instead, directions could be given by

the NGT to the authorities to take appropriate measures in this

behalf.  It was also submitted that a recent study undertaken by

the AIIMS shows the adverse effect and health consequences of

community  noise  pollution  is  not  limited  to  Jantar  Mantar  but

extends to the entire Delhi.  Therefore, noise pollution could not

be a ground to impose such a ban.  It was further argued that

Ramleela ground, where the protests are now permitted, is far

away from the Parliament.  Moreover, the said area is infested by

traffic congestion all  around and, therefore, would cause much

more discomfort and hardships to not only the protestors but the

traffic in that area, which is also surrounded by hospitals, school,

college, hardship places and cricket ground.

44) Respondent nos. 1 to 7 supported the impugned order by laying

emphasis  on  the  reasons  which  are  given  therein.   It  was

submitted  that  the  fundamental  right  of  the  protestors  to  hold Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 45 of 72

demonstrations etc. does not extend to causing such discomforts

and difficulties to the residents so as to violate the fundamental

right of the residents under Article 21 of the Constitution:

45) It is further submitted that though the protestors at Jantar Mantar

road were being allowed to exercise fundamental right to protest

by way of loudspeakers, but the said right cannot be provided by

the State to curtail  the rights of the residents citizens, qua the

right not to listen.  The said principle of reasonable restriction on

this right is enshrined in Article 19(2) to (6) of the Constitution of

India and the burden  of proof on State to justify reasonability.

This has been upheld by the Supreme Court of India in the case

of Ramlila Maidan Incident7.

46) It is also argued that the Central Government, through MoEF &

CC, have notified Noise Pollution (Regulation and Control) Rules

on  11.02.2000,  under  Environment  (Protection)  Act,  1986,

wherein  difference  zones  such  as  industrial,  residential,

commercial  and  silence  zones  have  been  categorised  for  the

purpose  of  regulation  and  control  of  noise  producing  and

generating sources.  These rules govern the restriction of the use

of loud speaker, public address system, noise producing system,

etc.  Provisions  have  also  been  made  for  ambient  air  quality

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 46 of 72

standards in respect of noise to control the noise from source.

The respondent  had also mentioned about  the harmful  effects

resulting  from noise  pollution  by  the  various  studies  made  by

World Health Organisation and the study undertaken by AIIMS

hospital  which  shows  the  adverse  effect  and  health

consequences of community noise pollution.

47) Aid was also taken from the following judgments.

“(i)     Noise Pollution (V), in Re v. Forum Prevention of Environmental and Sound Pollution; (2005) 5 SCC 733

(ii)    Anirudh Kumar v. Municipal Corporation of Delhi and Others;  (2015) 7 SCC 779

(iii)    State of Rajasthan v.  G. Chawla and Dr. Pohumal; 1959 Suppl (1) SCR 904

(iv)   Rabin Mukherjee and Others v. State of West Bengal and Others; AIR 1985 Cal 222

(v)   P.A. Jacob v. The Superintendent of Police, Kottayam and Another; AIR 1993 Kerala 1”

48) We may state at the outset that none of the parties have joined

issue insofar as law on the subject is concerned.  Undoubtedly,

holding peaceful demonstrations by the citizenry in order to air its

grievances and to ensure that these grievances are heard in the

relevant  quarters,  is  its  fundamental  right.   This  right  is

specifically enshrined under Article 19(1)(a) and 19(1)(b) of the

Constitution of India.  Article 19(1)(a) confers a vary valuable right

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 47 of 72

on the citizens, namely,  right of free speech.  Likewise, Article

19(1)(b)  gives  right  to  assemble  peacefully  and  without  arms.

Together, both these rights ensure that the people of this country

have right to assemble peacefully and protest against any of the

actions  or  the  decisions  taken  by  the  Government  or  other

governmental authorities which are not to the liking.  Legitimate

dissent is a distinguishable feature of any democracy.  Question

is not as to whether the issue raised by the protestors is right or

wrong or it is justified or unjustified.  The fundamental aspect is

the  right  which  is  conferred  upon  the  affected  people  in  a

democracy  to  voice  their  grievances.   Dissenters  may  be  in

minority.  They have a right to  express their views.  A particular

cause which, in the first instance, may appear to be insignificant

or  irrelevant  may gain momentum and acceptability  when it  is

duly voiced and debated.  That is the reason that this Court has

always  protected  the  valuable  right  of  peaceful  and  orderly

demonstrations and protests.

49) In  Babulal  Parate  v.  State  of  Maharashtra8,  this  Court

observed:

“The right  of  citizens to take out  processions or  to  hold public  meetings  flows  from  the  right  in  Art.  19(1)(b)  to assemble peacably and without arms and the right to move anywhere in the territory of India.”

8 1961 (3) SCR 423 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 48 of 72

50) In Kameshwar Prasad v. State of Bihar9  the Court was mainly

dealing  with  the  question  whether  the  right  to   make  a

demonstration  is  protected  under  Article  19(1)(a)  and  (b)  and

whether a government servant is entitled to this right.  This Court

held :

“A demonstration might take the form of an assembly and even  then  the  intention  is  to  convey  to  the  person  or authority  to  whom  the  communication  is  intended  the feelings  of  the  group  which  assembles.   It  necessarily follows that there are forms of demonstration which would fall  within  the freedoms guaranteed by Art.  19(1)(a)  and 19(1)(b).  It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy  and  disorderly,  for  instance  stone-throwing  by  a crowd  may  be  cited  as  an  example  of  a  violent  and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b).  It can equally be peaceful and orderly such as happens when the members of the group merely  wear  some  badge  drawing  attention  to  their grievance.”

51) The Supreme Court has also gone beyond upholding the right to

protest as a fundamental right and has held that the State must

aid  the  right  to  assembly  of  the  citizens.   In  the  Constitution

Bench  Judgment,  Himat  Lal  K.  Shah  v.  Commissioner  of

Police, Ahmedabad10 ,  while dealing with the challenge to the

Rules  framed  under  the  Bombay  Police  Act  regulating  public

meetings  on  streets,  held  that  the  Government  has  power  to

regulate which includes prohibition of public meetings on streets

9 (1962) Supp 3 SCR 369 10 (1973) 1 SCC 227 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 49 of 72

or highways to avoid nuisance or disruption to traffic and thus, it

can provide a public meeting on roads, but it does not mean that

the government can close all the streets or open areas for public

meetings, thus denying the fundamental right which flows from

Article 19(1)(a) and (b).  The Court held:

“33. This is true but nevertheless the State cannot by law  abridge  or  take  away  the  right  of  assembly  by prohibiting  assembly  on  every  public  street  or  public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.

xxx xxx xxx

70. Public meeting in open spaces and public streets forms part  of  the  tradition  of  our  national  life.  In  the  pre- Independence days such meetings have been held in open space  and  public  streets  and  the  people  have  come to regard it as a part of their privileges and immunities. The State and the local  authority  have a virtual  monopoly of every  open  space at  which  an  outdoor  meeting  can  be held.  If,  therefore,  the  State  or  Municipality  can constitutionally close both its streets and its parks entirely to  public  meetings,  the  practical  result  would  be  that  it would be impossible to hold any open-air meetings in any large city. The real problem is that of reconciling the city's function  of  providing  for  the  exigencies  of  traffic  in  its streets and for the recreation of the public in its parks, with its  other  obligations,  of  providing  adequate  places  for public  discussion  in  order  to  safeguard  the  guaranteed right of public assembly. The assumption made by Justice Holmes is that a city owns its parks and highways in the same sense and with the same rights as a private owner owns his property with the right to exclude or admit anyone he  pleases.  That  may  not  accord  with  the  concept  of dedication of public streets and parks. The parks are held for public and the public streets are also held for the public. It  is  doubtless  true  that  the  State  or  local  authority  can regulate its property in order to serve its public purposes. Streets and public parks exist primarily for other purposes and the social interest promoted by untrammelled exercise

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 50 of 72

of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference  between  reasonable  regulation  and  arbitrary exclusion.”

52) While  adjudicating  with  respect  to  the  validity  of  police  action

against protestors, this Court again reiterated that right to protest

was a fundamental right guaranteed to the citizens under Article

19.  In the case of Ramlila Maidan Incident (supra),  the Court

observed that the right to assembly and peaceful agitations were

basic  features  of  a  democratic  system  and  the  Government

should encourage exercise of these rights:

“245.  Freedom  of  speech,  right  to  assemble  and demonstrate by holding dharnas and peaceful agitations are  the  basic  features  of  a  democratic  system.  The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right  to  freedom  of  speech  as  understood  in  its comprehensive  sense  and  not  to  throttle  or  frustrate exercise  of  such  rights  by  exercising  its  executive  or legislative powers and passing orders or taking action in that  direction  in  the  name of  reasonable  restrictions. The preventive steps should be founded on actual and prominent  threat  endangering  public  order  and tranquillity,  as  it  may  disturb  the  social  order.  This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them.”

53) Further,  Anita  Thakur7,  the Court  recognised that  the right  to

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 51 of 72

peaceful protest was a fundamental right under Article 19(1), (b)

and (c) of the Constitution, subject to reasonable restrictions.  It

was finally held that  in  that  while  the protestors turned violent

first, the police used excessive force:

“12. We  can  appreciate  that  holding  peaceful demonstration  in  order  to  air  their  grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a),  19(1)(b)  and  19(1)(c)  of  the  Constitution. Article  19(1)(a)  confers  freedom  of  speech  to  the citizens of this country and, thus, this provision ensures that  the  petitioners  could  raise  slogan,  albeit  in  a peaceful  and orderly  manner,  without  using  offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the  petitioners  could  take  out  peaceful  march.  The “right  to  assemble”  is  beautifully  captured  in  an eloquent statement that “an unarmed, peaceful protest procession in the land of “salt satyagraha”, fast-unto- death and “do or die” is no jural anathema”. It hardly needs elaboration that a distinguishing feature of  any democracy is the space offered for legitimate dissent. One  cherished and  valuable  aspect  of  political  life  in India is a tradition to express grievances through direct action  or  peaceful  protest.  Organised,  non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.

13. Notwithstanding  above,  it  is  also  to  be  borne  in mind that the aforesaid rights are subject to reasonable restrictions  in  the  interest  of  the  sovereignty  and integrity of India, as well as public order. It is for this reason,  the State authorities  many a times designate particular  areas  and  routes,  dedicating  them  for  the purpose of holding public meetings.

15. Thus,  while  on  the  one  hand,  citizens  are guaranteed  fundamental  right  of  speech,  right  to assemble for the purpose of carrying peaceful protest processions and right of free movement, on the other hand, reasonable restrictions on such right can be put

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 52 of 72

by law. Provisions of IPC and CrPC, discussed above, are in the form of statutory provisions giving powers to the State to ensure that such public  assemblies, protests, dharnas  or  marches  are  peaceful  and  they  do  not become “unlawful”. At the same time, while exercising such powers, the authorities are supposed to act within the  limits  of  law  and  cannot  indulge  into excesses……….”

 54) The right to protest is, thus, recognised as a fundamental right

under the Constitution.  This right is crucial in a democracy which

rests on participation of an informed citizenry in governance. This

right is also crucial since it strengthens representative democracy

by enabling direct participation in public affairs where individuals

and groups are able to express dissent and grievances, expose

the flaws in governance and demand accountability from State

authorities as well a powerful entities.  This right is crucial in a

vibrant democracy like India but more so in the Indian context to

aid in the assertion of the rights of the marginalised and poorly

represented minorities.

55) At  the  same  time,  aforesaid  rights  under  Article  19(1)(a)  and

19(1)(b) of the Constitution are not untrammeled and unlimited in

their  scope.   Article  19(2)  to  (6)  make a specific  provision for

imposing  reasonable  restrictions  on  the  rights  conferring

restrictions on the exercise of such rights.  Articles 19(2) and (3),

in this behalf read as under:

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 53 of 72

“(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of  any existing  law,  or  prevent  the State  from making any law, in so far as such law imposes reasonable restrictions on the exercise of  the right  conferred by the said  sub  clause  in  the  interests  of  the  sovereignty  and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent  the State from making any law imposing,  in  the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause”

56) It can be deciphered from the aforesaid provisions that exercise

of right to speech conferred in clause (a) and right to assemble

peacably  and  without  arms  in  clause  (b)  is  made  subject  to

reasonable restrictions which can be imposed, inter alia, in the

interests of sovereignty and integrity of India or public order.  This

legal position is also accepted by all the parties.

57) In  this  hue,  we  have  to  examine  as  to  whether  total  ban  of

demonstrations etc. at Jantar Mantar road amounts to violation of

the  rights  of  the  protestors  of  the  Constitution  or  this  would

amount to a reasonable restriction in the interest of ‘public order’.

There would be also an incidental and interrelated issue, namely,

whether the manner in which the demonstrations etc. are held at

Jantar Mantar, they violate the fundamental right of the residents

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 54 of 72

guaranteed under Article 21 of the Constitution.  If the answer is

in the affirmative, it would raise another issue, namely, balancing

of the two rights. The right of the protestors under Article 19(1)(a)

and 19(1)b) of  the Constitution and the rights of  the residents

under  Article  21  of  the  Constitution,  as  both  the  rights  are

fundamental rights.

58) In the aforesaid context,  it  would be pertinent to point out that

there may be situations where conflict  may arise between two

fundamental rights.  Situation can be conflict on inter fundamental

rights,  intra  fundamental  rights  and,  in  certain  peculiar

circumstances, in respect of some person one fundamental right

enjoyed by him may come in conflict with the other fundamental

right guaranteed to him.  In all such situations, the Court has to

examine as to where lies the larger public interest while balancing

the two conflicting rights.  It is the paramount collective interest

which would ultimately prevail.

59) We may reproduce the following discussion from the judgment of

this Court in  Subramanian Swamy v.  Union of India, Ministry

of Law & Ors.11:

“Balancing of fundamental rights

11 (2016) 7 SCC 221 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 55 of 72

136. To appreciate what we have posed hereinabove, it is necessary to dwell upon balancing the fundamental rights. It  has  been  argued  by  the  learned  counsel  for  the petitioners  that  the  right  conferred  under  Article  19(1)(a) has to be kept at a different pedestal than the individual reputation  which  has  been  recognised  as  an  aspect  of Article 21 of the Constitution. In fact the submission is that right to freedom of speech and expression which includes freedom of  press should be given higher status and the individual's right to have his/her reputation should yield to the said right. In this regard a passage from Sakal Papers (P) Ltd. has been commended to us. It says: (AIR pp. 313- 14, para 36)

“36. … Freedom of speech can be restricted only in the  interests  of  the  security  of  the  State,  friendly relations with foreign State, public order, decency or morality  or  in  relation  to  contempt  of  court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it  is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects  for  securing  which  this  could  be  done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.”

(emphasis supplied)

137.  Having  bestowed our  anxious  consideration  on  the said  passage,  we  are  disposed  to  think  that  the  above passage is of no assistance to the petitioners, for the issue herein is sustenance and balancing of the separate rights, one under Article 19(1)(a) and the other, under Article 21. Hence,  the  concept  of  equipoise  and  counterweighing fundamental rights of one with other person. It is not a case of mere better enjoyment of another freedom. In  Acharya Maharajshri  Narendra  Prasadji  Anandprasadji  Maharaj  v. State  of  Gujarat,  it  has  been  observed  that  a  particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 56 of 72

to  coexist  in  harmony  with  the  exercise  of  another fundamental right by others and also with reasonable and valid  exercise  of  power  by  the  State  in  the  light  of  the directive principles in the interests of  social welfare as a whole.  The  Court's  duty  is  to  strike  a  balance  between competing claims of different interests. In DTC v. Mazdoor Congress  the  Court  has  ruled  that  articles  relating  to fundamental rights are all parts of an integrated scheme in the Constitution and their waters must mix to constitute that grand  flow  of  unimpeded  and  impartial  justice;  social, economic  and  political,  and  of  equality  of  status  and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. In St. Stephen's College v. University of Delhi this Court while emphasising the need for balancing the fundamental rights observed that: (SCC p. 612, para 96)

“96.  … It  is  necessary  to  mediate  between  Article 29(2)  and Article 30(1),  between letter  and spirit  of these articles, between traditions of the past and the convenience of the present, between society's need for stability and its need for change.”

60) In Asha Ranjan v. State of Bihar and Others12, this test of larger

public interest to balance two rights has been explained in the

following manner:

“57.  The  aforesaid  decision  is  an  authority  for  the proposition  that  there  can  be  a  conflict  between  two individuals  qua  their  right  under  Article  21  of  the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public  interest  and  further  that  would,  in  certain circumstances, advance public morality of the day. To put it differently, the “greater community interest” or “interest of the  collective  or  social  order”  would  be  the  principle  to recognise  and  accept  the  right  of  one  which  has  to  be protected.

58.   In  this  context,  reference  to  the  pronouncement  in Rev. Stainislaus v. State of M.P. would be instructive. In the said  case,  the  Constitution  Bench  was  dealing  with  two

12 (2017) 4 SCC 397 Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 57 of 72

sets  of  appeals,  one  arising  from Madhya  Pradesh  that related  to  Madhya  Pradesh  Dharma  Swatantraya Adhiniyam,  1968  and  the  other  pertained  to  the  Orissa Freedom of  Religion Act,  1967.  The two Acts insofar  as they were concerned with prohibition of forcible conversion and punishment  therefor,  were similar.  The larger Bench stated  the  facts  from  Madhya  Pradesh  case  which eventually travelled to the High Court. The High Court ruled that  that  there was no justification for  the argument  that Sections 3, 4 and 5 were violative of Article 25(1) of the Constitution.  The High Court  went  on to hold  that  those sections “establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such as conversion by force, fraud and by allurement”. The Orissa Act was declared to be ultra vires the Constitution by  the  High  Court.  To  understand  the  controversy,  the Court  posed  the  following  questions:  (Rev.  Stainislaus case, SCC p. 681, para 14)

“14. … (1) whether the two Acts were violative of the fundamental  right  guaranteed under Article 25(1)  of the  Constitution,  and  (2)  whether  the  State Legislatures were competent to enact them?”

59.  It  was contended before this Court  that the right to propagate  one's  religion  means  the  right  to  convert  a person to one's own religion and such a right is guaranteed by  Article  25(1)  of  the  Constitution.  The  larger  Bench dealing  with  the  said  contention  held:  (Rev.  Stainislaus case, SCC p. 682, para 20)

“20. We have no doubt that it is in this sense that the word “propagate” has been used in Article 25(1), for what  the  article  grants  is  not  the  right  to  convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom  of  conscience”  to  every  citizen,  and  not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one's own religion because  if  a  person  purposely  undertakes  the conversion  of  another  person  to  his  religion,  as distinguished from his effort to transmit or spread the tenets  of  his  religion,  that  would  impinge  on  the “freedom of conscience” guaranteed to all the citizens of the country alike.”

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And again: (SCC p. 682, para 21)

“21. … It has to be appreciated that the freedom of religion enshrined in the article is not guaranteed in respect of  one religion only,  but covers all  religions alike, and it can be properly enjoyed by a person if he exercises his right  in a manner commensurate with the  like  freedom  of  persons  following  the  other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion.”

60.   The  aforesaid  judgment  in  Rev.  Stainislaus  case clearly lays down, though in a different context, that what is freedom for one is also the freedom for the other in equal measure. The perception is explicated when the Court has said  that  it  has  to  be  remembered  that  Article  25(1) guarantees freedom of conscience to other citizens and not merely  to  followers  of  particular  religion and there is  no fundamental right to convert another person. The right is guaranteed to all citizens. The right to propagate or spread one's religion by an exposition of its tenets does not mean one's religion to convert  another person as it  affects the fundamental  right  of  the  other.  We have referred  to  this authority as it has, in a way, dwelt upon the “intra-conflict of a fundamental right”.

61.   Be  it  stated,  circumstances  may  emerge  that  may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right. To elaborate, as in this case, the accused has a fundamental right to have a fair trial under Article 21 of the Constitution. Similarly, the victims who are directly affected and also form a part of the constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration.  It  has  to  be  remembered  that  no fundamental right is absolute and it can have limitations in certain  circumstances.  Thus,  permissible  limitations  are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intra-conflict of

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the right conferred under the same article, like fair trial in this case, the test that is required to be applied, we are disposed  to  think,  it  would  be  “paramount  collective interest” or “sustenance of public confidence in the justice dispensation system”. An example can be cited. A group of persons in the name of “class honour”, as has been stated in Vikas Yadav v. State of U.P., cannot curtail or throttle the choice  of  a  woman.  It  is  because  choice  of  woman  in choosing  her  partner  in  life  is  a  legitimate  constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking”. It is because the sense of class honour has no legitimacy even if it  is practised by the collective under some kind of  a notion.  Therefore,  if  the collective interest or the public interest that serves the public cause and  further  has  the  legitimacy  to  claim  or  assert  a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights  of  the victims for  a  fair  trial  is  an inseparable aspect  of  Article  21  of  the  Constitution  and  when  they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be  adjudged  on  the  facts  of  each  case  and  cannot  be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of  the  balancing  that  would  subserve  the  larger  public interest and serve the majesty of rule of law. In this regard, we are reminded of an ancient saying:

“Yadapi siddham, loka viruddham

Na adaraniyam, na acharaniyam”

The aforesaid saying lays stress on public interest and its significance and primacy over certain individual interest. It may not thus have general application, but the purpose of referring to the same is that on certain occasions it can be treated to be appropriate.

62.  There may be a perception that if principle of primacy is  to  be  followed,  then  the  right  of  one  gets  totally extinguished. It has to be borne in mind that total extinction

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is not balancing. When balancing act is done, the right to fair trial  is not totally crippled, but it  is curtailed to some extent by which the accused gets the right of fair trial and simultaneously,  the  victims  feel  that  the  fair  trial  is conducted and the court feels assured that there is a fair trial in respect of such cases. That apart, the faith of the collective  is  reposed  in  the  criminal  justice  dispensation system and remains anchored.”

61) Undoubtedly,  right  of  people  to  hold  peaceful  protests  and

demonstrations  etc.  is  a  fundamental  right  guaranteed  under

Articles 19(1)(a) and 19(1)(b) of the Constitution.  The question is

as to whether disturbances etc. caused by it to the residents, as

mentioned in detail by the NGT, is a larger public interest which

outweighs  the  rights  of  protestors  to  hold  demonstrations  at

Jantar  Mantar  road  and,  therefore,  amounts  to  reasonable

restriction in curbing such demonstrations.  Here, we agree with

the  detailed  reasoning  given  by  the  NGT  that  holding  of

demonstrations  in  the  way  it  has  been  happening  is  causing

serious discomfort and harassment to the residents.  At the same

time, it is also to be kept in mind that for quite some time Jantar

Mantar has been chosen as a place for holding demonstrations

and was earmarked by the authorities as well.  Going by the dicta

in Asha Ranjan, principle of primacy cannot be given to one right

whereby the right  of  the other  gets totally  extinguished.   Total

extinction is not balancing.  Balancing would mean curtailing one

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right of one class to some extent so that the right of the other

class is also protected.

62) We feel  that  the  pathetic  conditions  which  were  caused  as  a

result of the processions, demonstrations and agitations etc. at

the  Jantar  Mantar  were  primarily  because  of  the  reason  that

authorities  did  not  take  necessary  measures  to  regulate  the

same.   Had adequate  and  sufficient  steps  were  taken  by  the

authorities to ensure that such dharnas and demonstrations are

held  within  their  bounds,  it  would  have balanced the rights  of

protestors as well as the residents.  For example, the dharnas

and protests were allowed to be stretched almost on the entire

Jantar Mantar road, on both sides, and even across the width of

the road.  Instead, a particular area could have been earmarked

for this purpose, sufficiently away from the houses etc. so that

there  is  no  unnecessary  blockage  of  roads  and  pathways.

Likewise, the demonstrators were allowed to go on with non-stop

slogans, even at odd hours, at night, and that too with the use of

loudspeakers etc.  The authorities could have ensured that such

slogans are within the parameters of noise pollution norms and

there are no shoutings or slogans at night hours or early morning

hours.  Again, these dharnas, agitations and processions could

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be prohibited on certain occasions, for example, whenever some

foreign dignitaries visit and pass through the said area or other

such sensitive occasions.  The authorities could also ensure that

the protestors do not bring their trucks/buses etc. and park those

vehicles in  and around the residential  buildings;  the protestors

are not allowed to pitch up their tents and stay for days together;

they are not allowed to bathe or wash their clothes using Delhi Jal

Board tankers or defecate in the open, on pavements; and do not

create  any  unhygienic  situations.   The  authorities  could  also

examine, while allowing such demonstration, as to the number of

protestors  who  are  likely  to  participate  and  could  refuse

permission to hold any such demonstration etc. when the number

is going to be abnormally large which, if allowed, would per se

create hardships of  various kinds to the residents.   These are

some of the examples given by us.  The underlying message is

that certain categories of peaceful protests and demonstrations,

in a guarded and regulated manner, could be allowed so as to

enable  the  protestors  to  exercise their  right  and,  at  the same

time, ensuring that no inconvenience of any kind is caused to the

residents.

63) Before  the  NGT,  the  authorities  took  the  position  that  such

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 63 of 72

demonstrations are to be allowed as the area was earmarked for

such purposes.  The residents, on the other hand, in the petition

filed by them, highlighted the infringement of their  rights which

were caused by these demonstrations.  In this kind of adversarial

approach adopted by the parties before the NGT, the NGT went

by the ground realities and the pathetic  situation faced by the

residents because of such demonstrations.  Though this analysis

of the NGT is without blemish, we, however, feel that the solution

was not to ban the demonstrations altogether.  Instead, the NGT

would  have  directed  the  authorities  to  adopt  such  measures

(some of  which are  indicated by us above)  so that  there is  a

balancing of the rights of both the sections of the society.

64) At this juncture, while discussing the aspect of balancing of the

two rights, we have to keep in mind certain other relevant factors

as well.  In the first instance, what needs to be noted is that a

portion  of  Ramlila  Maidan  has  been  earmarked  for  such

demonstrations etc.  Therefore, that space is already available.

One of the argument raised by the petitioner in the writ petition

and appellants in the appeal is that Ramlila Maidan is far away

from  that  portion  of  New  Delhi  area  where  there  is  a

concentration  of  ‘power’  and,  therefore,  holding  protests  and

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 64 of 72

demonstration at a far place in Ramlila Maidan would have no

impact or very little effect.  It was stressed that the purpose of

holding  such  demonstrations  and  raising  slogans  is  that  they

reach concerned persons for whom these are meant.  This may

be correct.  However, it is also to be borne in mind that we are

living in an era of technology where a concerned voice by a group

of  persons  can  reach  the  right  quarters  by  numerous  means.

Electronic and print media play a pivotal role.  Then, we have

social  media  and  various  applications  like  ‘WatsApp’,  ‘Twitter’,

‘Instagram’ etc.  which  take  no  time in  spreading such events.

Secondly,  though  holding  protests  and  demonstrations  is  an

accepted right, at the same time, nobody can claim that I have a

right  to  hold demonstration at  one particular  area only.   While

regulating such demonstrations in public interest, particular areas

can  be  earmarked.   On  the  other  hand,  it  is  also  to  be

acknowledged that Ramlila Maidan may not be sufficient to cater

to this requirement.  Again, this place in old Delhi is a part of very

congested area and it has its own limitations when it comes to

using this area for such purposes.  Therefore, some other area is

required.   Since,  Jantar  Mantar  was  the  area  chosen  by  the

authorities and has been in use for  quite sometime, balancing

can be done by permitting a limited part of this area for holding

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peaceful  public  meetings,  processions  etc.,  at  least  to  small

groups and, in such a manner, that  there is no disturbance or

inconvenience of any nature whatsoever, insofar as residents are

concerned.

65) Having  regard  to  the  aforesaid  discussion,  we  direct  the

Commissioner  of  Police,  New Delhi  in  consultation  with  other

concerned agencies, to devise a proper mechanism for  limited

use  of  the  area  for  such  purposes  but  to  ensure  that

demonstrations, etc. are regulated in such a manner that these

do not cause any disturbance to the residents of Jantar Mantar

road  or  the  offices  situated  there.   Detailed  guidelines  in  this

respect can be formulated.  We may also clarify that a provision

can be made for taking requisite prior permission from the Police

Commissioner  (or  his  delegated  authority)  for  holding  such

demonstration by a particular  group and while examining such

proposals the parameters can be laid down which shall be looked

into in order to decide whether the permission is to be granted or

not.  Two months’ time is given to the Commissioner of Police,

New Delhi for formulating such guidelines.   

66) The petitioner in Writ Petition (Civil) No. 1153 of 2017 wants boat

club area to be available for demonstrations, etc.  The petitioner

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has successfully demonstrated that it  is their  fundamental right

under Articles 19(1)(a) and 19(1)(b) of the Constitution.  At the

same time, it  is  also not  denied that  there can be reasonable

restrictions on exercise of this right in larger public interest.  The

respondents  have  also  highlighted  in  equal  measure  the

sensitivity of this area because of its proximity to the Parliament

House, North and South Blocks and other Central Government

offices, including frequent visits of Heads of foreign States and

other such factors.  The respondents are also justified in pointing

out  that  alarmingly  large  number  of  requests  for  holding

demonstrations  at  this  place  are  made.   Further,  intelligence

reports reveal that some of such demonstrations, if allowed, may

cause serious law and order situation.  The respondents are also

correct to the extent that this Court has not adopted ‘clear and

present danger test’, as applied by the US Courts, and instead it

is the ‘apprehension of breach of peace test’ which is to be used

in  order  to  decide  as  to  whether  a  particular

demonstration/dharna  is  to  be  allowed  or  not.   When  orders

passed under Section 144 of  the Cr.P.C.  are examined in  this

context, one may not find foul with such orders.  These orders do

not, on their face, appear to be infected with any illegality as they

prohibit  public  meetings,  assembly  of  five  or  more  persons,

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 67 of 72

processions,  demonstrations,  dharnas,  etc.  ‘without  written

permission’.   Further, such orders are passed on the basis of

intelligence reports which indicate that ‘unrestricted holding of

public  meetings’,  processions,  demonstrations,  etc.  in  the area

are likely to cause obstruction to traffic, danger to human safety

and disturbance of public tranquility.

67) The tenor or these orders and the specific language used therein

bring about the following two features:

(a) there  should  not  be  ‘unrestricted’  holding  of  public

meetings, processions, etc.; and

(b) as a corollary, the order mentions that such public meetings,

processions, demonstrations, etc. would not be allowed ‘without

written permission’.

68) The reading of these orders, thus, would indicate that there is no

absolute prohibition from holding public meetings,  processions,

demonstrations, etc.  Such activities are to be restricted in larger

public  interest  and,  therefore,  before  any group of  persons  or

person wants to carry out any such processions and dharnas, it

has  to  take prior  written permission.   This  clearly  implies  that

whenever such a request is made, the authority is to examine the

same  and  take  a  decision  as  to  whether  it  should  allow  the

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 68 of 72

proposed demonstration, public meeting etc. or not, keeping in

view  its  likely  effect,  namely,  whether  it  would  cause  any

obstruction to traffic or danger to human safety or disturbance to

public tranquility etc.  If requests made are considered and then

allowed or rejected keeping in view the aforesaid considerations,

there cannot be any quarrel as to the validity of such an order

made under Section 144 of the Cr.P.C.  That is, however, not the

ground reality.

69) No  doubt,  an  order  passed  under  Section  144  of  the  Cr.P.C.

remains  valid  for  a  period  of  sixty  days  which  is  the  limit

prescribed in that provision.  However, just before the expiry of

one  order,  another  identical  order  is  passed.   Such  repeated

orders, in continuum, have created a situation of perpetuity.  It is

argued on behalf of the respondents that as there is no change in

the situation, which remains the same insofar as sensitivity of this

area and specific/peculiar  conditions prevailing,  such orders  in

repetitive form are necessitated.  Even if we accept this position

and  proceed  on  that  basis,  this  would  only  mean  continuous

regulation  of  the  proposed  public  meetings,  processions,

demonstrations,  etc.  by not  allowing the same in ‘unrestricted’

manner.  However, in reality no such activities are allowed at all

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and,  therefore,  the  situation  which  is  created  amounts  to

‘banning’ these public  meetings,  demonstrations,  dharnas,  etc.

altogether rather than ‘regulating’ the same.   

70) In  the  aforesaid  conspectus,  here  also  the  Commissioner  of

Police,  New  Delhi  and  other  official  respondents  can  frame

proper  guidelines for  regulating such protests,  demonstrations,

etc.   As  noted  above,  the  orders  issued  under  Section  144

prohibit  certain  activities  in  the  nature  of  demonstrations  etc.

‘without permission’, meaning thereby permission can be granted

in  certain  cases.   There  can,  therefore,  be  proper  guidelines

laying  down  the  parameters  under  which  permission  can  be

granted in the Boat Club area.  It can be a very restrictive and

limited  use,  because  of  the  sensitivities  pointed  out  by  the

respondents  and also  keeping  in  mind  that  Ramlila  Maidan  is

available and Jantar Mantar Road in a regulated manner shall be

available as well,  in a couple of  months.   Thus,  the proposed

guidelines may include the provisions for regulating the numbers

of  persons  intending  to  participate  in  such  demonstrations,

prescribing  the  minimum distance  from the  Parliament  House,

North  and  South  Blocks,  Supreme  Court,  residences  of

dignitaries etc.  within  which no such demonstrations would  be

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allowed; imposing restrictions on certain routes where normally

the Prime Minister, Central Ministers, Judges etc pass through;

not  permitting any demonstrations when foreign dignitaries are

visiting a particular place or pass through the particular route; not

allowing firearms,  lathis,  spears,  swords,  etc.  to  be carried by

demonstrators; not allowing them to bring animals or pitch tents

or stay overnight; prescribing time limits for such demonstrations;

and placing restrictions on such demonstrations, etc. during peak

traffic  hours.   To  begin  with,  authorities  can  permit  those

processions  and  demonstrations  which  are  innocuous by  their

very nature.  Illustratively, school children carrying out procession

to advance some social cause or candle march by peace loving

group of persons against a social evil or tragic incident.  These

are  some  of  the  examples  given  by  us  to  signify  that  such

demonstrations can be effectively regulated by adopting various

measures instead of banning them altogether by rejecting every

request  for  such  demonstrations.   We,  therefore,  feel  that  in

respect of this area as well the authorities can formulate proper

and requisite guidelines.  We direct the Commissioner of Police,

New Delhi, to undertake this exercise, in consultation with other

authorities, within two months from today.

Writ Petition (Civil) No. 1153 of 2017 & Ors. Page 71 of 72

71) Writ  petitions  and  appeals  stand  disposed  of  in  the  aforesaid

terms.   

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; JULY 23, 2018.

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