MAZDOOR KISAN SHAKTI SANGATHAN versus THE UNION OF INDIA & ANR. on 23 July 2018

SUPREME COURT REPORTS

[2018] 11 S.C.R.

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MAZDOOR KISAN SHAKTI SANGATHAN

v.

THE UNION OF INDIA & ANR.

(Writ Petition (Civil) No.1153 of 2017)

BJULY 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Constitution of India:

Arts. 32, 19(1)(a) and 19(1)(b) – Right to protest – Right toCassemble peaceably and without arms – Writ petitions seekingquashing of the repeated imposition of police order u/s. 144 Cr.P.C.by which Central Delhi area declared as prohibited area for holdingpublic meetings, dharna, peaceful protests; quashing of the orderof NGT prohibiting/banning demonstrations at Jantar Mantar road;and issuance of writ of mandamus laying down the guidelines forDholding public meetings, dharnas – Held: Right of people to holdpeaceful protests and demonstrations etc. is a fundamental rightguaranteed u/Art. 19(1)(a) and 19(1)(b) – Peaceful protests anddemonstrations, can be allowed in a guarded and regulated manner,to enable the protestors to exercise their right, ensuring that noEinconvenience of any kind is caused to the residents – There couldbe balancing of the rights of both the protestors and the residents –For quite some time Jantar Mantar has been chosen as a place forholding demonstrations and was earmarked by the authorities aswell – However, pathetic conditions were caused as a result of theprocessions, demonstrations and agitations etc. since the authoritiesFdid not take necessary measures to regulate the same – RamlilaMaidan earmarked for such demonstrations etc, may not besufficient to cater to this requirement – Since, Jantar Mantar wasthe area chosen by the authorities and has been in use for quitesometime, balancing can be done by permitting a limited part ofGthis area for holding peaceful public meetings, processions etc. suchthat no disturbance or inconvenience of any nature is caused to theresidents – Commissioner of Police, New Delhi in consultation withother concerned agencies, to frame proper guidelines for regulatingsuch protests, demonstrations iin Jantar Mantar and Boat Club area.

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Arts. 19(1)(a), 19(1)(b) – Right to protest – Held: Holdingpeaceful demonstrations by the citizenry to air its grievances is afundamental right, enshrined u/Art.19(1)(a) and 19(1)(b), subjectto reasonable restrictions, which can be imposed in the interests ofsovereignty and integrity of India or public order – Legitimate dissentis a distinguishable feature of any democracy – It is not whetherthe issue raised by protestors is right or wrong or is justified orunjustified – Fundamental aspect is the right which is conferredupon the affected people in a democracy to voice their grievances– This right is crucial in a vibrant democracy like India but more soin the Indian context to aid in the assertion of the rights of themarginalised and poorly represented minorities.

Arts. 19(1)(a), 19(1)(b) and 21 – Fundamental rights – Rightof protestors u/Art. 19(1)(a) and 19(1)(b) vis-a-vis the rights of theresidents u/Art. 21 – Balancing of the two rights – Held: Situationsarise where there is conflict between two fundamental rights – Inrespect of some person one fundamental right enjoyed by him maycome in conflict with the other fundamental right guaranteed tohim – Principle of primacy cannot be given to one right wherebythe right of the other gets totally extinguished – Total extinction isnot balancing – Balancing would mean curtailing one right of oneclass to some extent so that the right of the other class is also protected– While balancing the two conflicting rights, the Court is to examinethe larger public interest, which would ultimately prevail.

Code of Criminal Procedure, 1973: s. 144 – Repeatedimposition of police order u/s. 144 Cr.P.C. by which Central Delhiarea declared as prohibited area for holding public meeting, dharnaor peaceful protest – Held: These orders do not, on their face, appearto be illegal as they prohibit public meetings, assembly of five ormore persons, processions, demonstrations, dharnas, etc. ‘withoutwritten permission’ – Further , such orders are passed on the basisof intelligence reports which indicate that ‘unrestricted holding ofpublic meetings’, processions, demonstrations, etc. in the area arelikely to cause obstruction to traffic, danger to human safety anddisturbance of public tranquility – Reading of these orders wouldindicate that there is no absolute prohibition from holding publicmeetings, processions, demonstrations, etc – Such activities are tobe restricted in larger public interest and, therefore, before any group AB

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Aof persons or person wants to carry out any such processions anddharnas, it has to take prior written permission – Furthermore,repeated order passed u/s. 144 in continuum, have created a situationof perpetuity – Orders issued u/s. 144 prohibit certain activities inthe nature of demonstrations etc. ‘without permission’, meaningthereby permission can be granted in certain cases – However, inBreality no such activities are allowed at all and, therefore, thesituation which is created amounts to ‘banning’ these publicmeetings, demonstrations, dharnas, etc. altogether rather than‘regulating’ the same.

Disposing of the matters, the CourtC

HELD: 1. Certain categories of peaceful protests anddemonstrations, in a guarded and regulated manner, could beallowed so as to enable the protestors to exercise their rightand, at the same time, ensuring that no inconvenience of anykind is caused to the residents. The Commissioner of Police,DNew Delhi and other official respondents can frame properguidelines for regulating such protests, demonstrations, etc inJantar Mantar and Boat Club area. [Para 62, 70] [640-E-F; 643-G-H]

2.1 Holding peaceful demonstrations by the citizenry inEorder to air its grievances and to ensure that these grievancesare heard in the relevant quarters, is its fundamental right. Thisright is specifically enshrined under Article 19(1)(a) and 19(1)(b)of the Constitution of India. Article 19(1)(a) confers a varyvaluable right on the citizens, namely, right of free speech.FLikewise, Article 19(1)(b) gives right to assemble peacefully andwithout arms. Together, both these rights ensure that the peopleof this country have right to assemble peacefully and protestagainst any of the actions or the decisions taken by theGovernment or other governmental authorities which are not tothe liking. Legitimate dissent is a distinguishable feature of anyGdemocracy. Question is not as to whether the issue raised by theprotestors is right or wrong or it is justified or unjustified. Thefundamental aspect is the right which is conferred upon theaffected people in a democracy to voice their grievances.Dissenters may be in minority. They have a right to express theirH

views. A particular cause which, in the first instance, may appearto be insignificant or irrelevant may gain momentum andacceptability when it is duly voiced and debated. That is the reasonthat this Court has always protected the valuable right of peacefuland orderly demonstrations and protests. [Para 48] [628-B-E]

2.2 The right to protest is recognised as a fundamental rightunder the Constitution. This right is crucial in a democracy whichrests on participation of an informed citizenry in governance. Thisright is also crucial since it strengthens representative democracyby enabling direct participation in public affairs where individualsand groups are able to express dissent and grievances, exposethe flaws in governance and demand accountability from Stateauthorities as well a powerful entities. This right is crucial in avibrant democracy like India but more so in the Indian contextto aid in the assertion of the rights of the marginalised and poorlyrepresented minorities. At the same time, the said rights underArticle 19(1)(a) and 19(1)(b) are not untrammeled and unlimitedin their scope. Article 19(2) to (6) make a specific provision forimposing reasonable restrictions on the rights conferringrestrictions on the exercise of such rights. It can be decipheredfrom the said provisions that exercise of right to speech conferredin clause (a) and right to assemble peacably and without arms inclause (b) is made subject to reasonable restrictions which canbe imposed, inter alia, in the interests of sovereignty and integrityof India or public order. [Para 54-56] [632-D-G; 633-C]

2.3 The right of protestors u/Art. 19(1)(a) and 19(1)(b) andthe rights of the residents u/Art. 21 are to be balanced as boththe rights are fundamental rights. There may be situations whereconflict may arise between two fundamental rights. Situation canbe conflict on inter fundamental rights, intra fundamental rightsand, in certain peculiar circumstances, in respect of some personone fundamental right enjoyed by him may come in conflict withthe other fundamental right guaranteed to him. In all suchsituations, the Court has to examine as to where lies the largerpublic interest while balancing the two conflicting rights. It is theparamount collective interest which would ultimately prevail.[Paras 57-58] [633-E-H]

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A2.4 Right of people to hold peaceful protests anddemonstrations etc. is a fundamental right guaranteed underArticles 19(1)(a) and 19(1)(b). The detailed reasoning given bythe NGT that holding of demonstrations in the way it has beenhappening is causing serious discomfort and harassment to theresidents, is accepted. At the same time, it is also to be kept inBmind that for quite some time Jantar Mantar has been chosen asa place for holding demonstrations and was earmarked by theauthorities as well. The principle of primacy cannot be given toone right whereby the right of the other gets totally extinguished.Total extinction is not balancing. Balancing would mean curtailingCone right of one class to some extent so that the right of theother class is also protected. [Para 61] [639-D-G]

2.5 The pathetic conditions which were caused as a resultof the processions, demonstrations and agitations etc. at theJantar Mantar were primarily because of the reason thatDauthorities did not take necessary measures to regulate the same.Had adequate and sufficient steps were taken by the authoritiesto ensure that such dharnas and demonstrations are held withintheir bounds, it would have balanced the rights of protestors aswell as the residents. For example, the dharnas and protests wereallowed to be stretched almost on the entire Jantar Mantar road,Eon both sides, and even across the width of the road. Instead, aparticular area could have been earmarked for this purpose,sufficiently away from the houses etc. so that there is nounnecessary blockage of roads and pathways. Likewise, thedemonstrators were allowed to go on with non-stop slogans, evenFat odd hours, at night, and that too with the use of loudspeakersetc. The authorities could have ensured that such slogans arewithin the parameters of noise pollution norms and there are noshoutings or slogans at night hours or early morning hours. Again,these dharnas, agitations and processions could be prohibited on certain occasions, for example, whenever some foreignGdignitaries visit and pass through the said area or other suchsensitive occasions. The authorities could also ensure that theprotestors do not bring their trucks/buses etc. and park thosevehicles in and around the residential buildings; the protestorsare not allowed to pitch up their tents and stay for days together;H

they are not allowed to bathe or wash their clothes using DelhiJal Board tankers or defecate in the open, on pavements; and donot create any unhygienic situations. The authorities could alsoexamine, while allowing such demonstration, as to the number ofprotestors who are likely to participate and could refusepermission to hold any such demonstration etc. when the numberis going to be abnormally large which, if allowed, would per secreate hardships of various kinds to the residents. Certaincategories of peaceful protests and demonstrations, in a guardedand regulated manner, could be allowed so as to enable theprotestors to exercise their right and, at the same time, ensuringthat no inconvenience of any kind is caused to the residents.[Para 62] [639-G-H; 640-A-F]

2.6 While discussing the aspect of balancing of two rights,certain relevant factors have to be kept in mind. It needs to benoted is that a portion of Ramlila Maidan has been earmarkedfor such demonstrations etc. Therefore, that space is alreadyavailable. One of the argument raised by the petitioner in thewrit petition and appellants in the appeal is that Ramlila Maidanis far away from that portion of New Delhi area where there is aconcentration of ‘power’ and, therefore, holding protests anddemonstration at a far place in Ramlila Maidan would have noimpact or very little effect. It was stressed that the purpose ofholding such demonstrations and raising slogans is that theyreach concerned persons for whom these are meant. This maybe correct. However, it is also to be borne in mind that in an eraof technology where a concerned voice by a group of persons canreach the right quarters by numerous means. Electronic and printmedia play a pivotal role. Social media and various applicationslike ‘WatsApp’, ‘Twitter’, ‘Instagram’ etc. which take no time inspreading such events. Though holding protests anddemonstrations is an accepted right, at the same time, nobodycan claim that they have a right to hold demonstration at oneparticular area only. While regulating such demonstrations inpublic interest, particular areas can be earmarked. On the otherhand, it is also to be acknowledged that Ramlila Maidan may notbe sufficient to cater to this requirement. Again, this place in oldDelhi is a part of very congested area and it has its own limitations ABC

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Awhen it comes to using this area for such purposes. Therefore,some other area is required. Since, Jantar Mantar was the areachosen by the authorities and has been in use for quite sometime,balancing can be done by permitting a limited part of this area forholding peaceful public meetings, processions etc., at least tosmall groups and, in such a manner, that there is no disturbanceBor inconvenience of any nature whatsoever, insofar as residentsare concerned. [Para 64] [641-B-G]

2.7 The Commissioner of Police, New Delhi in consultationwith other concerned agencies, is directed to devise a propermechanism for limited use of the area for such purposes but toCensure that demonstrations, etc. are regulated in such a mannerthat these do not cause any disturbance to the residents of JantarMantar road or the offices situated there. Detailed guidelines inthis respect can be formulated. It is also clarified that a provisioncan be made for taking requisite prior permission from the Police DCommissioner (or his delegated authority) for holding suchdemonstration by a particular group and while examining suchproposals the parameters can be laid down which shall be lookedinto in order to decide whether the permission is to be grantedor not. Two months’ time is given to the Commissioner of Police,New Delhi for formulating such guidelines. [Para 65] [641-G-H;E642-A-B]

2.8 As regards, the boat club area to be available fordemonstrations, the respondents highlighted in equal measurethe sensitivity of this area because of its proximity to the ParliamentHouse, North and South Blocks and other Central GovernmentFoffices, including frequent visits of Heads of foreign States andother such factors. The respondents are also justified in pointingout that alarmingly large number of requests for holdingdemonstrations at this place are made. Further, intelligencereports reveal that some of such demonstrations, if allowed, mayGcause serious law and order situation. The respondents are alsocorrect to the extent that this Court has not adopted ‘clear andpresent danger test’, as applied by the US Courts, and instead itis the ‘apprehension of breach of peace test’ which is to be usedin order to decide as to whether a particular demonstration/dharnais to be allowed or not. When orders passed under Section 144H

Cr.P.C. are examined in this context, one may not find foul withsuch orders. These orders do not, on their face, appear to beinfected with any illegality as they prohibit public meetings,assembly of five or more persons, processions, demonstrations,dharnas, etc. ‘without written permission’. Further, such ordersare passed on the basis of intelligence reports which indicatethat ‘unrestricted holding of public meetings’, processions,demonstrations, etc. in the area are likely to cause obstructionto traffic, danger to human safety and disturbance of publictranquility. [Para 66] [642-C-G]

2.9 The reading of these orders would indicate that thereis no absolute prohibition from holding public meetings,processions, demonstrations, etc. Such activities are to berestricted in larger public interest and, therefore, before any groupof persons or person wants to carry out any such processionsand dharnas, it has to take prior written permission. This clearlyimplies that whenever such a request is made, the authority is toexamine the same and take a decision as to whether it shouldallow the proposed demonstration, public meeting etc. or not,keeping in view its likely effect, namely, whether it would causeany obstruction to traffic or danger to human safety or disturbanceto public tranquility etc. If requests made are considered andthen allowed or rejected keeping in view the said considerations,there cannot be any quarrel as to the validity of such an ordermade under Section 144 of the Cr.P.C. That is, however, not theground reality. [Para 68] [643-B-D]

2.10 An order passed under Section 144 Cr.P.C. remainsvalid for a period of sixty days which is the limit prescribed inthat provision. However, just before the expiry of one order,another identical order is passed. Such repeated orders, incontinuum, have created a situation of perpetuity. It is argued onbehalf of the respondents that as there is no change in thesituation, which remains the same insofar as sensitivity of thisarea and specific/peculiar conditions prevailing, such orders inrepetitive form are necessitated. Even if this position is acceptedand proceed on that basis, this would only mean continuousregulation of the proposed public meetings, processions,demonstrations, etc. by not allowing the same in ‘unrestricted’

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Amanner. However, in reality no such activities are allowed at alland, therefore, the situation which is created amounts to ‘banning’these public meetings, demonstrations, dharnas, etc. altogetherrather than ‘regulating’ the same. [Para 69] [643-E-G]

2.11 The Commissioner of Police, New Delhi and otherBofficial respondents can frame proper guidelines for regulatingsuch protests, demonstrations, etc. The orders issued underSection 144 prohibit certain activities in the nature ofdemonstrations etc. ‘without permission’, meaning therebypermission can be granted in certain cases. There can, therefore,be proper guidelines laying down the parameters under whichCpermission can be granted in the Boat Club area. It can be a veryrestrictive and limited use, because of the sensitivities pointedout by the respondents and also keeping in mind that RamlilaMaidan is available and Jantar Mantar Road in a regulatedmanner shall be available as well, in a couple of months. Thus,Dthe proposed guidelines may include the provisions for regulatingthe numbers of persons intending to participate in suchdemonstrations, prescribing the minimum distance from theParliament House, North and South Blocks, Supreme Court,residences of dignitaries etc. within which no such demonstrationswould be allowed; imposing restrictions on certain routes whereEnormally the Prime Minister, Central Ministers, Judges etc passthrough; not permitting any demonstrations when foreigndignitaries are visiting a particular place or pass through theparticular route; not allowing firearms, lathis, spears, swords, etc.to be carried by demonstrators; not allowing them to bring animals For pitch tents or stay overnight; prescribing time limits for suchdemonstrations; and placing restrictions on such demonstrations,etc. during peak traffic hours. Authorities can permit thoseprocessions and demonstrations which are innocuous by theirvery nature. Illustratively, school children carrying out procession to advance some social cause or candle march by peace lovingGgroup of persons against a social evil or tragic incident. Theseare some of the examples given to signify that such demonstrationscan be effectively regulated by adopting various measures insteadof banning them altogether by rejecting every request for suchdemonstrations. [Para 70] [643-H; 644-A-F]H

MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OFINDIA & ANR.

Bano Bee v. Union of India and Anr. Writ Petition(Civil) No. 5000 of 2010; Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746 : [1971] 2SCR 711; Bimal Gurun v. Union of India (2018) SCCOnline SC 233; Anita Thakur v. Government of Jammuand Kashmir (2016) 15 SCC 525; Ramlila MaidanIncident v. Home Secretary, Union of India and Others(2012) 5 SCC 1 : [2012] 4 SCR 971; Babulal Parate v.State of Maharashtra 1961 (3) SCR 423; KameshwarPrasad v. State of Bihar (1962) Supp 3 SCR 369; HimatLal K. Shah v. Commissioner of Police, Ahmedabad(1973) 1 SCC 227 : [1973] 2 SCR 266; SubramanianSwamy v. Union of India, Ministry of Law & Ors. (2016)7 SCC 221 : [2016] 3 SCR 865; Asha Ranjan v. Stateof Bihar and Others (2017) 4 SCC 397 – referred to.

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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 SupremeCourt; Laporte, R. (on the application of) v. ChiefConstable of Gloucesershire [2006] UKHL 55 –referred to.

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Case Law Reference

ACIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1153 of 2017

Under Article 32 of the Constitution of India.

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C. A. Nos. 862, 863, 864 of 2018.

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A. N. S. Nadkarni, ASG, Dr. Shiva Sharma, Rohit Vats, Ms. MonikaSharma, Daya Krishan Sharma, Prashant Bhushan, KLDS Vinober,A. Subba Rao, Riju Raj Jamwal, Ms. Madhusmita Bora, Chirag Joshi,Ghanshyam Joshi, S. S. Shamshery, Rajat Nair, S. Santosh Rebello,Ms. Nividita Nair, Ms. Sneha Tendulkar, Mayur Jai Singh, Mayri Chawla,CMs. Ankhi, Adit Khurana, Ms. Kanu Agarwal, Manan Popli, B. V. BalaramDas, Shadan Farasat, Suhail Rashid Bhat, Yoginder Handoo, NishantKumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. Writ Petition (Civil) No. 1153 of 2017, whichDis filed as public interest litigation under Article 32 of the Constitution ofIndia, challenges the repeated imposition of police order under Section144 of Code of Criminal Procedure (hereinafter referred to as the“Cr.P.C.”), whereby ban is imposed by the Assistant Commissioner ofPolice, Sub-Division, Parliament Street, New Delhi District prohibitingthe following activities without written permission in the areas known asEParliament House, North and South Block, Central Vista Lawns togetherwith its surrounding localities and areas:- “i) The holding of any public meeting;

ii) Assembly of five or more persons;

Fiii) 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;

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vii) Picketing or dharnas in any public place within the areaspecified in the Schedule and site plan appended to this order”

2. It is the grievance of the petitioner that though a particularorder passed under Section 144 of the Cr.P.C. remains in force for aperiod of 60 days, simultaneously on the expiry of the said period ofH

60 days another order of identical nature is passed thereby banning theholding of public meetings, peaceful assembly and peacefuldemonstrations by the public at large. This, according to the petitioner,is the arbitrary exercise of power which infringes the fundamental rightof peaceful assembly guaranteed under Article 19(1)(b) of theConstitution of India. It is stated that by these orders virtually the entireCentral Delhi area is declared a prohibited area for holding public meetingsand dharnas or peaceful protests. The petitioner has, thus, sought a writof certiorari seeking quashing of these orders passed under Section 144of the Cr.P.C. and has also prayed for issuance of writ of mandamus orany other direction laying down the guidelines for holding public meetings,dharnas, etc. To be precise, the prayers made in the writ petition are ofthe following nature:

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

(a) Issue a writ of certiorari or any other direction to quash theorders 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 earlieror subsequent to these dates by the Delhi Police vide which theentire Central Delhi/New Delhi has been declared as a prohibitedarea;

(c) Declare that imposing a blanket ban on all assemblies in CentralDelhi/New Delhi area as illegal; (d) Declare that repeated promulgation of prohibitory orders underSection 144 of Code of Criminal Procedure as illegal; and (f) Pass any other or further appropriate writs, orders, or directionsas this Hon’ble Court may deem fit and proper in the interests ofjustice.”

CIVIL APPEAL NO. 862 OF 2018

3. Civil Appeal No. 862 of 2018, on the other hand, has laidchallenge to the judgment and order passed by the National GreenTribunal, Principal Bench, New Delhi (hereinafter referred to as the“NGT”) in Original Application No. 63 of 2016. This Original Applicationwas filed by Respondent Nos. 1 to 7, who are the residents of JantarMantar Road. In the said Original Application they had stated that on A

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AJantar Mantar road, particularly the stretch between the Ashoka roadand Parliament street, there are residential houses where people areliving for number of decades by now. This stretch on Jantar Mantarroad, falling between the intersection on Ashoka Road and Parliamentstreet, has been earmarked as residential area even under the MasterPlat, 2021. the said road, houses not only residences of members ofBParliament but also State Guest house of Kerala, office of Delhi MetroCorporation and offices of political parties. The grievances were thatJantar Mantar has become a ground for organizing protest by variouscategories of groups, political and non-political. Such protests are nottemporary or transient. The protestors have rather put up tents and otherCarrangements where people have been staying for many months. Someof the structures have been on the site for past several years. It wasalso averred that the manner in which the demonstrations are held andthe area occupied by the protesters are causing noise pollution and airpollution, thereby causing insurmountable and untold miseries to theresidents and causing adverse health effect on the residents and theirDchildren.

4. The prayer made in the Original Application was to passappropriate orders directing the Police Commissioner and othergovernment authorities (who were arrayed as respondents) to disallowthe protestors of Jantar Mantar Road stretch between Ashoka RoadEand Parliament Street or prevent them from using loudspeaker or publicannouncement system. The NGT after hearing the matter has renderedits judgment on 5[th] October, 2017, allowing the Original Application ofRespondent Nos. 1 to 7 with the issuance of following directions:

“I. The respondent Government of Delhi, New Delhi MunicipalFCorporation and Police Commissioner, Delhi to immediately stopall the activities of dharna, protest, agitations, assembling of people,public speeches, using of loud speakers, etc. at Jantar MantarRoad.

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

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

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

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

VI. The Chairman, New Delhi Municipal Corporation, the PoliceCommissioner, Delhi and Government of NCT of Delhi shall filetheir respective compliance report before the Tribunal within fiveweeks from the date of the judgment.

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

5. Civil Appeal No. 862 of 2018 has questioned the validity of thesaid order on the ground that these directions violate fundamental rightof the appellants enshrined in Article 19(1)(b) of the Constitution to holdpeaceful demonstrations as the appellants are fighting for the welfareand interest of the farmers and holding dharnas at Jantar Mantar forredressal 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 formany 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 redressalfor her grievance she has been continuously sitting on dharna at JantarMantar and with the ban of such dharna by the NGT, her valuablefundamental right is affected.

CIVIL APPEAL NO. 864 OF 2018

7. Civil Appeal No. 864 of 2018 is filed by Indian Ex-ServicemanMovement. This organisation, which is fighting for the rights of the ex-servicemen, had been holding dharnas, assembly, speeches, etc. at JantarMantar, is precluded from raising its voice because of the order passedby the NGT imposing ban on such types of assemblies.

8. The aforesaid introduction in these two cases clearly revealsthe commonality of the issues and legal precepts on the basis of which A

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Athe subject matter of all the cases is to be decided. For this reason, allthe 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 (forshort, “MKSS”). It is claimed that MKSS is a grassroot, unregisteredBpeople’s organisation formed in 1990 with its headquarters in Devdungri,Rajasthan with bank account number 51041231248 in State Bank ofBikaner and Jaipur, Bhim. The MKSS was a crucial part of the movementthat led to the passage of the Right to Information Act in 2005. Theplatform of village based public hearings or “Jan Sunwais” pioneered byCthe MKSS in the mid-1990s became institutionalized in processes of thegovernment 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 themovement demanding the Right to Work, which played an importantrole in ensuring the passage of the National Rural Employment GuaranteeAct (NREGA) in 2005 in India. The MKSS operates through communityDsupport for its activities and honorarium for its volunteers. Full timevolunteers receive minimum wages as their honorarium. This comesthrough non-tax deductible donations from individuals that the MKSSreceives.

10. It is pointed out in the petition that the Delhi Police has beenEissuing such prohibitory orders under Section 144 of the Cr.P.C. forseveral 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 issuedfor a maximum period of two months, therefore, the Delhi Police hasadopted the tactic of issuing the same order repeatedly as a result ofFwhich for the last several years, the entire Central Delhi area is a prohibitedarea for the purposes of holding dharnas, peaceful demonstrations, etc.

11. The petitioner has annexed these orders dated 24[th] January,2017, 25[th] March, 2017, 24[th] May, 2017, 23[rd] July, 2017, 22[nd] September,2017 and 31[st] October, 2017 as Annexures P-1 to P-6 respectively. AllGthe orders are identically worded. For the sake of clarity, it would beapposite to reproduce text of one such order dated 25[th] March, 2017,which is as under:

“ O R D E R

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

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

3. And whereas it is necessary to take speedy measures in thisbehalf to prevent danger to human life or safety and disturbanceof public tranquility.

4. Now, therefore, in exercise of the powers conferred upon meby the virtue of Section 144 Cr.P.C., 1973 (No. 2 of 1974) readwith Govt. of India, Ministry of Home Affairs, New Delhi’sNotification No. U-11036/(i) UTL dated 9.9.2010, I, Ved Bhushan,Asstt. Commissioner of Police of Sub-Division Parliament Streetof 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 areaspecified in the Schedule and site plan appended to this order;

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

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ANorth Block, Central Sectt., Church Road upto Gate No. 35 ofRashtrapati Bhawan including MP Flats, North Avenue upto R/ARML (exclusive), Baba Khark Singh Marg upto Gole Dakkhana(exclusive) T/R Ashoka Road T/L Jai Singh Road, excludingSansad Marg/Tolstoy Marg crossing, Sansad Marg upto Registrarof Co-operative Societies, Old Court Building and Jantar MantarBRoad/Tolstoy Marg Crossing, Jantar Mantar Road upto R/A JantarMantar Road and Ashoka Road. A details map of this area isenclosed as Annexure to this order.

6. This order shall come into force with effect from 26.03.2017and shall remain in force for a period of 60 days, i.e., up toC24.05.2017 (both days inclusive) unless withdrawn earlier.

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

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

(Ved Bhushan)Asst. Commissioner of Police,Sub-Division Parliament StreetNew Delhi District”

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12. It is averted that Delhi is the national capital, the centre ofpower and hence aggrieved citizens from all over the country throng theFcity to get their voices heard. Mass protests have been prevalent inDelhi since colonial times in the form of hartals, satyagraha against theBritish rule and later Emergency era protests, kisan agitations, MandalCommission protests, the Jan Lokpal aandolan and the December 2012gang-rape protests, to name a few. Upto the 1980s citizens of this countryGhad unrestricted rights to hold dharnas, protests and agitations in theBoat Club lawns near India Gate along the Rajpath road. After theMahendra Singh Tikait agitation, protests at Boat Club lawns wererestricted. In fact the unrestricted right to protest was severely curtailedand the entire Central Delhi, which is close to the establishment offices,has been turned into a fortress and the fundamental rights of the citizens H

are completely denied thereby. However from 1993 till recently, theonly 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 werechallenged by a Bhopal Gas Pidit Mahaila Stationary Karamchari Sanghmember in 2010 before the Delhi High Court, who had come along withother activists to Delhi to raise a protest because of the failure of theGovernment of India to set up an empowered commission to look intothe problems of the victims of toxic gases leak from the plant of theUnion Carbide in 1984 but the same protests were being rendered unfruitfulbecause of the orders of the Delhi Police continuously imposingrestrictions on the right to protest in Central Delhi. The High Court on31[st] May, 2011, disposed of the petition when the Delhi Police filed anaffidavit stating that the continuous prohibition under Section 144 of theCr.P.C. under the jurisdiction of the New Delhi District declaring certainareas as prohibited area for holding any public meeting, dharna, peacefulprotest, etc. has been discontinued. Despite this, the practice of repeatedimposition of orders under Section 144 continues, severely restrictingthe citizens’ fundamental right to protest and peaceful assembly.

14. The petitioner also states that the Delhi Police has evenadvertised for protesters to use Jantar Mantar as the site of protest.However, on 5[th] October, 2017, the NGT has entirely banned protests atJantar Mantar on the grounds that it creates a nuisance for the residentsof the area and violates environment protection statutes. This order is,however, in complete violation of a citizen’s fundamental right to peacefulassembly. With the NGT order banning protests at Jantar Mantar, it isevident that distancing a protest site from where it is most visible to thegovernment and concerned authorities, will have the effect of dilutingthe impact that the protest seeks to gain. Jantar Mantar has been thesite for peaceful protests since 1993 and by the nature of the stretch ofroad, it is an easily managed and contained space. It gave poor protestersa chance to get food from the gurudwara nearby and gave them a senseof greater visibility, considering the proximity of the venue to theParliament. With the shifting of the protest site to Ramlila Maidan, thereis a fear that this will further distance protesters from a site where theyhad greater visibility and is hence an unreasonable restriction on thefreedom to protest and right to peaceful assembly. Besides the cost of A

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Ausing Ramlila Maidan for protests is Rs. 50,000/- per day which wouldmake protests at the site practically impossible for the common citizen.

15. Mr. Prashant Bhushan, learned counsel arguing in support ofthe prayers made in this petition, referred to certain relevant provisionsof the Cr.P.C. including Section 144 thereof and also that of Delhi PoliceBAct, 1978. He submitted that holding peaceful demonstration by peoplein order to air grievances and to see that their voice is heard in therelevant quarters, is the right of the people. Such a right can be traced tothe fundamental system guaranteed under Articles 19(1)(a) and 19(1)(b)of the Constitution. Article 19(1)(b) specifically confers a right to assemblyand, thus, guarantees that all citizens have right to assemble peacefullyCand without arms. He submitted that by various pronouncements, thisCourt as well as High Courts have upheld this fundamental right of thecitizens, i.e., right to protest and assemble peacefully without arms is adistinguishing feature of any democracy and it is this feature that providesspace for legitimate dissent. It encompasses the right to expressDgrievances through direct action or peaceful protest. Organized non-violent protest marches were a key weapon in the struggle forindependence and the right to peaceful protest is now recognised as afundamental right in the Constitution. He accepted that while on the onehand, citizens are guaranteed fundamental right of speech and the rightto assemble for the purpose of carrying peaceful protest/processions, onEthe other hand, reasonable restrictions on such rights can be placed bylaw. Provisions of the Indian Penal code (for short, ‘IPC’) and Cr.P.C.are in the nature of such reasonable restrictions, which are statutoryprovisions giving powers to the State to ensure that such publicassemblies, protests, dharnas or marches are peaceful and they do not Fbecome unlawful. However, his submission was that while exercisingsuch powers the authorities are supposed to act within the limits of lawand cannot indulge in excesses in what can be seen as another bid tostifle and impose unreasonable restrictions on the right to peacefulassembly.

G16. The submission of Mr. Prashant Bhushan was that havingregard to the aforesaid constitutional position, provision of Section 144of the Cr.P.C. could be used only in emergent situation when there issufficient ground for proceeding under that Section and there is need forimmediate prevention or speedy remedy is desirable. In this behalf, hedrew sustenance from the order dated 31[st] May, 2011 of Delhi HighH

Court in the case of Bano Bee v. Union of India and Anr.[1]whereinsimilar type of blanket ban on all assemblies in Central Delhi/New Delhiby repeated promulgation of prohibitory order under Section 144 of theCr.P.C. was deprecated. He referred to the following discussion in thesaid judgment:

“5. Ordinarily we would have dealt with the law laid down inHimmat Lal K. Shah Case (supra) and another decision renderedin Babulal Parate v. The State of Maharashtra and Ors. (AIR1961 SC 884) by the Constitution Bench, but we have come acrossa decision in Acharya Jagdishwaranand Avadhuta v. Commissionerof Police, Calcutta and another, (AIR 1984 SC 51) wherein it hasbeen held as follows:

“The other aspect, viz., the propriety of repetitive prohibitoryorders is, however, to our mind a serious matter and since longarguments have been advanced, we propose to deal with it. Inthis case as a fact from October 1979 till 1982 at the intervalof almost two months orders under Section 144(1) of the Codehave been made from time to time. It is not disputed before usthat the power conferred under this section is intended forimmediate prevention of breach of peace or speedy remedy.An order made under this section is to remain valid for twomonths from the date of its making as provided in sub-section(4) of Section 144. The proviso to sub-section (4) authorisesthe State Government in case it considers it necessary so to dofor preventing danger to human life, health or safety, or forpreventing a riot or any affray, to direct by notification that anorder made by a Magistrate may remain in force for a furtherperiod not exceeding six months from the date on which theorder made by the Magistrate would have, but for such order,expired. The effect of the proviso, therefore, is that the StateGovernment would be entitled to give the prohibitory order anadditional term of life but that would be limited to six monthsbeyond the two months’ period in terms of sub-section (4) ofSection 144 of the Code. Several decisions of different HighCourts have rightly taken the view that it is not legitimate to goon making successive orders after earlier orders have lapsedby efflux of time. A Full Bench consisting of the entire Court 1 Writ Petition (Civil) No. 5000 of 2010

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of 12 Judges in Gopi Mohun Mullick v. Taramoni Chowdhraniexamining the provisions of Section 518 of the Code of 1861(corresponding to present Section 144) took the view that suchan action was beyond the Magistrate’s powers. Making ofsuccessive orders was disapproved by the Division Bench ofthe Calcutta High Court in Bishessur Chuckerbutty v. Emperor.Similar view was taken in Swaminatha Mudaliar v.Gopalakrishna Naidu, Taturam Sahu v. State of Orissa, RamDas Gaur v. City Magistrate, Varanasi, and Ram Narain Sahv. Parmeshar Prasad Sah. We have no doubt that the ratio ofthese decisions represents a correct statement of the legalposition. The proviso to sub-section (4) of Section 144 whichgives the State Government jurisdiction to extend the prohibitoryorder for a maximum period of six months beyond the life ofthe order made by the Magistrate is clearly indicative of theposition that Parliament never intended the life of an orderunder Section 144 of the Code to remain in force beyond twomonths when made by a Magistrate. The scheme of thatsection does not contemplate repetitive orders and in case thesituation so warrants steps have to be taken under otherprovisions of the law such as Section 107 or Section 145 of theCode when individual disputes are raised and to meet a situationsuch as here, there are provisions to be found in the PoliceAct. If repetitive orders are made it would clearly amount toabuse of the power conferred by Section 144 of the Code. It isrelevant to advert to the decision of this Court in Babulal Paratev. State of Maharashtra where the vires of Section 144 of theCode was challenged. Upholding the provision, this Courtobserved:

“Public order has to be maintained in advance in order to ensureit and, therefore, it is competent to a legislature to pass a lawpermitting an appropriate authority to take anticipatory actionor place anticipatory restrictions upon particular kinds of actsin 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 bysuch an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action donein the discharge of the duty to maintain order....”

This Court had, therefore, appropriately stressed upon thefeature that the provision of Section 144 of the Code wasintended to meet an emergency. This postulates a situationtemporary in character and, therefore, the duration of an orderunder 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 noteof the fact that continuous prohibition under Section 144 of Cr.P.C. underjurisdiction of New Delhi District had been discontinued and a statementwas also made by the respondents that this provision would not be invokedas and when unwarranted except in emergent situation. Contrary to theaforesaid stand taken by the respondents in the said case, submitted Mr.Bhushan, the respondents had started adopting the same tactics of issuingrepeated orders under Section 144, Cr.P.C. This practice, according tothe learned counsel, was anathema in a democratic set up where peoplehave been guaranteed freedom of speech and freedom of assembly tovent out their grievance. He submitted that it was a valuable right whichwas given to the citizenry to let off their esteem and if that right ofpeaceful demonstration is not allowed, it may take a violent turn.

18. Mr. Bhushan, learned counsel, referred to various judgmentswhere such a right is recognised as fundamental right.

19. He also referred to certain other judgments[2] to buttress hissubmission that the powers under Section 144 of Cr.P.C. are intended tobe 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 peacefulassembly and the right to protest. In support of his submission that sucha right had been recognised world over in all democratic countriesgoverned by rule of law, he referred to international conventions likeUniversal Declaration of Human Rights, International Covenant on Civiland Political Right and Convention on the Rights of the Child. He alsorelied upon the Guidelines on Freedom of Peaceful Assembly, issued byOrganisation for Security and Co-operation in Europe (OSCE) 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

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ACouncil of Europe’s Commission for Democracy through Law (VeniceCommission). In addition, Mr. Prashant Bhushan also referred toliterature contained in United Nations Human Rights Council SpecialRapporteur Reports on the rights to freedom of peaceful assembly andof association. Some of the judgments[3] rendered by U.S. Supreme Courtand U.K. Courts were also cited by Mr. Prashant Bhushan.B

21. While concluding his submissions, Mr. Bhushan argued thatthe Boat Club area in New Delhi/Central Delhi had also been treated asmost suitable place for holding peaceful demonstrations. According tohim, it was no solution earmarking the area for demonstration in RamlilaMaidan. It was not a suitable alternative and no solution inasmuch as itCwas far away from the Central Delhi where offices of the CentralGovernment were located. The very purpose of demonstration is toensure that voice of demonstrators is heard by the decision makers sothat it has adequate impact. If the demonstrators like the petitioners aredriven to far away place in Ramlila Maidan in Old Delhi, the very purposeDof peaceful demonstration would be rendered meaningless which wouldclearly 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 alsosubmitted that the impugned orders were based on the assumption thatwhenever there is a demonstration or dharna in New Delhi area, it wouldElead to violence which was an uncalled for assumption. His plea wasthat if any particular group has such antecedents of becoming violent,such group can always be prevented from holding demonstrations. Forthis purpose respondents can always have vigilance inputs. However,there is no reason or rationale in putting a general and complete ban on Fpeaceful demonstrations.

22. M/s. Tushar Mehta and A.N.S. Nadkarni, learned AdditionalSolicitor Generals, made a strong refutation to the aforesaid argumentsof the petitioner. Laying much stress on the sensitive character of thearea in question, to justify the issuance of orders passed under SectionG144 of the Cr.P.C., they made a fervent plea to uphold these orders.Referring to certain passages from Babulal Parate[2], it was submittedthat ‘clear and present danger’ test which was applied by US Courts in 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;H [2006] UKHL 55

such cases was not applicable in the Indian context and the correct testas applied by this Court was that of ‘apprehension of breach of peace’test. Specific reliance was placed on the following paragraphs fromBabulal Parate[2 .]

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

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19. It is contended that Section 144 of the Code of CriminalProcedure confers very wide powers upon certain Magistratesand that in exercise of those powers the Magistrates can placevery severe restrictions upon the rights of citizens to freedom ofspeech and expression and to assemble peaceably and withoutarms.

20. It seems to us, however, that wide though the power appearsto be, it can be exercised only in an emergency and for the purposeof preventing obstruction, annoyance or injury to any personlawfully employed, or danger to human life, health or safety, or adisturbance of the public tranquility or a riot, or “an affray”. Thesefactors condition the exercise of the power and it wouldconsequently be wrong to regard that power as being unlimited oruntrammelled. Further, it should be borne in mind that no one hasa right to cause “obstruction, annoyance or injury etc”. to anyone.Since the judgment has to be of a Magistrate as to whether in theparticular circumstances of a case an order, in exercise of thesepowers, should be made or not, we are entitled to assume that thepowers will be exercised legitimately and honestly. The sectioncannot be struck down on the ground that the Magistrate maypossibly abuse his powers.

21. It is also true that initially it is the Magistrate concerned whohas to form an opinion as to the necessity of making an order. Thequestion, therefore, is whether the conferral of such a wide power A

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amounts to an infringement of the rights guaranteed under Article19(1)(a) and (b) of the Constitution. The rights guaranteed bysub-clause (a) are not absolute rights but are subject to limitationsspecified in clause (2) of Article 19 which runs thus:

“Nothing in sub-clause (a) of clause (1) shall affect theoperation of any existing law, or prevent the State from makingany law, insofar as such law imposes reasonable restrictionson the exercise of the right conferred by the said sub-clause inthe interests of security of the State, friendly relations withforeign States, public order, decency or morality, or in relationto contempt of court, defamation or incitement to an offence.”

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

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

“The Code of Criminal Procedure was an existing law at thecommencement of the Constitution and so, in the context ofthe grounds on which its validity is challenged before us, whatwe have to ascertain is whether the conferral thereunder of apower on a Magistrate to place restrictions on the rights towhich sub-clauses (a) and (b) of Article 19 relate is reasonable.It must be borne in mind that the provisions of Section 144 areattracted only in an emergency. Thereunder, the initial Judgeof the emergency is, no doubt, the District Magistrate or theChief Presidency Magistrate or the Sub-Divisional Magistrateor any other Magistrate specially empowered by the StateGovernment. But then, the maintenance of law and order beingthe duty and function of the executive department of the Stateit is inevitable that the question of formation of the opinion asto whether there is an emergency or not must necessarily rest,in the first instance, with those persons through whom theexecutive exercises its functions and discharges its duties. It

would be impracticable and even impossible to expect the StateGovernment itself to exercise those duties and functions ineach and every case. The provisions of the section thereforewhich commit the power in this regard to a Magistratebelonging to any of the classes referred to therein cannot beregarded as unreasonable. We may also point out that thesatisfaction of the Magistrate as to the necessity of promulgatingan order under Section 144 of the Code of Criminal Procedureis not made entirely subjective by the section. We may alsomention that though in an appropriate case a Magistrate isempowered to make an order under this section ex parte thelaw requires that he should, where possible serve a notice onthe person or persons against whom the order is directed beforepassing that order. Then sub-section (4) provides that anyMagistrate may either on his own motion or on the applicationof any person aggrieved, rescind or alter any order made underthis section. This clearly shows that even where an ex parteorder is made the person or persons affected thereby have aright to challenge the order of the Magistrate. Sub-section (5)provides that where such a challenge is made, the Magistrateshall give an early opportunity to the person concerned ofappearing before him and showing cause against the order.The decision of the Magistrate in such a proceeding wouldundoubtedly be a judicial one inasmuch as it will have beenarrived at after hearing the party affected by the order. Sincethe proceeding before the Magistrate would be a judicial one,he will have to set aside the order unless he comes to theconclusion that the grounds on which it rests are in lawsufficient to warrant it. Further, since the propriety of the orderis open to challenge it cannot be said that by reason of thewide amplitude of the power which Section 144 confers oncertain Magistrates it places unreasonable restrictions oncertain fundamental rights.

23. The argument that the test of determining criminality inadvance is unreasonable, is apparently founded upon the doctrineadumbrated in Scheneck case [Scheneck v. U.S., 249, US 47]that previous restraints on the exercise of fundamental rights arepermissible only if there be a clear and present danger. It seems

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to us, however, that the American doctrine cannot be importedunder our Constitution because the fundamental rights guaranteedunder 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 ofArticle 19. There is nothing in the American Constitutioncorresponding 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 lawwhich shall abridge the privileges or immunities of citizens of theUnited 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 ofthe Constitution of the United States. Then again, the SupremeCourt of the United States has held that the privileges andimmunities conferred by the Constitution are subject to socialcontrol by resort to the doctrine of police power. It is in the light ofthis background that the test laid down in Scheneckcase [Scheneck v. U.S., 249, US 47] has to be understood.

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

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

“It well may be that the prohibition of law abridging the freedomof speech is not confined to previous restraints, although to preventthem may have been the main purpose…. We admit that in manyplaces and in ordinary times the defendants, in saying all that wassaid in the circular, would have been within their constitutionalrights. But the character of every act depends upon thecircumstances in which it is done.… The most stringent protectionof free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a manfrom an injunction against uttering words that may have all theeffect of force…. The question in every case is whether the wordsused are used in such circumstances and are of such a nature asto create a clear and present danger that they will bring about thesubstantive evils that Congress has a right to prevent. It is aquestion of proximity and degree.”

27. Whatever may be the position in the United States it seems tous clear that anticipatory action of the kind permissible underSection 144 is not impermissible under clauses (2) and (3) of Article19. Both in clause (2) (as amended in 1951) and in clause (3),power is given to the legislature to make laws placing reasonablerestrictions on the exercise of the rights conferred by these clausesin the interest, among other things, of public order. Public orderhas to be maintained in advance in order to ensure it and, therefore,it is competent to a legislature to pass a law permitting anappropriate authority to take anticipatory action or placeanticipatory restrictions upon particular kinds of acts in anemergency 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 andorder is cast upon the Magistrate, he must perform that duty andnot shirk it by prohibiting or restricting the normal activities of thecitizen. But it is difficult to say that an anticipatory action taken bysuch an authority in an emergency where danger to public orderis genuinely apprehended is anything other than an action done inthe discharge of the duty to maintain order. In such circumstancesthat could be the only mode of discharging the duty. We, therefore,reject the contention that Section 144 substitutes suppression oflawful activity or right for the duty of public authorities to maintainorder.

29. Coming to the order itself we must consider certain objectionsof Mr Mani which are, in effect, that there are three features inthe order which make it unconstitutional. In the first place, accordingto him the order is directed against the entire public though theMagistrate has stated clearly that it was promulgated because ofthe serious turn which an industrial dispute had taken. Mr Mani A

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Acontends that it is unreasonable to place restrictions on themovements of the public in general when there is nothing to suggestthat members of the public were likely to indulge in activitiesprejudicial to public order. It is true that there is no suggestion thatthe general public was involved in the industrial dispute. It is alsotrue that by operation of the order the movements of the membersBof the public would be restricted in particular areas. But it seemsto us that it would be extremely difficult for those who are incharge of law and order to differentiate between members of thepublic and members of the two textile unions and, therefore, theonly practical way in which the particular activities referred to inCthe order could be restrained or restricted would be by makingthose restrictions applicable to the public generally.”

23. It was, thus, argued that mere apprehension of breach of peacewas sufficient to prohibit any demonstration or dharna etc. It was alsosubmitted that Section 144 of the Cr.P.C. permitted anticipatory actionDand, thus, even on anticipation that a particular demonstration may leadto breach of peace, was sufficient to invoke the provisions of Section144 Cr.P.C. and pass appropriate prohibitory orders. It was argued thatthe impugned orders passed should be examined keeping in view theaforesaid principles of law and these orders were passed by theCompetent Authority specifying that such demonstrations etc. were likelyEto cause obstruction to traffic and danger to human safety anddisturbances of public tranquility which was specifically stated in para 2of the orders reading as under:

“And whereas reports have been received indicating that suchconditions now exist that unrestricted holding of public meetings,Fprocessions/demonstrations etc. in the area are likely to causeobstruction to traffic, danger to human safety and disturbance ofpublic tranquility.”

24. It was argued that there was due application of mind by theAssistant Commissioner of Police who had gone through the reportsGand drew to a conclusion therefrom that unrestricted holding of publicmeetings, processions/demonstrations was likely to cause problems likeobstructions to traffic, danger to human safety and disturbances of publictranquility. The Assistant Commissioner of Police, thus, satisfied therequirement of Section 144 of Cr.P.C. It was also argued that there was H

no complete ban imposed on such public meetings etc. and the ordersprohibited 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 beconsidered on case to case basis.

25. The learned ASGs laid great emphasis on the fact that NewDelhi was the capital city and entire activity of Central Government wasmainly located in Central Delhi area which was covered by the prohibitoryorders passed, namely, Parliament House, North and South Block, CentralVista Lawns and its surrounding localities and areas. It was alsoemphasised that there were official visits by foreign dignitaries to thiscapital city on a regular basis and any untoward incident as aconsequence of such public meetings, processions, demonstrations,dharnas, etc had potentials of damaging the reputation of the countryitself. The learned counsel went to the extent of arguing that there hadbeen instances where, in the past, on the visit of particular Heads of theForeign States, attempts were made to hold demonstrations against suchpersons and their visits, which was not conducive for maintaining healthybilateral relations between the two countries. The submission in theaforesaid context was that the area covered by prohibitory orders wassensitive area and such demonstrations as well as public meetings etc.could not be allowed in a routine manner. It was also submitted thatDelhi being capital of the country, there was a tendency on the part oforganizations located throughout the country to come to Delhi and holdpublic meetings, processions, demonstrations, etc. Please was that ifsuch requests are acceded to then there would be n[th] number of thesepublic meetings, processions/ demonstrations everyday in Central Delhiwhich would jeopardise the normal functioning in the Parliament(whenever it is in session) as well as that of the Central Governmentoffices located in North and South Block.

26. The respondents, for the perusal of the Court, produced therecord 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 reportswere also produced for the perusal of the Court to support the plea thatorders passed by the Assistant Commissioner of Police under Section144 Cr.P.C., were backed by sufficient material depicting due applicationof mind.

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A27. The learned ASGs also referred to the annexure annexedwith the counter affidavit filed on behalf of the respondents to this writpetition. Annexure R-1 gives details of cases of riots registered underSection 186/353, IPC against protest through demonstration for the periodfrom March, 2015 to 5[th] April, 2018, which shows that most of thetime such protest/demonstrations were turning violent leading toBcommission of crimes under the aforesaid provisions of the IPC. AnnexureR-2 gives details of persons who were detained under Section 65 of theDelhi Police Act while holding protest/demonstrations during the saidperiod.

28. It was, thus, submitted that no doubt the petitioner had a rightCto hold dharnas, protests, marches, demonstrations or public meetingsetc. which was their fundamental right. However, such a right was notuntrammeled 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

Dreasonable restrictions. Nevertheless, at the same time, in order to ensurethat petitioner and others are able to exercise their right of demonstration,etc., the area in Ramlila Maidan was specifically earmarked for suchpurposes. It was, thus, argued that promulgation of Section 144 Cr.P.C.was not only a matter of necessity to prevent the breach of publictranquility, riot, affray, but was also in public interest and public safety.ESuch an order was said to be legally justified on the test of principles laiddown in Madhu Limaye v. Sub-Divisional Magistrate[4], where theCourt held as under:

“24..…………….There is no general proposition that an orderunder Section 144, Criminal Procedure Code cannot be passedFwithout taking evidence: see Mst Jagrupa Kumari v. ChobeyNarain Singh [37 Cr LJ 95] which in our opinion is correct inlaying down this proposition. These fundamental facts emergefrom the way the occasions for the exercise of the power arementioned. Disturbances of public tranquility, riots and affray leadGto subversion of public order unless they are prevented in time.Nuisances dangerous to human life, health or safety have no doubtto be abated and prevented. We are, however, not concernedwith this part of the section and the validity of this part need not 4 (1970) 3 SCC 746H

be decided here. In so far as the other parts of the section areconcerned the key-note of the power is to free society frommenace of serious disturbances of a grave character. The sectionis directed against those who attempt to prevent the exercise oflegal rights by others or imperil the public safety and health. Ifthat be so the matter must fall within the restrictions which theConstitution itself visualizes as permissible in the interest of publicorder, or in the interest of the general public. We may say, however,that annoyance must assume sufficiently grave proportions to bringthe matter within interests of public order.”

29. Reference was also made to the following passage from thejudgment of this court in Bimal Gurun v. Union of India[5], wherein itwas held as under:

“Demonstrations whether political, religious or social or otherdemonstrations which create public, disturbances or operate asnuisances, or create or manifestly threaten some tangible publicor private mischief, are not covered by protection under Article19(1). A demonstration might take the form of an assembly andeven then the intention is to convey to the person or authority towhom the communication is intended the feelings of the groupwhich assembles. From the very nature of things a demonstrationmay take various forms; “it may be noisy and disorderly”, forinstance stone-throwing by a crowd may be cited as an exampleof a violent and disorderly demonstration and this would notobviously be within Article 19(1)(a) or (b).”

30. Submission was sought to be buttressed by reading the followingextracts from the judgment in the case of Anita Thakur v. Governmentof Jammu and Kashmir[6], where this Court noticed that more oftenthan not, such protesters take to hooliganism, vandism and even destroypublic/private property:

“Before adverting to the issue at hand, we would like to makesome general remarks about the manner in which thesedemonstrations are taking shape. Recent happenings show anunfortunate trend where such demonstrations and protests are onincrease. There are all kinds of protests: on social issues, on political 5 (2018) SCC Online SC 233

6 (2016) 15 SCC 525

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issues and on demands of various sections of the society of variedkinds. It is also becoming a common ground that religious, ethnic,regional language, caste and class divisions are frequently exploitedto foment violence whenever mass demonstrations or dharnas,etc. take place. It is unfortunate that more often than not, suchprotesters take to hooliganism, vandalism and even destroy public/private property. In the process, when police tries to control, theprotesters/mob violently target policemen as well. Unruly groupsand violent demonstrations are so common that people have cometo see them as an appendage of Indian democracy. All thesesituations frequently result in police using force. This in turnexacerbates public anger against the police. In Kashmir itself therehave been numerous instances where separatist groups haveprovoked violence. In this scenario, task of the police and law-enforcing agencies becomes more difficult and delicate. In curbingsuch violence or dispersing unlawful assemblies, police has toaccomplish its task with utmost care, deftness and precision. Thus,on the one hand, law and order needs to be restored and at thesame time, it is also to be ensured that unnecessary force or theforce beyond what is absolutely essential is not used. Policemenare required to undergo special training to deal with these situations.Many times the situations turn ugly or go out of control becauseof lack of sufficient training to the police personnel to deal withviolence and challenges to their authority. There are variousdocuments in the form of police manual and even internationalcovenants proscribing use of unnecessary force and mandatingthat force should only be used when it is absolutely necessary.Even when used, it should be minimum and proportional to thesituation and its use to be discontinued as soon as the danger tolife and property subsides.

37. From the above, it is clear that Article 19(1)(a) and (b) givesConstitutional right to all citizens freedom of speech and expressionwhich includes carrying out public demonstration also but publicdemonstration also but public demonstration when becomes violentand damages the public and private properties and harm lives ofpeople 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 wasvindicated by the judgment dated 5[th] October, 2017 passed by NGT inOriginal Application No. 63 of 2016 (Varun Seth and Others v. PoliceCommissioner, Delhi Police) wherein the NGT judicially recognisedthat processions, demonstrations and agitations etc. had become regularfeature, which was noted by the NGT.

32. Before we proceed to consider the respective submissionsadvanced by counsel for the parties on either side and take a calltherefrom, it would be advisable to take note of the discussion containedin the judgment dated 5[th] October, 2017 of NGT in Varun Seth’s case inthe context of Jantar Mantar area. The scope of discussion in the saidjudgment, though subject matter of challenge in civil appeals, would givemore comprehensive picture of the ground realities.

33. The subject matter of the said judgment is confined to thedemonstrations etc. at Jantar Mantar Road, particularly the stretchbetween the Ashoka Road and the Parliament Street. It is also relevantto note that the Original Application before the NGT was filed by theresidents who have their residential houses on the aforesaid stretch asthe area in question has been earmarked as residential area even underthe Master Plan, 2021. That apart, there are residences of Members ofParliament as also State Guest House of Kerala, Office of Delhi MetroCorporation and offices of some of the political parties on the said road.

34. The NGT noticed that Jantar Mantar Road has become aground for raising protest by various category of groups, political andnon-political. Such protests are not temporary or transient. The protestorshave rather put up tents and other arrangements where people havebeen staying for many months. Some of the structures have been on theside of the street. The organizers of these protests make arrangementfor food, lodging, etc. on such makeshift structures. They have alsoaffixed loud speakers at various places in the area. NDMC has providedthe facility of sanitation and cleaning by making provision for only twomobile toilets. The photographs attached to the application clearly depictthe plight of the poor residents, some of them being senior citizens, whohad been protesting against unhygienic conditions, litters, crowds, noisepollution, etc. for last couple of years. Apart from it, the personnel ofpolice/paramilitary force at the said stretch of road, which on some daysof protest go up to around 200 to 400, also adds to the congestion in thearea. The sanitation facility provided in such a situation is grossly ABC

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Ainadequate which results in smell emanating from the mobile vans andnearby areas creating unhygienic conditions and low aesthetic value forthe residents and others visiting the area. Moreover, some protestorsunder the garb of cow protection have brought in cows to the said stretchof road and kept them for nearly sixteen months. Even a bullock carthad been kept at the site by the protestors.B

35. During the course of heavy protest day, the police completelyblocks the road of Jantar Mantar by barricading which coerces theresidents of the area to park their vehicles elsewhere and make way totheir residences on foot. This becomes extremely difficult for seniorcitizens and small children. In fact, there had been instances of medicalCemergencies where police had to plough the ambulance through thevehicles of the protestors, the police and the crowd. The presence oflarge number of people as well as vehicles in the area causes trafficjams.

36. The protestors continuously play drums, music, microphones,Detc. which disturb the peace and tranquility of the place. The noiseemanating from the said area on account of aforesaid loudspeakers, etc.definitely generates noise which exceeds the permissible limit. Underthe Noise Pollution (Regulation and Control) Rules, 2000 and the schedulegiven therewith the ambient air quality standards in respect of the noisefor a residential area is 55 db (A) leq during the day time and 45 db (A)Eleq in the night.37. The NGT noted the adverse affect of such dharnas andprotests at Jantar Mantar Road in the following manner:

“35. But Jantar Mantar and its surrounding areas, once knownfor its history, has now become a battle ground for protestors andFagitators. The area has become a permanent place for filth andlitter indulged in by the protestors. The other civic authoritiessuch as NDMC and the Police authorities have also miserablyfailed to maintain cleanliness in and around Jantar Mantar. Theyhave further neglected and failed to ensure peaceful andGcomfortable living for the residents of the locality. The petitionershave placed on record a number of photographs [annexure P 1(Colly)] which shows permanent structure erected for deliveringpublic speeches, temporary shelters, tents for living. They havemushroomed in the locality. Vehicles are delivering food, drinks,eatables and the protestors cooking food, washing and drying theirHclothes, etc.

36. Since long, on the stretch of Jantar Mantar road protest/dharnasare being regularly organized (despite there being no legal oradministrative order/permission for designating of place as a protestground). In recent past, the number of protest/dharnas, as wellas that of people constituting them have tremendously increased.The pollution in the area have also increased many folds, on accountof noise, large gathering of people, waste, etc. The noise pollutionhas been increased due to installation of traditional public addresssystem based on the horn loud speakers by protestors. Besides,assembling of large crowds which is at times in thousands, alsocontribute to the noise pollution. Further, the plight of the residentsis compounded by deployment of large number of police and paramilitary personals to control and manage the protestors.

In the result, it not only restricts entry/exit of the residentsfrom their respective residences but also, at times, permits accessto the residents only by foot due to complete stoppage of vehicles.There have been instances where the visitors of the people residingin the area have to park their vehicles at the other end of JantarMantar road due to restrictions imposed by the police. In factthere is absolutely no space left on the road since the protestorsoccupy the same and the police personal monitoring the activityare found to be standing/sitting outside the houses of the residents.

In addition to it, on the entire road there is littering and despiteof the best efforts of NDMC, it cannot be cleared because oflarge crowd gathering in the area and are having food etc. andusing mobile toilets/sanitary services at the site of protest. Thereare protestors who have, in the name of cow protection, beenbringing the cows along with bullock carts on the stretch of JantarMantar road which aggravates the problem, being faced by theresidents since long.

The residents who have to bear the aforesaid problem includestheir children and old aged family members. The constant loudnoises, round the year, from the protest ground seriously disturbthe children even during their examination time. Similarly, theelderly residents have also been diagnosed with noise age relatedproblem. The residents on the stretch of Jantar Mantar road aretotally at the mercy of the protestors.

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37. The processions, demonstrations and agitations by social groups,NGOs, religious groups and political parties had become a regularfeature, so much so, that everyday dharnas, agitations, etc. arebeing held on Jantar Mantar road. Consequently, the lives of thepetitioners and all other residents on Jantar Mantar road is beingpersistently disturbed by the dharnas which are a few thousandsevery year. These dharnas and protests are stretched almost onthe entire Jantar Mantar road, on both sides and even across thewidth of the road. Dharnas on Jantar Mantar road are coupledwith non-stop slogans and it has developed into a place ofinhabitation for the protesters who also carry with them tents andtemporary shelters. It is used as a place for sleeping, to takebath, cook food, etc. by the protesters and they live there formonths together. Above all, the people sitting on dharna, carryingon 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 virtuallybecome hell for the residents of the locality who cannot sleep atnight, face noise pollution during the day, having difficulties iningress and egress to their residencies, much less to say, to taketheir vehicles up to their residences. Many a times, when dharnas, agitations, processions, etc. are on their peak specially duringParliament session, the residents are even prevented or with greatdifficulty they are able to walk down to their residences becausethe Police for the purpose of maintaining law and order putsbarricades and even close the road. Such being the situation ofthe stretch on Jantar Mantar road, great difficulties have beencreated to the children/students residing in that area. The situationis being aggravated day by day and has resulted in health problemsfor the residents as many of them now have high blood pressure,become hart patient and old age persons have now started sufferingfrom chronic ailments. The road starting from Jantar Mantar andleading to Parliament has turned into a place of totally differentnature which is being used for various purposes. The protesterscome there from various parts of the country travelling by trucks,buses, etc., and they park their vehicles in and around the residentialbuildings. In fact, the locality has completely changed where one finds that men, women and children are bathing, washing theirclothes under Delhi Jal Board tankers and the situation becomesworse when the people are seen defecating in the open, onpavements, etc. which creates a totally unhygienic situation onthe entire road.

40. It is relevant to mention here that continuous noise by non-stop slogans and use of loudspeakers by the protestors, for hourstogether, is more than just a nuisance. It constitutes a real andpresent danger to people’s health. Day and night, at home, atwork, and at play, noise can produce serious physical andpsychological stress. No one can be immune to this stress. Thoughwe try to adjust to noise by ignoring it, the ear, in fact, nevercloses 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 noisepollution by quoting various research and field studies. It also referredto various statutory provisions which aim to curb noise pollution and thejudgments of Supreme Court as well as High Courts, including thejudgment in the case of Ramlila Maidan Incident v. Home Secretary,Union of India and Others[7], wherein right to proper sleep has beenconsidered as fundamental right, being a facet of Article 21 of theConstitution. Applying that law to the facts of the case at hand, it cameto conclusion that residents of Jantar Mantar Road are not living a normallife and their difficulties were increasing by the day. Such demonstrationswith loud noise were also causing various kinds of health problems likehearing problem, blood pressure, hypertension and other serious diseasesrelating to heart etc. The NGT found that they were suffering becauseof gross violation of laws, air pollution and health hazard, due to lack ofcleanliness and non-performance of duties by the authorities of the State.All this is endangering their lives. The environmental conditions at JantarMantar Road in relation to noise pollution, cleanliness, management ofwaste and public health had been grossly deteriorated. The situationwas becoming alarming, day by day. On that basis, the NGT found meritin the Original Application filed by the residents.

39. The NGT also noted that earlier the protests/dharnas/agitationswere allowed only at Ramlila Maidan, near Ajmeri Gate in Delhi. Thesaid area was the place where people used to assemble for purposes ofprotest march and processions. It was the point from where the agitators A

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Awere to start for their destinations like Parliament House, office/residenceof the Chief Minister, the Home Minister, etc. etc. Subsequently, thebattle ground for protestors and agitators came to be the Boat Club nearIndia Gate. Later, the Police shifted the place of agitation from BoatClub to Jantar Mantar, apparently for the reason that the said place wascreating obstruction to traffic. It was the department of Police, as is alsoBmentioned in the reply, that fixed this new place for agitations, dharnas,starting of processions, etc. upto a total number of 5000 people and incase of more, the venue would be Ramlila Maidan. Moreover, withpassage of time, the place for agitators/protestors to assemble and starttheir processions had no longer remained at Jantar Mantar but cameCdown to Jantar Mantar road which, as on date, is fully occupied byprotestors, agitators, dharnas, temporary structures/make shifts,demonstrations, slogans, display of various articles and even animalslike cows, buffalo’s, etc. It had so happened mainly because the agitatorsand protestors were to ultimately move towards the Parliament House.But strangely, neither the Police nor NDMC tried to prevent them inDmoving away from Jantar Mantar. Resultantly, the entire Jantar Mantarroad, stretching to its total width, has been covered by the protestors.Above all, when the agitation consisting of thousands and thousands ofpeople assemble on Jantar Mantar road, no one is there to check theirtotal number and in case of the number exceeding five thousand, to sendEthem 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, agitatorsand the people holding dharnas to the alternative site at Ramlila Maidan,Ajmeri Gate, Delhi.

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41. In order to have holistic view of the issue raised in the WritPetition (Civil) No. 1153 of 2017 it becomes necessary to first deal withthe challenge to the aforesaid orders passed by the NGT, as the particularresult of these appeals preferred against that judgment would facilitatethe Court to find out the solution for Boat Club area which is the subjectGmatter of the writ petition. Therefore, we first proceed to examine thevalidity of the judgment dated 5[th] October, 2017, rendered by the NGT.

42. We have already captured the essence of the reasoning onwhich the judgment of the NGT is based upon. The considerationswhich prevailed upon the NGT to pass such an order can be stated, inbullet form. These are :H

• Area in question where the demonstrations were being held is astretch between the Ashoka Road and the Parliament Street.

• The said area is inhabited as there are residential houses. Thearea is marked as “residential area even under Master Plan 2021”.

• Apart from houses of private citizens, there are residences ofMembers of Parliament and also State Guest House of Kerala,Office of Delhi Metro Corporation as well as offices of some ofthe political parties on the said road.

• Holding of protest on the Jantar Mantar road had become aregular feature, where the protests were being held on continuousbasis.

• Such protests are not temporary or transient. Protestors had put up tents and other arrangements where people had been stayingfor months together. Even structures had been put on the side ofthe street, where arrangement for food, lodging etc. were beingmade.

• The protestors had affixed loud speakers at various places inthe area.

• Use of these loud speakers at all times, including odd times andnight hours, was creating noise pollution and this pollution wasgetting worsened with the continuous plays of drums, music andmicrophones etc. This noise pollution was exceeding thepermissible limits laid down in the relevant rules.

• The sanitation facility provided was grossly inadequate, it wasresulting in foul smell emanating from mobile toilet, thereby creatingunhygienic conditions in the area.

• These unhygienic conditions were compounded by the fact thateven cows were brought to the said stretch of road by theprotestors and were kept for months together.

• On a heavy protest day, the police were completely blocking theJantar Mantar road by barricading, as a result, residents of thearea were forced to park, their vehicles elsewhere and make wayto their residences on foot.

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A• It was causing extreme inconvenience to the residents and, inparticular, senior citizens and small children.

• Their had been instances of medical emergencies where policehad to plough the ambulance through the vehicles of the protestors,the police and the crowd.B

• The traffic jams in the area were a common phenomena. Allthe aforesaid factors constituted a real and present danger to thehealth of the residents and also causing serious physical andpsychological stress.

C43. In the appeals filed by the appellants, questioning the validityof this order, the main ground taken is that it is the fundamental right ofthe citizens to hold peaceful demonstrations and protest in order to bringout their grievances to the notice of the authorities in power so that theconcerned authorities are awakened and attend to their grievances aswell as take remedial measures. Therefore, there could not have been aDcomplete ban on demonstrations in the area in question. It was submittedthat Jantar Mantar is the best suited place for holding demonstrationsbecause of its proximity to the power that be. It was also argued that ifthe authorities had not provided appropriate sanitation facilities or it hadfailed to remove the cows etc., such a failure on the part of the authoritiesEcould not be a ground to put a complete ban on the demonstrations.Instead, directions could be given by the NGT to the authorities to takeappropriate measures in this behalf. It was also submitted that a recentstudy undertaken by the AIIMS shows the adverse effect and healthconsequences of community noise pollution is not limited to Jantar Mantarbut extends to the entire Delhi. Therefore, noise pollution could not be aFground to impose such a ban. It was further argued that Ramleelaground, where the protests are now permitted, is far away from theParliament. Moreover, the said area is infested by traffic congestion allaround and, therefore, would cause much more discomfort and hardshipsto not only the protestors but the traffic in that area, which is alsoGsurrounded by hospitals, school, college, hardship places and cricketground.

44. Respondent nos. 1 to 7 supported the impugned order by layingemphasis on the reasons which are given therein. It was submitted that the fundamental right of the protestors to hold demonstrations etc. doesnot extend to causing such discomforts and difficulties to the residentsso as to violate the fundamental right of the residents under Article 21 ofthe Constitution:

45. It is further submitted that though the protestors at JantarMantar road were being allowed to exercise fundamental right to protestby way of loudspeakers, but the said right cannot be provided by theState to curtail the rights of the residents citizens, qua the right not tolisten. The said principle of reasonable restriction on this right is enshrinedin Article 19(2) to (6) of the Constitution of India and the burden ofproof on State to justify reasonability. This has been upheld by the SupremeCourt of India in the case of Ramlila Maidan Incident[7].

46. It is also argued that the Central Government, through MoEF& CC, have notified Noise Pollution (Regulation and Control) Rules on11.02.2000, under Environment (Protection) Act, 1986, whereindifference zones such as industrial, residential, commercial and silencezones have been categorised for the purpose of regulation and control ofnoise producing and generating sources. These rules govern therestriction of the use of loud speaker, public address system, noiseproducing system, etc. Provisions have also been made for ambient airquality standards in respect of noise to control the noise from source.The respondent had also mentioned about the harmful effects resultingfrom noise pollution by the various studies made by World HealthOrganisation and the study undertaken by AIIMS hospital which showsthe 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 ofEnvironmental and Sound Pollution; (2005) 5 SCC 733

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

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

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

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628SUPREME COURT REPORTS

A(v) P.A. Jacob v. The Superintendent of Police, Kottayamand Another; AIR 1993 Kerala 1"

48. We may state at the outset that none of the parties have joinedissue insofar as law on the subject is concerned. Undoubtedly, holdingpeaceful demonstrations by the citizenry in order to air its grievancesBand to ensure that these grievances are heard in the relevant quarters, isits fundamental right. This right is specifically enshrined under Article19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confersa vary valuable right on the citizens, namely, right of free speech.Likewise, Article 19(1)(b) gives right to assemble peacefully and withoutarms. Together, both these rights ensure that the people of this countryChave right to assemble peacefully and protest against any of the actionsor the decisions taken by the Government or other governmentalauthorities which are not to the liking. Legitimate dissent is adistinguishable feature of any democracy. Question is not as to whetherthe issue raised by the protestors is right or wrong or it is justified orDunjustified. The fundamental aspect is the right which is conferred uponthe affected people in a democracy to voice their grievances. Dissentersmay be in minority. They have a right to express their views. A particularcause which, in the first instance, may appear to be insignificant orirrelevant may gain momentum and acceptability when it is duly voicedand debated. That is the reason that this Court has always protected theEvaluable right of peaceful and orderly demonstrations and protests.49. In Babulal Parate v. State of Maharashtra[8], this Courtobserved:

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

50. In Kameshwar Prasad v. State of Bihar[9] the Court wasmainly dealing with the question whether the right to make aGdemonstration is protected under Article 19(1)(a) and (b) and whether agovernment servant is entitled to this right. This Court held :

“A demonstration might take the form of an assembly and eventhen the intention is to convey to the person or authority to whom 8 1961 (3) SCR 423H9 (1962) Supp 3 SCR 369

the communication is intended the feelings of the group whichassembles. It necessarily follows that there are forms ofdemonstration which would fall within the freedoms guaranteedby Art. 19(1)(a) and 19(1)(b). It is needless to add that from thevery nature of things a demonstration may take various forms; itmay be noisy and disorderly, for instance stone-throwing by acrowd may be cited as an example of a violent and disorderlydemonstration and this would not obviously be within Art. 19(1)(a)or (b). It can equally be peaceful and orderly such as happenswhen the members of the group merely wear some badge drawingattention to their grievance.”

51. The Supreme Court has also gone beyond upholding the rightto protest as a fundamental right and has held that the State must aid theright to assembly of the citizens. In the Constitution Bench Judgment,Himat Lal K. Shah v. Commissioner of Police, Ahmedabad[10], whiledealing with the challenge to the Rules framed under the Bombay PoliceAct regulating public meetings on streets, held that the Government haspower to regulate which includes prohibition of public meetings on streetsor highways to avoid nuisance or disruption to traffic and thus, it canprovide a public meeting on roads, but it does not mean that thegovernment 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 abridgeor take away the right of assembly by prohibiting assembly onevery public street or public place. The State can only makeregulations in aid of the right of assembly of each citizen and canonly impose reasonable restrictions in the interest of public order.

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70. Public meeting in open spaces and public streets forms partof the tradition of our national life. In the pre-Independence dayssuch meetings have been held in open space and public streetsand the people have come to regard it as a part of their privilegesand immunities. The State and the local authority have a virtualmonopoly of every open space at which an outdoor meeting canbe held. If, therefore, the State or Municipality can constitutionally AB

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Aclose both its streets and its parks entirely to public meetings, thepractical result would be that it would be impossible to hold anyopen-air meetings in any large city. The real problem is that ofreconciling the city’s function of providing for the exigencies oftraffic in its streets and for the recreation of the public in its parks,with its other obligations, of providing adequate places for publicBdiscussion in order to safeguard the guaranteed right of publicassembly. The assumption made by Justice Holmes is that a cityowns its parks and highways in the same sense and with the samerights as a private owner owns his property with the right to excludeor admit anyone he pleases. That may not accord with the conceptCof dedication of public streets and parks. The parks are held forpublic and the public streets are also held for the public. It isdoubtless true that the State or local authority can regulate itsproperty in order to serve its public purposes. Streets and publicparks exist primarily for other purposes and the social interestpromoted by untrammelled exercise of freedom of utterance andDassembly in public street must yield to social interest whichprohibition and regulation of speech are designed to protect. Butthere is a constitutional difference between reasonable regulationand arbitrary exclusion.”

52. While adjudicating with respect to the validity of police actionEagainst protestors, this Court again reiterated that right to protest was afundamental right guaranteed to the citizens under Article 19. In thecase of Ramlila Maidan Incident (supra), the Court observed thatthe right to assembly and peaceful agitations were basic features of ademocratic system and the Government should encourage exercise ofFthese rights:

“245. Freedom of speech, right to assemble and demonstrate byholding dharnas and peaceful agitations are the basic features ofa democratic system. The people of a democratic country likeours have a right to raise their voice against the decisions andactions of the Government or even to express their resentmentover the actions of the Government on any subject of social ornational importance. The Government has to respect and, in fact,encourage exercise of such rights. It is the abundant duty of theState to aid the exercise of the right to freedom of speech asunderstood in its comprehensive sense and not to throttle or G

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MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OFINDIA & ANR. [A. K. SIKRI, J.]

frustrate exercise of such rights by exercising its executive orlegislative powers and passing orders or taking action in thatdirection in the name of reasonable restrictions. The preventivesteps should be founded on actual and prominent threatendangering public order and tranquillity, as it may disturb thesocial order. This delegated power vested in the State has to beexercised with great caution and free from arbitrariness. It mustserve the ends of the constitutional rights rather than to subvertthem.”

53. Further, Anita Thakur[7], the Court recognised that the right topeaceful protest was a fundamental right under Article 19(1), (b) and(c) of the Constitution, subject to reasonable restrictions. It was finallyheld that in that while the protestors turned violent first, the police usedexcessive force:

“12. We can appreciate that holding peaceful demonstration inorder to air their grievances and to see that their voice is heard inthe relevant quarters is the right of the people. Such a right can betraced to the fundamental freedom that is guaranteed under Articles19(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 offensivelanguage. Article 19(1)(b) confers the right to assemble and, thus,guarantees that all citizens have the right to assemble peacefullyand 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 eloquentstatement that “an unarmed, peaceful protest procession inthe land of “salt satyagraha”, fast-unto-death and “do ordie” is no jural anathema”. It hardly needs elaboration that adistinguishing feature of any democracy is the space offered forlegitimate dissent. One cherished and valuable aspect of politicallife in India is a tradition to express grievances through directaction or peaceful protest. Organised, non-violent protest marcheswere a key weapon in the struggle for Independence, and theright to peaceful protest is now recognised as a fundamental rightin the Constitution.

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13. Notwithstanding above, it is also to be borne in mind that theaforesaid rights are subject to reasonable restrictions in the interestof the sovereignty and integrity of India, as well as public order. Itis for this reason, the State authorities many a times designateparticular areas and routes, dedicating them for the purpose ofholding public meetings.

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15. Thus, while on the one hand, citizens are guaranteedfundamental right of speech, right to assemble for the purpose ofcarrying peaceful protest processions and right of free movement,on the other hand, reasonable restrictions on such right can be putby law. Provisions of IPC and CrPC, discussed above, are in theCform of statutory provisions giving powers to the State to ensurethat such public assemblies, protests, dharnas or marches arepeaceful and they do not become “unlawful”. At the same time,while exercising such powers, the authorities are supposed to actwithin the limits of law and cannot indulge into excesses……….”

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54. The right to protest is, thus, recognised as a fundamental rightunder the Constitution. This right is crucial in a democracy which restson participation of an informed citizenry in governance. This right is alsocrucial since it strengthens representative democracy by enabling directparticipation in public affairs where individuals and groups are able toEexpress dissent and grievances, expose the flaws in governance anddemand accountability from State authorities as well a powerful entities.This right is crucial in a vibrant democracy like India but more so in theIndian context to aid in the assertion of the rights of the marginalised andpoorly represented minorities.

55. At the same time, aforesaid rights under Article 19(1)(a) and19(1)(b) of the Constitution are not untrammeled and unlimited in theirscope. Article 19(2) to (6) make a specific provision for imposingreasonable restrictions on the rights conferring restrictions on the exerciseof such rights. Articles 19(2) and (3), in this behalf read as under:

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“(2) Nothing in sub clause (a) of clause ( 1 ) shall affect theoperation of any existing law, or prevent the State from makingany law, in so far as such law imposes reasonable restrictions onthe exercise of the right conferred by the said sub clause in theinterests of the sovereignty and integrity of India, the security of G

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the State, friendly relations with foreign States, public order,decency or morality or in relation to contempt of court, defamationor incitement to an offence.

(3) Nothing in sub clause (b) of the said clause shall affect theoperation of any existing law in so far as it imposes, or preventthe State from making any law imposing, in the interests of thesovereignty and integrity of India or public order, reasonablerestrictions on the exercise of the right conferred by the said subclause”

56. It can be deciphered from the aforesaid provisions that exerciseof right to speech conferred in clause (a) and right to assemble peacablyand without arms in clause (b) is made subject to reasonable restrictionswhich can be imposed, inter alia, in the interests of sovereignty andintegrity of India or public order. This legal position is also accepted byall the parties.

57. In this hue, we have to examine as to whether total ban ofdemonstrations etc. at Jantar Mantar road amounts to violation of therights of the protestors of the Constitution or this would amount to areasonable restriction in the interest of ‘public order’. There would bealso an incidental and interrelated issue, namely, whether the manner inwhich the demonstrations etc. are held at Jantar Mantar, they violate thefundamental right of the residents guaranteed under Article 21 of theConstitution. If the answer is in the affirmative, it would raise anotherissue, namely, balancing of the two rights. The right of the protestorsunder Article 19(1)(a) and 19(1)b) of the Constitution and the rights ofthe residents under Article 21 of the Constitution, as both the rights arefundamental rights.

58. In the aforesaid context, it would be pertinent to point out thatthere may be situations where conflict may arise between twofundamental rights. Situation can be conflict on inter fundamental rights,intra fundamental rights and, in certain peculiar circumstances, in respectof some person one fundamental right enjoyed by him may come inconflict with the other fundamental right guaranteed to him. In all suchsituations, the Court has to examine as to where lies the larger publicinterest while balancing the two conflicting rights. It is the paramountcollective interest which would ultimately prevail.

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A59. We may reproduce the following discussion from the judgmentof this Court in Subramanian Swamy v. Union of India, Ministry ofLaw & Ors.[11]:

“Balancing of fundamental rights

136. To appreciate what we have posed hereinabove, it isBnecessary to dwell upon balancing the fundamental rights. It hasbeen argued by the learned counsel for the petitioners that theright conferred under Article 19(1)(a) has to be kept at a differentpedestal than the individual reputation which has been recognisedas an aspect of Article 21 of the Constitution. In fact the submissionCis that right to freedom of speech and expression which includesfreedom of press should be given higher status and the individual’sright to have his/her reputation should yield to the said right. Inthis regard a passage from Sakal Papers (P) Ltd. has beencommended to us. It says: (AIR pp. 313-14, para 36)

D“36. … Freedom of speech can be restricted only in theinterests of the security of the State, friendly relations withforeign State, public order, decency or morality or in relation tocontempt of court, defamation or incitement to an offence. Itcannot, like the freedom to carry on business, be curtailed inthe interest of the general public. If a law directly affecting itEis challenged, it is no answer that the restrictions enacted by itare justifiable under clauses (3) to (6). For, the scheme of Article19 is to enumerate different freedoms separately and then tospecify the extent of restrictions to which they may be subjectedand the objects for securing which this could be done. A citizenFis entitled to enjoy each and every one of the freedomstogether and clause (1) does not prefer one freedom toanother. That is the plain meaning of this clause. It followsfrom this that the State cannot make a law which directlyrestricts one freedom even for securing the better enjoymentof another freedom.”

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(emphasis supplied)

137. Having bestowed our anxious consideration on the saidpassage, we are disposed to think that the above passage is of noassistance to the petitioners, for the issue herein is sustenance H11 (2016) 7 SCC 221

and balancing of the separate rights, one under Article 19(1)(a)and the other, under Article 21. Hence, the concept of equipoiseand counterweighing fundamental rights of one with other person.It is not a case of mere better enjoyment of another freedom. InAcharya Maharajshri Narendra Prasadji AnandprasadjiMaharaj v. State of Gujarat, it has been observed that a particularfundamental right cannot exist in isolation in a watertightcompartment. One fundamental right of a person may have tocoexist in harmony with the exercise of another fundamental rightby others and also with reasonable and valid exercise of powerby the State in the light of the directive principles in the interestsof social welfare as a whole. The Court’s duty is to strike a balancebetween competing claims of different interests. In DTC v.Mazdoor Congress the Court has ruled that articles relating tofundamental rights are all parts of an integrated scheme in theConstitution and their waters must mix to constitute that grandflow of unimpeded and impartial justice; social, economic andpolitical, and of equality of status and opportunity which implyabsence of unreasonable or unfair discrimination betweenindividuals or groups or classes. In St. Stephen’s College v.University of Delhi this Court while emphasising the need forbalancing the fundamental rights observed that: (SCC p. 612, para96)

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

60. In Asha Ranjan v. State of Bihar and Others[12], this test oflarger public interest to balance two rights has been explained in thefollowing manner:

“57. The aforesaid decision is an authority for the proposition thatthere can be a conflict between two individuals qua their rightunder Article 21 of the Constitution and in such a situation, toweigh the balance the test that is required to be applied is the testof larger public interest and further that would, in certaincircumstances, advance public morality of the day. To put itdifferently, the “greater community interest” or “interest of the 12 (2017) 4 SCC 397

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collective or social order” would be the principle to recognise andaccept 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 sets of appeals, onearising from Madhya Pradesh that related to Madhya PradeshDharma Swatantraya Adhiniyam, 1968 and the other pertained tothe Orissa Freedom of Religion Act, 1967. The two Acts insofaras they were concerned with prohibition of forcible conversionand punishment therefor, were similar. The larger Bench statedthe facts from Madhya Pradesh case which eventually travelledto the High Court. The High Court ruled that that there was nojustification for the argument that Sections 3, 4 and 5 were violativeof Article 25(1) of the Constitution. The High Court went on tohold that those sections “establish the equality of religious freedomfor all citizens by prohibiting conversion by objectionable activitiessuch as conversion by force, fraud and by allurement”. The OrissaAct was declared to be ultra vires the Constitution by the HighCourt. To understand the controversy, the Court posed thefollowing questions: (Rev. Stainislaus case, SCC p. 681, para 14)

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

59. It was contended before this Court that the right to propagateone’s religion means the right to convert a person to one’s ownreligion and such a right is guaranteed by Article 25(1) of theConstitution. The larger Bench dealing with the said contentionheld: (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 articlegrants is not the right to convert another person to one’s ownreligion, but to transmit or spread one’s religion by an expositionof its tenets. It has to be remembered that Article 25(1)guarantees “freedom of conscience” to every citizen, and notmerely to the followers of one particular religion, and that, inturn postulates that there is no fundamental right to convert another person to one’s own religion because if a personpurposely undertakes the conversion of another person to hisreligion, as distinguished from his effort to transmit or spreadthe tenets of his religion, that would impinge on the “freedomof conscience” guaranteed to all the citizens of the countryalike.”

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

“21. … It has to be appreciated that the freedom of religionenshrined in the article is not guaranteed in respect of onereligion only, but covers all religions alike, and it can be properlyenjoyed by a person if he exercises his right in a mannercommensurate with the like freedom of persons following theother religions. What is freedom for one, is freedom for theother, in equal measure, and there can therefore be no suchthing as a fundamental right to convert any person to one’sown religion.”

60. The aforesaid judgment in Rev. Stainislaus case clearly laysdown, though in a different context, that what is freedom for oneis also the freedom for the other in equal measure. The perceptionis explicated when the Court has said that it has to be rememberedthat Article 25(1) guarantees freedom of conscience to othercitizens and not merely to followers of particular religion and thereis no fundamental right to convert another person. The right isguaranteed to all citizens. The right to propagate or spread one’sreligion by an exposition of its tenets does not mean one’s religionto convert another person as it affects the fundamental right ofthe 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 necessitatefor balancing between intra-fundamental rights. It has beendistinctly understood that the test that has to be applied whilebalancing the two fundamental rights or inter fundamental rights,the principles applied may be different than the principle to beapplied in intra-conflict between the same fundamental right. Toelaborate, as in this case, the accused has a fundamental right tohave a fair trial under Article 21 of the Constitution. Similarly, thevictims who are directly affected and also form a part of the A

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Aconstituent of the collective, have a fundamental right for a fairtrial. Thus, there can be two individuals both having legitimacy toclaim or assert the right. The factum of legitimacy is a primaryconsideration. It has to be remembered that no fundamental rightis absolute and it can have limitations in certain circumstances.Thus, permissible limitations are imposed by the State. The saidBlimitations are to be within the bounds of law. However, whenthere is intra-conflict of the right conferred under the same article,like fair trial in this case, the test that is required to be applied, weare disposed to think, it would be “paramount collective interest”or “sustenance of public confidence in the justice dispensationCsystem”. An example can be cited. A group of persons in thename of “class honour”, as has been stated in Vikas Yadav v.State of U.P., cannot curtail or throttle the choice of a woman. Itis because choice of woman in choosing her partner in life is alegitimate constitutional right. It is founded on individual choicethat is recognised in the Constitution under Article 19, and such aDright is not expected to succumb to the concept of “class honour”or “group thinking”. It is because the sense of class honour hasno legitimacy even if it is practised by the collective under somekind of a notion. Therefore, if the collective interest or the publicinterest that serves the public cause and further has the legitimacyEto claim or assert a fundamental right, then only it can put forththat their right should be protected. There can be no denial of thefact that the rights of the victims for a fair trial is an inseparableaspect of Article 21 of the Constitution and when they assert thatright by themselves as well as the part of the collective, theconception of public interest gets galvanised. The accentuatedFpublic interest in such circumstances has to be given primacy, forit furthers and promotes “Rule of Law”. It may be clarified atonce that the test of primacy which is based on legitimacy and thepublic interest has to be adjudged on the facts of each case andcannot be stated in abstract terms. It will require studied scanningGof facts, the competing interests and the ultimate perception ofthe balancing that would subserve the larger public interest andserve the majesty of rule of law. In this regard, we are remindedof an ancient saying:

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“Yadapi siddham, loka viruddhamHNa adaraniyam, na acharaniyam”

The aforesaid saying lays stress on public interest and itssignificance and primacy over certain individual interest. It maynot thus have general application, but the purpose of referring tothe same is that on certain occasions it can be treated to beappropriate.

62. There may be a perception that if principle of primacy is to befollowed, then the right of one gets totally extinguished. It has tobe borne in mind that total extinction is not balancing. Whenbalancing act is done, the right to fair trial is not totally crippled,but it is curtailed to some extent by which the accused gets theright of fair trial and simultaneously, the victims feel that the fairtrial is conducted and the court feels assured that there is a fairtrial in respect of such cases. That apart, the faith of the collectiveis reposed in the criminal justice dispensation system and remainsanchored.”

61. Undoubtedly, right of people to hold peaceful protests anddemonstrations etc. is a fundamental right guaranteed under Articles19(1)(a) and 19(1)(b) of the Constitution. The question is as to whetherdisturbances etc. caused by it to the residents, as mentioned in detail bythe NGT, is a larger public interest which outweighs the rights of protestorsto hold demonstrations at Jantar Mantar road and, therefore, amounts toreasonable restriction in curbing such demonstrations. Here, we agreewith the detailed reasoning given by the NGT that holding ofdemonstrations in the way it has been happening is causing seriousdiscomfort and harassment to the residents. At the same time, it is alsoto be kept in mind that for quite some time Jantar Mantar has beenchosen as a place for holding demonstrations and was earmarked by theauthorities as well. Going by the dicta in Asha Ranjan, principle ofprimacy cannot be given to one right whereby the right of the other getstotally extinguished. Total extinction is not balancing. Balancing wouldmean curtailing one right of one class to some extent so that the right ofthe other class is also protected.

62. We feel that the pathetic conditions which were caused as aresult of the processions, demonstrations and agitations etc. at the JantarMantar were primarily because of the reason that authorities did nottake necessary measures to regulate the same. Had adequate andsufficient steps were taken by the authorities to ensure that such dharnasand demonstrations are held within their bounds, it would have balanced A

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Athe rights of protestors as well as the residents. For example, the dharnasand protests were allowed to be stretched almost on the entire JantarMantar 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 unnecessaryblockage of roads and pathways. Likewise, the demonstrators wereBallowed to go on with non-stop slogans, even at odd hours, at night, andthat too with the use of loudspeakers etc. The authorities could haveensured that such slogans are within the parameters of noise pollutionnorms and there are no shoutings or slogans at night hours or earlymorning hours. Again, these dharnas, agitations and processions couldCbe prohibited on certain occasions, for example, whenever some foreigndignitaries visit and pass through the said area or other such sensitiveoccasions. The authorities could also ensure that the protestors do notbring their trucks/buses etc. and park those vehicles in and around theresidential buildings; the protestors are not allowed to pitch up their tents and stay for days together; they are not allowed to bathe or wash theirDclothes using Delhi Jal Board tankers or defecate in the open, onpavements; and do not create any unhygienic situations. The authoritiescould also examine, while allowing such demonstration, as to the numberof protestors who are likely to participate and could refuse permission tohold any such demonstration etc. when the number is going to beEabnormally large which, if allowed, would per se create hardships ofvarious kinds to the residents. These are some of the examples given byus. The underlying message is that certain categories of peaceful protestsand demonstrations, in a guarded and regulated manner, could be allowedso as to enable the protestors to exercise their right and, at the sametime, ensuring that no inconvenience of any kind is caused to the residents.F

63. Before the NGT, the authorities took the position that suchdemonstrations are to be allowed as the area was earmarked for suchpurposes. The residents, on the other hand, in the petition filed by them,highlighted the infringement of their rights which were caused by thesedemonstrations. In this kind of adversarial approach adopted by the partiesGbefore the NGT, the NGT went by the ground realities and the patheticsituation faced by the residents because of such demonstrations. Thoughthis analysis of the NGT is without blemish, we, however, feel that thesolution was not to ban the demonstrations altogether. Instead, the NGTwould have directed the authorities to adopt such measures (some of H

which are indicated by us above) so that there is a balancing of therights of both the sections of the society.

64. At this juncture, while discussing the aspect of balancing ofthe two rights, we have to keep in mind certain other relevant factors aswell. In the first instance, what needs to be noted is that a portion ofRamlila Maidan has been earmarked for such demonstrations etc.Therefore, that space is already available. One of the argument raisedby the petitioner in the writ petition and appellants in the appeal is thatRamlila Maidan is far away from that portion of New Delhi area wherethere is a concentration of ‘power’ and, therefore, holding protests anddemonstration at a far place in Ramlila Maidan would have no impact orvery little effect. It was stressed that the purpose of holding suchdemonstrations and raising slogans is that they reach concerned personsfor whom these are meant. This may be correct. However, it is also tobe borne in mind that we are living in an era of technology where aconcerned voice by a group of persons can reach the right quarters bynumerous 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 thesame time, nobody can claim that I have a right to hold demonstration atone particular area only. While regulating such demonstrations in publicinterest, particular areas can be earmarked. On the other hand, it is alsoto be acknowledged that Ramlila Maidan may not be sufficient to caterto this requirement. Again, this place in old Delhi is a part of verycongested area and it has its own limitations when it comes to using thisarea for such purposes. Therefore, some other area is required. Since,Jantar Mantar was the area chosen by the authorities and has been inuse for quite sometime, balancing can be done by permitting a limitedpart of this area for holding peaceful public meetings, processions etc.,at least to small groups and, in such a manner, that there is no disturbanceor inconvenience of any nature whatsoever, insofar as residents areconcerned.

65. Having regard to the aforesaid discussion, we direct theCommissioner of Police, New Delhi in consultation with other concernedagencies, to devise a proper mechanism for limited use of the area forsuch purposes but to ensure that demonstrations, etc. are regulated insuch a manner that these do not cause any disturbance to the residents ABCDE

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Aof Jantar Mantar road or the offices situated there. Detailed guidelinesin this respect can be formulated. We may also clarify that a provisioncan be made for taking requisite prior permission from the PoliceCommissioner (or his delegated authority) for holding such demonstrationby a particular group and while examining such proposals the parameterscan be laid down which shall be looked into in order to decide whetherBthe permission is to be granted or not. Two months’ time is given to theCommissioner of Police, New Delhi for formulating such guidelines.

66. The petitioner in Writ Petition (Civil) No. 1153 of 2017 wantsboat club area to be available for demonstrations, etc. The petitionerhas successfully demonstrated that it is their fundamental right underCArticles 19(1)(a) and 19(1)(b) of the Constitution. At the same time, it isalso not denied that there can be reasonable restrictions on exercise ofthis right in larger public interest. The respondents have also highlightedin equal measure the sensitivity of this area because of its proximity tothe Parliament House, North and South Blocks and other Central DGovernment offices, including frequent visits of Heads of foreign Statesand other such factors. The respondents are also justified in pointing outthat alarmingly large number of requests for holding demonstrations atthis place are made. Further, intelligence reports reveal that some ofsuch demonstrations, if allowed, may cause serious law and ordersituation. The respondents are also correct to the extent that this CourtEhas not adopted ‘clear and present danger test’, as applied by the USCourts, and instead it is the ‘apprehension of breach of peace test’ whichis 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 144of the Cr.P.C. are examined in this context, one may not find foul with Fsuch orders. These orders do not, on their face, appear to be infectedwith any illegality as they prohibit public meetings, assembly of five ormore persons, processions, demonstrations, dharnas, etc. ‘withoutwritten permission’. Further, such orders are passed on the basis ofintelligence reports which indicate that ‘unrestricted holding of publicmeetings’, processions, demonstrations, etc. in the area are likely to causeGobstruction to traffic, danger to human safety and disturbance of publictranquility.

67. The tenor or these orders and the specific language used thereinbring 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 ‘withoutwritten permission’.

68. The reading of these orders, thus, would indicate that there isno absolute prohibition from holding public meetings, processions,demonstrations, etc. Such activities are to be restricted in larger publicinterest and, therefore, before any group of persons or person wants tocarry out any such processions and dharnas, it has to take prior writtenpermission. This clearly implies that whenever such a request is made,the authority is to examine the same and take a decision as to whether itshould allow the proposed demonstration, public meeting etc. or not,keeping in view its likely effect, namely, whether it would cause anyobstruction to traffic or danger to human safety or disturbance to publictranquility etc. If requests made are considered and then allowed orrejected keeping in view the aforesaid considerations, there cannot beany quarrel as to the validity of such an order made under Section 144 ofthe 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 inthat provision. However, just before the expiry of one order, anotheridentical order is passed. Such repeated orders, in continuum, havecreated a situation of perpetuity. It is argued on behalf of the respondentsthat as there is no change in the situation, which remains the same insofaras sensitivity of this area and specific/peculiar conditions prevailing, suchorders in repetitive form are necessitated. Even if we accept this positionand proceed on that basis, this would only mean continuous regulation ofthe proposed public meetings, processions, demonstrations, etc. by notallowing the same in ‘unrestricted’ manner. However, in reality no suchactivities are allowed at all and, therefore, the situation which is createdamounts to ‘banning’ these public meetings, demonstrations, dharnas,etc. altogether rather than ‘regulating’ the same.

70. In the aforesaid conspectus, here also the Commissioner ofPolice, New Delhi and other official respondents can frame properguidelines for regulating such protests, demonstrations, etc. As noted A

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Aabove, the orders issued under Section 144 prohibit certain activities inthe nature of demonstrations etc. ‘without permission’, meaning therebypermission can be granted in certain cases. There can, therefore, beproper guidelines laying down the parameters under which permissioncan be granted in the Boat Club area. It can be a very restrictive andlimited use, because of the sensitivities pointed out by the respondentsBand also keeping in mind that Ramlila Maidan is available and JantarMantar Road in a regulated manner shall be available as well, in a coupleof months. Thus, the proposed guidelines may include the provisions forregulating the numbers of persons intending to participate in suchdemonstrations, prescribing the minimum distance from the ParliamentCHouse, North and South Blocks, Supreme Court, residences of dignitariesetc. within which no such demonstrations would be allowed; imposingrestrictions on certain routes where normally the Prime Minister, CentralMinisters, Judges etc pass through; not permitting any demonstrationswhen foreign dignitaries are visiting a particular place or pass through the particular route; not allowing firearms, lathis, spears, swords, etc. toDbe carried by demonstrators; not allowing them to bring animals or pitchtents or stay overnight; prescribing time limits for such demonstrations;and placing restrictions on such demonstrations, etc. during peak traffichours. To begin with, authorities can permit those processions anddemonstrations which are innocuous by their very nature. Illustratively,Eschool children carrying out procession to advance some social cause orcandle march by peace loving group of persons against a social evil ortragic incident. These are some of the examples given by us to signifythat such demonstrations can be effectively regulated by adopting variousmeasures instead of banning them altogether by rejecting every requestfor such demonstrations. We, therefore, feel that in respect of this areaFas well the authorities can formulate proper and requisite guidelines.We direct the Commissioner of Police, New Delhi, to undertake thisexercise, in consultation with other authorities, within two months fromtoday.

71. Writ petitions and appeals stand disposed of in the aforesaidGterms.

Nidhi Jain

Matters disposed of.

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