Mazdoor Kisan Shakti Sangathan vs The Union of India & Anr.

Arts. 32, 19(1)(a) and 19(1)(b) – Right to protest – Right to assemble peaceably and without arms – Writ petitions seeking quashing of the repeated imposition of police order u/s. 144 Cr.P.C. by which Central Delhi area declared as prohibited area for holding public meetings, dharna, peaceful protests; quashing of the order of NGT prohibiting/banning demonstrations at Jantar Mantar road; and issuance of writ of mandamus laying down the guidelines for holding public meetings, dharnas – Held: Right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed u/Art. 19(1)(a) and 19(1)(b) – Peaceful protests and demonstrations, can be allowed in a guarded and regulated manner, to enable the protestors to exercise their right, ensuring that no inconvenience of any kind is caused to the residents – There could be balancing of the rights of both the protestors and the residents – For quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well – However, pathetic conditions were caused as a result of the processions, demonstrations and agitations etc. since the authorities did not take necessary measures to regulate the same – Ramlila Maidan earmarked for such demonstrations etc, may not be sufficient to cater to this requirement – Since, Jantar Mantar was the area chosen by the authorities and has been in use for quite sometime, balancing can be done by permitting a limited part of this area for holding peaceful public meetings, processions etc. such that no disturbance or inconvenience of any nature is caused to the residents – Commissioner of Police, New Delhi in consultation with other concerned agencies, to frame proper guidelines for regulating such protests, demonstrations iin Jantar Mantar and Boat Club area. Arts. 19(1)(a), 19(1)(b) – Right to protest – Held: Holding peaceful demonstrations by the citizenry to air its grievances is a fundamental right, enshrined u/Art.19(1)(a) and 19(1)(b), subject to reasonable restrictions, which can be imposed in the interests of sovereignty and integrity of India or public order – Legitimate dissent is a distinguishable feature of any democracy – It is not whether the issue raised by protestors is right or wrong or is justified or unjustified – Fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances – This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities.

Arts. 19(1)(a), 19(1)(b) and 21 – Fundamental rights – Right of protestors u/Art. 19(1)(a) and 19(1)(b) vis-a-vis the rights of the residents u/Art. 21 – Balancing of the two rights – Held: Situations arise where there is conflict between two fundamental rights – In respect of some person one fundamental right enjoyed by him may come in conflict with the other fundamental right guaranteed to him – Principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished – Total extinction is not balancing – Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected – While balancing the two conflicting rights, the Court is to examine the larger public interest, which would ultimately prevail. Code of Criminal Procedure, 1973: s. 144 – Repeated imposition of police order u/s. 144 Cr.P.C. by which Central Delhi area declared as prohibited area for holding public meeting, dharna or peaceful protest – Held: These orders do not, on their face, appear to be illegal as they prohibit public meetings, assembly of five or more persons, processions, demonstrations, dharnas, etc. ‘without written permission’ – Further , such orders are passed on the basis of intelligence reports which indicate that ‘unrestricted holding of public meetings’, processions, demonstrations, etc. in the area are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility – Reading of these orders would indicate that there is no absolute prohibition from holding public meetings, processions, demonstrations, etc – Such activities are to be restricted in larger public interest and, therefore, before any group of persons or person wants to carry out any such processions and dharnas, it has to take prior written permission – Furthermore, repeated order passed u/s. 144 in continuum, have created a situation of perpetuity – Orders issued u/s. 144 prohibit certain activities in the nature of demonstrations etc. ‘without permission’, meaning thereby permission can be granted in certain cases – However, in reality no such activities are allowed at all and, therefore, the situation which is created amounts to ‘banning’ these public meetings, demonstrations, dharnas, etc. altogether rather than ‘regulating’ the same.

Disposing of the matters, the Court

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

2.1 Holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Article 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers a vary valuable right on the citizens, namely, right of free speech. Likewise, Article 19(1)(b) gives right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests. [Para 48] [628-B-E]

2.2 The right to protest is recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from State authorities as well a powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. At the same time, the said rights under Article 19(1)(a) and 19(1)(b) are not untrammeled and unlimited in their scope. Article 19(2) to (6) make a specific provision for imposing reasonable restrictions on the rights conferring restrictions on the exercise of such rights. It can be deciphered from the said provisions that exercise of right to speech conferred in clause (a) and right to assemble peacably and without arms in clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. [Para 54-56] [632-D-G; 633-C]

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

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

2.5 The pathetic conditions which were caused as a result of the processions, demonstrations and agitations etc. at the Jantar Mantar were primarily because of the reason that authorities did not take necessary measures to regulate the same. Had adequate and sufficient steps were taken by the authorities to ensure that such dharnas and demonstrations are held within their bounds, it would have balanced the rights of protestors as well as the residents. For example, the dharnas and protests were allowed to be stretched almost on the entire Jantar Mantar road, on both sides, and even across the width of the road. Instead, a particular area could have been earmarked for this purpose, sufficiently away from the houses etc. so that there is no unnecessary blockage of roads and pathways. Likewise, the demonstrators were allowed to go on with non-stop slogans, even at odd hours, at night, and that too with the use of loudspeakers etc. The authorities could have ensured that such slogans are within the parameters of noise pollution norms and there are no shoutings or slogans at night hours or early morning hours. Again, these dharnas, agitations and processions could be prohibited on certain occasions, for example, whenever some foreign dignitaries visit and pass through the said area or other such sensitive occasions. The authorities could also ensure that the protestors do not bring their trucks/buses etc. and park those vehicles in and around the residential buildings; the protestors are not allowed to pitch up their tents and stay for days together; they are not allowed to bathe or wash their clothes using Delhi Jal Board tankers or defecate in the open, on pavements; and do not create any unhygienic situations. The authorities could also examine, while allowing such demonstration, as to the number of protestors who are likely to participate and could refuse permission to hold any such demonstration etc. when the number is going to be abnormally large which, if allowed, would per se create hardships of various kinds to the residents. Certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed so as to enable the protestors to exercise their right and, at the same time, ensuring that no inconvenience of any kind is caused to the residents. [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 be noted is that a portion of Ramlila Maidan has been earmarked for such demonstrations etc. Therefore, that space is already available. One of the argument raised by the petitioner in the writ petition and appellants in the appeal is that Ramlila Maidan is far away from that portion of New Delhi area where there is a concentration of ‘power’ and, therefore, holding protests and demonstration at a far place in Ramlila Maidan would have no impact or very little effect. It was stressed that the purpose of holding such demonstrations and raising slogans is that they reach concerned persons for whom these are meant. This may be correct. However, it is also to be borne in mind that in an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Social media and various applications like ‘WatsApp’, ‘Twitter’, ‘Instagram’ etc. which take no time in spreading such events. Though holding protests and demonstrations is an accepted right, at the same time, nobody can claim that they have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked. On the other hand, it is also to be acknowledged that Ramlila Maidan may not be sufficient to cater to this requirement. Again, this place in old Delhi is a part of very congested area and it has its own limitations when it comes to using this area for such purposes. Therefore, some other area is required. Since, Jantar Mantar was the area chosen by the authorities and has been in use for quite sometime, balancing can be done by permitting a limited part of this area for holding peaceful public meetings, processions etc., at least to small groups and, in such a manner, that there is no disturbance or inconvenience of any nature whatsoever, insofar as residents are concerned. [Para 64] [641-B-G]

2.7 The Commissioner of Police, New Delhi in consultation with other concerned agencies, is directed to devise a proper mechanism for limited use of the area for such purposes but to ensure that demonstrations, etc. are regulated in such a manner that these do not cause any disturbance to the residents of Jantar Mantar road or the offices situated there. Detailed guidelines in this respect can be formulated. It is also clarified that a provision can be made for taking requisite prior permission from the Police Commissioner (or his delegated authority) for holding such demonstration by a particular group and while examining such proposals the parameters can be laid down which shall be looked into in order to decide whether the permission is to be granted or not. Two months’ time is given to the Commissioner of Police, New Delhi for formulating such guidelines. [Para 65] [641-G-H; 642-A-B]

2.8 As regards, the boat club area to be available for demonstrations, the respondents highlighted in equal measure the sensitivity of this area because of its proximity to the Parliament House, North and South Blocks and other Central Government offices, including frequent visits of Heads of foreign States and other such factors. The respondents are also justified in pointing out that alarmingly large number of requests for holding demonstrations at this place are made. Further, intelligence reports reveal that some of such demonstrations, if allowed, may cause serious law and order situation. The respondents are also correct to the extent that this Court has not adopted ‘clear and present danger test’, as applied by the US Courts, and instead it is the ‘apprehension of breach of peace test’ which is to be used in order to decide as to whether a particular demonstration/dharna is to be allowed or not. When orders passed under Section 144 Cr.P.C. are examined in this context, one may not find foul with such orders. These orders do not, on their face, appear to be infected with any illegality as they prohibit public meetings, assembly of five or more persons, processions, demonstrations, dharnas, etc. ‘without written permission’. Further, such orders are passed on the basis of intelligence reports which indicate that ‘unrestricted holding of public meetings’, processions, demonstrations, etc. in the area are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility. [Para 66] [642-C-G]

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

2.10 An order passed under Section 144 Cr.P.C. remains valid for a period of sixty days which is the limit prescribed in that provision. However, just before the expiry of one order, another identical order is passed. Such repeated orders, in continuum, have created a situation of perpetuity. It is argued on behalf of the respondents that as there is no change in the situation, which remains the same insofar as sensitivity of this area and specific/peculiar conditions prevailing, such orders in repetitive form are necessitated. Even if this position is accepted and proceed on that basis, this would only mean continuous regulation of the proposed public meetings, processions, demonstrations, etc. by not allowing the same in ‘unrestricted’ manner. However, in reality no such activities are allowed at all and, therefore, the situation which is created amounts to ‘banning’ these public meetings, demonstrations, dharnas, etc. altogether rather than ‘regulating’ the same. [Para 69] [643-E-G]

2.11 The Commissioner of Police, New Delhi and other official respondents can frame proper guidelines for regulating such protests, demonstrations, etc. The orders issued under Section 144 prohibit certain activities in the nature of demonstrations etc. ‘without permission’, meaning thereby permission can be granted in certain cases. There can, therefore, be proper guidelines laying down the parameters under which permission can be granted in the Boat Club area. It can be a very restrictive and limited use, because of the sensitivities pointed out by the respondents and also keeping in mind that Ramlila Maidan is available and Jantar Mantar Road in a regulated manner shall be available as well, in a couple of months. Thus, the proposed guidelines may include the provisions for regulating the numbers of persons intending to participate in such demonstrations, prescribing the minimum distance from the Parliament House, North and South Blocks, Supreme Court, residences of dignitaries etc. within which no such demonstrations would be allowed; imposing restrictions on certain routes where normally the Prime Minister, Central Ministers, Judges etc pass through; not permitting any demonstrations when foreign dignitaries are visiting a particular place or pass through the particular route; not allowing firearms, lathis, spears, swords, etc. to be carried by demonstrators; not allowing them to bring animals or pitch tents or stay overnight; prescribing time limits for such demonstrations; and placing restrictions on such demonstrations, etc. during peak traffic hours. Authorities can permit those processions and demonstrations which are innocuous by their very nature. Illustratively, school children carrying out procession to advance some social cause or candle march by peace loving group of persons against a social evil or tragic incident. These are some of the examples given to signify that such demonstrations can be effectively regulated by adopting various measures instead of banning them altogether by rejecting every request for such demonstrations. [Para 70] [643-H; 644-A-F]

Bano Bee v. Union of India and Anr. Writ Petition (Civil) No. 5000 of 2010; Madhu Limaye v. SubDivisional Magistrate (1970) 3 SCC 746 : [1971] 2 SCR 711; Bimal Gurun v. Union of India (2018) SCC Online SC 233; Anita Thakur v. Government of Jammu and Kashmir (2016) 15 SCC 525; Ramlila Maidan

Incident 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; Kameshwar Prasad v. State of Bihar (1962) Supp 3 SCR 369; Himat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973) 1 SCC 227 : [1973] 2 SCR 266; Subramanian Swamy v. Union of India, Ministry of Law & Ors. (2016)

7 SCC 221 : [2016] 3 SCR 865; Asha Ranjan v. State of Bihar and Others (2017) 4 SCC 397 – referred to.

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; Laporte, R. (on the application of) v. Chief Constable of Gloucesershire [2006] UKHL 55 –

referred to.