2012 (2) TMI 671 - SC - Indian Laws

Ramlila maidan Incident - whether an order passed u/s 144 crpc by the authorities stands protected under the restriction clause of Article 19 of the Constitution of India or does it violate the rights of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours - The basic requirements for passing an order u/s 144 CrPC can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 CrPC. the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility. Test of 'proximate and direct nexus with the expression' - the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest. The restriction must be provided by law in a manner somewhat distinct to the term 'due process of law' as contained in Article 21 of the Constitution . If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness , which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed u/s 144 CrPC. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 CrPC and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction. The distinction between 'public order' and 'law and order' is a fine one, but nevertheless clear. A restriction imposed with 'law and order' in mind would be least intruding into the guaranteed freedom while 'public order' may qualify for a greater degree of restriction since public order is a matter of even greater social concern. 'security of the state' is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of 'public order' and 'law and order'. HELD THAT - In the present case, the State and the Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed. The decision to forcibly evict the innocent public sleeping at the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by the police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an invasion of the liberties and exercise of fundamental freedoms. The members of the assembly had legal protections available to them even under the provisions of the CrPC. Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution. Except in cases of emergency or the situation unexceptionably demanding so, reasonable notice/time for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre-requisite. It was primarily an error of performance of duty both by the police and Respondent No. 4 but the ultimate sufferer was the public at large. It is nobody's case that the directions issued by the appropriate authority as well as the Police had not been carried out by the organisers. It is also nobody's case that the conditions imposed in the letters granting permission were breached by the organisers at any relevant point of time. Even on 3rd June, 2011, the Deputy Commissioner of Police, Central District, who was the officer directly concerned with the area in question, had issued a restricted circular containing details of the arrangements, the objectives and the requirements which the deployed forces should take for smooth organization of the camp at Ramlila Maidan. The threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence. The order passed u/s 144 CrPC does not give any material facts or such compelling circumstances that would justify the passing of such an order at 11.30 p.m. on 4th June, 2011. There should have existed some exceptional circumstances which reflected a clear and prominent threat to public order and public tranquility for the authorities to pass orders of withdrawal of permission at 9.30 p.m. on 4th June, 2011. What weighed so heavily with the authorities so as to compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. Whatever circumstances have been detailed in the affidavit are, what had already been considered by the authorities concerned right from 25th May, 2011 to 3rd June, 2011 and directions in that behalf had been issued. Exercise of such power, declining the permission has to be in rare and exceptional circumstances, as in the normal course, the State would aid the exercise of fundamental rights rather than frustrating them. The mere change in the purpose or in the number of persons to be gathered at the Ramlila Maidan simplicitor could hardly be the cause of such a grave concern for the authorities to pass the orders late in the night. In the Standing Order issued by the Police itself, it has been clarified that wherever the gathering is more than 50,000, the same may not be permitted at the Ramlila Maidan, but they should be offered Burari ground as an alternative. This itself shows that the attempt on the part of the authorities concerned should be to permit such public gathering by allotting them alternative site and not to cancel such meetings. B.S. Chauhan, JJ - I respectfully agree with all the observations and the findings recorded by my colleague and I also concur with the observation that the findings recorded on the sufficiency of reasons in the order There was no gossip or discussion of something untrue that was going on. To the contrary, it was admittedly an assembly of followers, under a peaceful banner of Yogic training, fast asleep. The assembly was at least, purportedly, a conglomeration of individuals gathered together, expressive of a determination to improve the material condition of the human race. The aim of the assembly was prima facie unobjectionable and was not to inflame passions. It was to ward off something harmful. What was suspicious or conspiratory about the assembly, may require an investigation by the appropriate forum, but to my mind the implementation appears to have been done in an unlawful and derogatory manner that did violate the basic human rights of the crowd to have a sound sleep which is also a constitutional freedom, acknowledged under Article 21 of the Constitution of India. RIGHT TO SLEEP - It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state. Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance, creativity and vitality. Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle. HELD THAT - In Present case, as a sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society.

Summary

Issues Involved:
1. Legality and validity of the order passed under Section 144 of the Code of Criminal Procedure (CrPC).
2. The right to freedom of speech and assembly under Articles 19(1)(a) and 19(1)(b) of the Constitution.
3. The manner and justification of the police action in enforcing the order.
4. The right to privacy and the right to sleep as fundamental rights under Article 21 of the Constitution.
5. The responsibility and liability of the Trust and its members.
6. The role and duties of the police in maintaining public order and safety.

Issue-wise Detailed Analysis:

1. Legality and Validity of the Order under Section 144 CrPC:
The Court examined whether the order passed under Section 144 CrPC by the Assistant Commissioner of Police was in conformity with the provisions of the CrPC and the Delhi Police Standing Order 309. The Court noted that the order must set out material facts justifying its necessity and urgency. The order in question cited the need to prevent obstruction to traffic, danger to human safety, and disturbance of public tranquility. However, the Court found that the order lacked sufficient material facts and was executed in undue haste, leading to an arbitrary and unreasonable restriction on the fundamental rights of the assembly.

2. Right to Freedom of Speech and Assembly:
The Court reaffirmed that the right to freedom of speech and assembly is fundamental under Articles 19(1)(a) and 19(1)(b) of the Constitution. However, these rights are subject to reasonable restrictions under Articles 19(2) and 19(3). The Court emphasized that the police have a role in regulating public meetings to ensure public order and safety, but such regulation must be reasonable and not arbitrary. The police's action in this case was found to be an unreasonable invasion of the fundamental rights of the assembly.

3. Manner and Justification of Police Action:
The Court criticized the manner in which the police enforced the order under Section 144 CrPC. The police action was executed at midnight while the assembly was asleep, without proper announcements or warnings, leading to chaos and injuries. The Court found that the police failed to follow the procedural requirements and guidelines, such as making public announcements and using minimal force. The undue haste and overzealousness of the police were deemed unjustified and an abuse of power.

4. Right to Privacy and Right to Sleep:
The Court highlighted that the right to privacy and the right to sleep are integral parts of the right to life and personal liberty under Article 21 of the Constitution. The disruption of sleep by the police action was seen as a violation of these fundamental rights. The Court noted that sleep is essential for maintaining health and well-being, and its deprivation amounts to torture and a violation of human rights.

5. Responsibility and Liability of the Trust and Its Members:
The Court found that the Trust and its members, including Baba Ramdev, were guilty of contributory negligence. They failed to cooperate with the lawful orders of the police and did not take adequate steps to ensure the peaceful dispersal of the assembly. The Court held that the Trust and its representatives had a legal and moral duty to maintain public order and should have acted responsibly to avoid the confrontation with the police.

6. Role and Duties of the Police:
The Court emphasized that the police have a duty to maintain public order and safety, but this duty must be exercised with restraint and in accordance with the law. The police should facilitate the exercise of fundamental rights rather than suppress them. The Court directed that the police should follow the guidelines and standing orders while enforcing orders under Section 144 CrPC and should ensure minimal use of force and proper communication with the public.

Findings and Directions:
1. The police and the Trust were both at fault for the incident, with the police acting in undue haste and the Trust failing to cooperate.
2. The police action was an unreasonable and arbitrary restriction on the fundamental rights of the assembly.
3. The right to privacy and sleep were violated by the police action.
4. The police should follow procedural guidelines and ensure minimal use of force in similar situations.
5. Compensation was awarded to the victims, with the Trust bearing partial responsibility for the compensation.

Conclusion:
The Court concluded that the incident could have been avoided with greater restraint and cooperation from both the police and the Trust. The police's action was found to be an arbitrary and unreasonable invasion of fundamental rights, and both the police and the Trust were held responsible for the consequences. The Court issued directions to ensure that such incidents do not recur and that the rights of individuals are protected while maintaining public order.