2018 (7) TMI 2156 - SC - Indian Laws

Validity of repeated imposition of police order Under Section 144 of Code of Criminal Procedure - Ban imposed by the Assistant Commissioner of Police, Sub-Division, Parliament Street, New Delhi District prohibiting various activities without written permission in the areas known as Parliament House, North and South Block, Central Vista Lawns together with its surrounding localities and areas - It is the grievance of the Petitioner that though a particular order passed Under Section 144 of the Code of Criminal Procedure remains in force for a period of 60 days, simultaneously on the expiry of the said period of 60 days another order of identical nature is passed thereby banning the holding of public meetings, peaceful assembly and peaceful demonstrations by the public at large. HELD THAT - 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. It can be deciphered from the provisions of Articles 19(2) and (3) that exercise of right to speech conferred in Clause (a) and right to assemble peaceably and without arms in Clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. This legal position is also accepted by all the parties. Whether total ban of demonstrations etc. at Jantar Mantar road amounts to violation of the rights of the protestors of the Constitution or this would amount to a reasonable restriction in the interest of 'public order'? - HELD THAT - There would be also an incidental and interrelated issue, namely, whether the manner in which the demonstrations etc. are held at Jantar Mantar, they violate the fundamental right of the residents guaranteed Under Article 21 of the Constitution. If the answer is in the affirmative, it would raise another issue, namely, balancing of the two rights. The right of the protestors Under Article 19(1)(a) and 19(1)(b) of the Constitution and the rights of the residents Under Article 21 of the Constitution, as both the rights are fundamental rights. Thus, it would be pertinent to point out that there may be situations where conflict may arise between two fundamental rights. Situation can be conflict on inter fundamental rights, intra fundamental rights and, in certain peculiar circumstances, in respect of some person one fundamental right enjoyed by him may come in conflict with the other fundamental right guaranteed to him. In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail. Undoubtedly, right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed Under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents - 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. In the first instance, what needs to be noted is that a portion of Ramlila Maidan has been earmarked for such demonstrations etc. Therefore, that space is already available. One of the argument raised by the Petitioner in the writ petition and Appellants in the appeal is that Ramlila Maidan is far away from that portion of New Delhi area where there is a concentration of 'power' and, therefore, holding protests and demonstration at a far place in Ramlila Maidan would have no impact or very little effect. It was stressed that the purpose of holding such demonstrations and raising slogans is that they reach concerned persons for whom these are meant. This may be correct. However, it is also to be borne in mind that we are living in an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like 'WatsApp', 'Twitter', 'Instagram' etc. which take no time in spreading such events. Secondly, though holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked. On the other hand, it is also to be acknowledged that Ramlila Maidan may not be sufficient to cater to this requirement. Again, this place in old Delhi is a part of very congested area and it has its own limitations when it comes to using this area for such purposes. 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 - The Petitioner has successfully demonstrated that it is their fundamental right Under Articles 19(1)(a) and 19(1)(b) of the Constitution. At the same time, it is also not denied that there can be reasonable restrictions on exercise of this right in larger public interest. The Respondents have also highlighted in equal measure the sensitivity of this area because of its proximity to the Parliament House, North and South Blocks and other Central Government offices, including frequent visits of Heads of foreign States and other such factors. The Respondents are also justified in pointing out that alarmingly large number of requests for holding demonstrations at this place are made. Further, intelligence reports reveal that some of such demonstrations, if allowed, may cause serious law and order situation. The 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. The Commissioner of Police, New Delhi, directed to undertake this exercise, in consultation with other authorities, within two months from today - petition disposed off.

Summary

Issues Involved:
1. Legality of repeated imposition of orders under Section 144 of the Code of Criminal Procedure (Cr.P.C.) in Central Delhi.
2. Validity of the National Green Tribunal (NGT) order prohibiting protests at Jantar Mantar.
3. Fundamental right to hold peaceful demonstrations under Articles 19(1)(a) and 19(1)(b) of the Constitution.
4. Balancing the right to protest with the rights of residents under Article 21 of the Constitution.
5. Reasonableness of restrictions on the right to protest in sensitive areas of New Delhi.

Issue-wise Detailed Analysis:

1. Legality of Repeated Imposition of Orders under Section 144 of Cr.P.C.:
The petitioner challenged the repeated imposition of prohibitory orders under Section 144 of Cr.P.C. in Central Delhi, arguing that these orders infringe the fundamental right to peaceful assembly under Article 19(1)(b) of the Constitution. The court noted that while Section 144 can be used in emergent situations, its continuous and repetitive use without sufficient grounds is not justified. The court referenced the Delhi High Court's decision in Bano Bee v. Union of India, which deprecated the blanket ban on assemblies through repeated Section 144 orders. The court emphasized that such orders should only be used in emergencies and not as a permanent measure to stifle the right to protest.

2. Validity of the NGT Order Prohibiting Protests at Jantar Mantar:
The NGT's order banning protests at Jantar Mantar was challenged on the grounds that it violates the fundamental right to peaceful assembly. The NGT had issued the order due to the adverse impact of continuous protests on the residents, including noise pollution, traffic congestion, and unhygienic conditions. The court acknowledged the NGT's findings but emphasized that a complete ban on protests is not the solution. Instead, the court suggested that authorities should regulate protests to balance the rights of protestors and residents.

3. Fundamental Right to Hold Peaceful Demonstrations under Articles 19(1)(a) and 19(1)(b):
The court reiterated that holding peaceful demonstrations is a fundamental right under Articles 19(1)(a) and 19(1)(b) of the Constitution. This right is crucial in a democracy for airing grievances and ensuring that voices are heard by the authorities. The court referenced several judgments, including Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, and Ramlila Maidan Incident, which upheld the right to protest as a fundamental right. However, the court also noted that this right is subject to reasonable restrictions in the interest of public order.

4. Balancing the Right to Protest with the Rights of Residents under Article 21:
The court emphasized the need to balance the right to protest with the rights of residents to live in peace and without disturbance, as guaranteed under Article 21 of the Constitution. The court highlighted that the right to protest is not absolute and must be exercised without infringing on the rights of others. The court suggested that authorities should take measures to regulate protests to ensure that they do not cause undue hardship to residents. This includes designating specific areas for protests, limiting the duration and noise levels, and ensuring proper sanitation facilities.

5. Reasonableness of Restrictions on the Right to Protest in Sensitive Areas of New Delhi:
The court acknowledged the sensitivity of the Central Delhi area, including the proximity to Parliament House, North and South Blocks, and other government offices. The court noted that while restrictions on protests in these areas are justified, they should not amount to a complete ban. The court directed the Commissioner of Police, New Delhi, to formulate guidelines for regulating protests in these areas. These guidelines should include provisions for prior permission, limiting the number of participants, and ensuring that protests do not disrupt public order or cause inconvenience to residents.

Conclusion:
The court disposed of the writ petitions and appeals by directing the Commissioner of Police, New Delhi, to devise guidelines for regulating protests in Central Delhi and Jantar Mantar. The guidelines should balance the fundamental right to protest with the rights of residents and public order considerations. The court emphasized that protests should be allowed in a regulated manner to ensure that they do not cause undue hardship to residents or disrupt public order.