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TMI Blog1972 (9) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... uired by notification of the Commissioner of Police, No. 982/66 dated February 15, 1966. "The appellant was also informed that "holding a meeting with or without loudspeaker, without the permission, amounts to an offence." On August 30, 1969 the appellant had also applied for permission to hold another public meeting on September 5, 1969. The Deputy Police Commissioner informed him on September 2. 1969, that the permission "cannot be granted inasmuch as a meeting was held on 7-8--69 under a similar permission whereafter certain elements had indulged in rioteering and caused mischief to private and public properties, regarding which a crime also has been registered". He was also informed that "in view of the present position, it is not possible to grant such permission in order to maintain law and order." He was further asked to note that "holding meeting with or without a loudspeaker without permission amounts to an offence." The appellant thereupon filed a petition under Art. 226 of the Constitution, on September 3, 1969, praying inter alia. (1) to quash the orders mentioned above; (2) to declare s.33(o) read with s.33(y) of the Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissionerate of Police, Ahmedabad City. Rules (1) to (6) deal with processions. Rule (6) may be reproduced. "6. Subject to the, provisions of the foregoing rules and subject to the imposition of such conditions as may be deemed necessary, a permission shall be granted, unless the officer concerned is of opinion that the procession proposed to be organised or taken out shall be prohibited, in which case he shall forth with refer the application together with his report thereon for the orders of the Commissioner of Police, Ahmedabad City. No permission shall be required for a bonafide religious or marriage procession consisting of less than 100 or a funeral procession of a person who has died a natural death." Rules (7) to (13) deal with holding of public meetings. Rule (14) and Rule (15) apply to both processions and public meeting. Rules (7), (8), (9), (11) and (14) are reproduced below. Rule (15) makes the infringment of rules and conditions punishable. "(7). No public meeting with or without loudspeaker, shall beheld on the public street within the jurisdiction of the Commissionerate of the Police, Ahmedabad City unless the necessary permission in wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; in clause (o)." The second contention was repelled by the High Court on the ground that "a detailed examination of the various provisions of the Act clearly indicates the policy underlying the Act and provides clear guidance to the officers who have to exercise powers of framing Rules conferred on them." The High Court observed that "it cannot besaid that clause (o) confers naked, uncontrolled and arbitrary powers on the Commissioner of Police to grant or refuse permission at his sweet will and pleasure." Regarding the third ground it was held that the Rules imposed reasonable restrictions and were covered by Art. 19(2). The learned counsel for the appellant submitted before us the following propositions :- (1) Rules 7, 13. 14 and 15 promulgated by the Commissioner of Police on October 21, 1965 are ultra vires section 33 (1) (o) of the Bombay Police Act, 1951, as in force in Gujarat, inasmuch has the said provisions do not authorise framing of rules requiring the prior permission for holding meetings. (2)Section 33 (1) (o) of the Act is unconstitutional as it infringes Art. 19(1) (a) and (b). The restrictions are wide enough to cover restrictions both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of England no one has a right to hold a meeting on a highway and the same law prevails in India and, therefore, we should read the word "regulating" to mean a right to prohibit the holding of a meeting also. 'Reference was made to Halsbury, Third Edition, volume 19, where it is stated that "the right of the public is a right to pass along a highway for the purpose of legitimate travel, not to be on it except so far as their presence is attributed to a reasonable and proper use of the highway as such. (page 73. para 107). On page 276 it is stated that "the right of passage does not include the right torace upon the highway, and to do so is an indictable nuisance, nor is there any right to organise or take part in a processionor meeting which naturally results in an obstruction and is an unreasonable user of the highway." In the footnote it is stated that "the right of the public on the highway is 'a right of passage in a reasonable manner and there is no right to hold meetings in the highway." Reference was also made to Blackwell's Law of Meetings (9th edn. p. 5), wherein it is stated as follows :- "There appears to exist a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difying the Constitution of their House, and as B may make the same remark to. any of his friends, the result ensues that A and ten thousand more may hold a public meeting either to support the Government or to encourage the resistance of the Peers. Here then you have in substance that right of public meeting for political and other purposes which is constantly treated in foreign countries as a special privilege to be exercised only subject to careful restrictions". It is not necessary to refer to the English authorities on the point because in India the law has developed on slightly different lines, especially with regard to processions, and the Statutes of the country have treated the right to take out processions and hold meetings on streets in a similar fashion. In Parthasaradiayyangar v. Chinnakrishna Ayyangar, I.L.R. (1882) 5 Mad. 304; 309 it was held that persons were "entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates' may lawfully give to prevent obstruction of the thoroughfare or breaches of the public peace.&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... howing that it is forbidden by law, but this it admittedly is not. The law recognizes the use of the highway by processions as lawful: and gives the Magistrate and superior officers of police power to direct the conduct of assemblies and processions through the public streets and to regulate the use of music in connection with them, and to prevent obstructions on the occasion of such assemblies and processions...... The law recognises religious processions as lawful just as much as it recognizes other processions........ It is more reasonable to suppose that he would dedicate the highway to the purposes for which, in accordance with the custom of the country, it would he required by the people. The penal law of India extends a special protection against voluntary disturbances to all assemblies lawfully engaged in religious worship. A procession is but an assembly in motion and if it is, a religious procession., it is, in my judgment, entitled to the special protection given by the Penal Code assemblies lawfully engaged in religious worship." We have referred to these cases in detail because they were approved of by the Privy Council in Manzur Hasan v. Muhammed Zaman, 52 I.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. Therefore, we are unable to hold that the impugned rules are ultra vires s. 3 3 (1) of the Bombay Police Act insofar as they require prior permission for holding meetings. This takes us to points, (2) and (3) mentioned above. It is not surprising that the Constitution-makers conferred a fundamental right on all citizens 'to assemble peaceably and without arms'. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Art. 19(3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in Railway, Board v. Narinjan Singh, [1969] 3 C.R 548, 554 that there is no fundamental right for any one to hold meetings in government premises. It was observed "The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be used for this purpose, for we cannot imagine the officer referring to the marginal note of the section and then deciding that his discretion is limited, specially as the marginal note ends with 'etcetera'. It is also too much to expect him to look at the scheme of the Act and decide that his discretion is limited. We may in this connection refer to Cox v. Louisians(13 L.Ed. 2d.471; 486 paras 15,16,17). After starting that "from all evidence before us it appears that the authorities in Baton Rouge, permit or prohibit parades or street meetings in their completely uncontrolled discretion" it was observed "This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor. See Saia v. New York, supra, 334 US at 562, 92 Led at 1578. Also inherent in such a system allowing parades or meetings only with the prior permission of an official is the obvious danger to the right of a person of group not to be denied equal protection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. Rule 14 and Rule 15 deal both with processions and public meetings. Nothing we have said affects the validity of these two rules as, far as processions are concerned. In view of this conclusion it is not necessary to decide the other points raised by the learned counsel for the appellants. A number of other American cases were referred to in the course of arguments but we do not find it useful to refer to an of them in detail. It is, however, interesting to note that in the United States of America the right to use streets and parks And public places "has from ancient time been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." (vide Roberts, J., in Hague v. C.I.O. (83 L. Ed. 1423 at 1436-37)]. This passage was cited with approval in Shuttlesworth v. Birmingh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and prescribing in the case of processions, the routes by which, the order in which and the times at which the same may pass;" Rule 7 of the Rules framed by the Commissioner of Police under s. 33 (1) (o) provides : "7. No public meeting with or without loud- speaker, shall be held on the public street within the jurisdiction of the Commissionerate of Police, Ahmedabad City unless the necessary permission in writing has been obtained from the, officer authorised by the Commissioner of Police." The appellant submitted that S. 33(1)(o) did not empower the Commissioner or the District Magistrate to frame a rule requiring a person to obtain prior permission for conducting a public meeting on a public street, as such a rule would imply that the Commissioner or the District Magistrate has power to refuse permission for. holding such a meeting as a power to permit 28 5 normally implies a power not to permit and so, the rule is bad. (It was under rule 7 that the Commissioner refused permission to hold meetings on the 4th and 5th September, 1969). What the sub-section provides is making of rules for 'regulating' the conduct and behaviour, or action of persons c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context here does not compel such a reading. Rule 7 is, therefore, ultra vires the sub- section. Even if the rule is ultra vires the sub-section the appellant will not be entitled to hold public meetings on the street in question unless the appellant has the right in law to do so. It was, therefore, argued on behalf of the appellant that every citizen has the fundamental right to hold public meetings on a public street. The respondents, however, submitted that, in India, the law is, that there is no right, let alone a fundamental one, to hold public meeting on public street. In Saghir Ahmmad v. The State of U.P. and others, [1965] 1 S.C.R. 707, 715 this Court said : "According to English law, which has been applied all along in India, a highway has its origin, apart from statute,, in dedication, either express or implied, by the owner of the land of a right of passage over it to the public and the acceptance of that right by the public". The only right acquired by the public is a right to pass and repass it at their pleasure for the purpose of legitimate travel. Ex-parte Lewis, (1888) Law Reports 21 Q.B.D. 191 Wills, J. speaking for- the Court said "A claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. xvi, p. 355) Moreover, it is not necessary to prove that any one has been obstructed; the placing of obstructions on a public road or street in a manner calculated to create an obstruction to traffic is an offence although no person or carriage may have been actually obstructed. In Gill v. Carson and IV Nield, [1917] 2 K.B. 674, 677 Viscount Reading, C.J. said "In my judgment it is not necessary to prove that a person has been actually obstructed, it is quite sufficient to prove circumstances from which the justices can conclude that in the ordinary course persons may be obstructed, and that the actual use of the road was calculated to obstruct even though no person was proved to have been obstructed." Applying these rules to the special facts of a public meeting in the highway, it would appear that such a meeting, however reasonable and desirable its purposes may be, is a nuisance if it causes any appreciable obstruction, and that it is not necessary to prove that in fact, any one has been prevented from passing. In De Morgan v. Metropolitan Board of Works, [1880] 5 Q.B.D. 155, 157 it was held that although there is a widespread belief that the general public has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is, the right of all men to come together in a place where they may lawfully assemble for any lawful purpose, and especially for political discussion-is confounded with the totally different and falsely alleged right of every man to use for the purpose of holding a meeting any place which in any sense is open to the public. The two rights, did they both exist, are essentially different, and in many countries are regulated by totally different rules. It is assumed again that squares, streets, or roads, which every man may lawfully use, are necessarily available for the holding of a meeting. The assumption is false. A crowd blocking up a highway will probably be a nuisance in the legal, no less than in the popular sense of the term, for they interfere with the ordinary citizen's right to use the locality in the, way permitted to him' by law. Highways, indeed, are dedicated to the public use, but they must, be used for passing and going along them, and the legal mode of use negatives the claim of politicians to use a highway as a forum, just as it excludes. the claim of actors to turn it into an open air theatre. The crowd who collect, and the persons who cause a crowd, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble space is left if a part of the highway actually used by passengers is obstructed. But, and this is most important, in the case of a procession, the test is whether in all the circumstances such a procession is a reasonable user of the highway, and not merely whether it causes an obstruction. Thus to take an obvious illustration, the temporary crowding in a street occasioned by people going to a circus or leaving it is not a nuisance, for if such a temporary obstruction were not permitted then no popular show, could ever be held" (see Goodhart, Public Meetings and Processions, Cambridge Law Journal (1936-38), 6, 171. The distinction between the use of a highway to hold a public meeting and the use of it to conduct procession thereon is pointed out by the author and he takes the view that no person has a right to use a highway for holding public meeting even though no nuisance is created. According to him, under the law, a person can use a highway for the purpose for which it has been dedicated i.e., to pass and repass and any other unlicensed use, however desirable it may be from other standpoints, is legally wrongful. In Lowdens v. Keaveney, (1903) 2 I.R. 82 Gibson, J. sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the 'natural' places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre- Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore., the State or Municipality can constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ambit and reach of those rights in the United States to determine their content and range in India. On closer analysis, it will be found that the basis of Justice Roberts' Dictum in Hague v. C.I.O.( 307 U.S. 496) is the continued de facto exercise of the right over a number of years. I think the same reasoning can be applied here. The power of the appropriate authority to impose reasonable regulation in order to assure the, safety and convenience of the people in the use of public highways has never been regarded as inconsistent with the fundamental right of assembly. A system of licensing as regards the time and the manner of holding public meetings on public street has not been regarded as an abridgement of the fundamental right of public assembly or of free speech. But a system of licensing public meeting will be upheld by Courts only if definite. standards are provided by the law for the guidance of the licensing authority. Vesting of unregulated discretionary power in a licensing authority has always been considered as bad [see the cases on the point discussed in the concurring opinion of Justice Frankfurter in Niemotko v. MarylaNd (340 US. 268)]. If there is a fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner to justify a refusal. We are, however, also concerned with the validity of Rule 7 which may be relied upon for future refusals or grants of permission which will, it is urged, effect the petitioner's rights. There is doubt that a "public street", as it is commonly understood, is really dedicated for the use of the public for the purpose of passing, and repassing on it and not for any other purpose. In this respect, it appears to me that the law in this country, as laid down by this Court in Saghir Ahmad v. State of U.P.( AIR 1954 S.C. 720) and the Municipal. Board, Manglaur v. Sri Mahadeoji Maharaj ([1965] S.C.R. p. 242), is not different from the Law in England found stated in Halsbury's Laws of England (Halsbury's Laws of England 'Third Edn. Vol, 19, p. 73) , as follows : "The right of the public is a right to 'pass along' a highway for the purpose of legitimate travel, not to 'be on' it, except so far as their presence is attributable to a reasonable and proper user of the highway as such". A right to use a public highway for the purpose of carrying on transport business or other forms of trade such as hawki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if such a right had been set up, it could only be adjudicated upon satisfactorily in a civil suit. No doubt Dicey's Law of the Constitution (10th Edn. p. 271- 272) contains a passage which deals with the right of a subject to pass. through a highway and to proceed to "a common" together with others in procession and to hold a public meeting, for political or other purposes without obtaining the prior permission of any authority to exercise such a right. I am, however, unable to read into this passage the further right of holding a public meeting on a highway or public street. It seems to me that what is referred to there is only the right to pass through a public thoroughfare in order to proceed to and hold a meeting on "a common". There may be a right of using "a common" for the purpose of holding public meetings by custom. In the Appendix to Dicey's "Law of the Constitution(), the position under the English law is stated very clearly as follows "Does there exist any general right of meeting in public places" The answer is easy. No such right is known to the Law of England. "........ But speaking in general terms the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng" signified the mere meeting of one citizen with another it could be said that such a meeting of many citizens on a particular portion of a public highway is included within reasonable user of the public highway for the purpose for which it was dedicated so long as it does not interfere unreasonably with similar rights of others. The term "public meeting", however, is generally used for a gathering of persons who stand or take their seats at a particular place so as to be addressed by somebody who is heard by or expresses the feelings of the persons assembled. If the term "meeting" were really confined to what may be called a moving assembly or procession a right to hold it could be comprehended within the right to take out a procession which should, it seems to me, be distinguished from what is commonly understood as a right to hold a public meeting. Such a meeting, if held on a highway, must necessarily interfere with the user of the highway by others who want to use it for the purpose for which the highway must be deemed to be dedicated. It is true that there is a well recognised right of taking out processions on public thoroughfares in this country a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes beyond the scope of the rule making power given by Section 3 3 ( 0) inasmuch as a stationary assembly, as a public meeting must necessarily be so long as the assembly last, could not reasonably be within the purview of Sec. 33(O) of the Act. But, the definition of the public street in Section 2, sub. s. 15 of the Act lays down : 2(15) "Street" includes any highway, bridge, way over a causeway, viaduct, arch, quay or wharf or any road, lane, foot way, square, court, alley or passage accessible to the public, whether a thoroughfare or not". If we bear this definition in mind, it would appear that the public could conceivably hold a meeting at a place falling under this definition of a street. If this is so, could the Commissioner not be authorised to regulate it in the manner contemplated by Rule 7 ? I think he could, provided there are sufficient safeguards against misuse of such a power. Rule 7 is so worded as to enable the Commissioner to give or refuse permission to hold a public meeting at a place falling within the definition of "a Street" without the necessity of giving reasons for either a refusal or a permission. It will, therefore, be poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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