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TMI Blog2012 (2) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 3. The effect of use of these expressions, in particular, was that the freedom of speech of press was considered absolute and free from any restrictions whatsoever. Shortly thereafter, as a result of widening of the power of judicial review, the US Supreme Court preferred to test each case on the touchstone of the rule of 'clear- and-present-danger'. However, application of this rule was unable to withstand the pace of development of law and, therefore, through its judicial pronouncements, the US Supreme Court applied the doctrine of 'balancing of interests'. The cases relating to speech did not simply involve the rights of the offending speaker but typically they presented a clash of several rights or a conflict between individual rights and necessary functions of the Government. Justice Frankfurter often applied the above-mentioned Balancing Formula and concluded that while the court has emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force....the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. (Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi) 6. In contradistinction to the above approach of the US Supreme Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(a). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(1)(a), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press. 11. In order to effectively consider the rival contentions raised and in the backdrop of the factual matrix, it will be of some concern for this Court to examine the constitutional scheme and the historical background of the relevant Articles relating to the right to freedom of speech and expression in India. The framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r deprivation of rights conferred by this Article must be fair, just and reasonable. The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that procedure and, consequently, the action taken thereunder. 14. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards - first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable. The concept of 'procedure established by law' changed its character after the judgment of this Court in the case of Maneka Gandhi v. UOI AIR 1978 SC 597, where this Court took the view as under: The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Directive Principles have been uplifted to the status of fundamental rights, for instance, the right to education. Though this right forms part of the Directive Principles of State Policy, compulsory and primary education has been treated as a part of Article 21 of the Constitution of India by the courts, which consequently led to the enactment of the Right of Children to Free and Compulsory Education Act, 2010. 19. Article 51A deals with the fundamental duties of the citizens. It, inter alia, postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to abjure violence. 20. Thus, a common thread runs through Parts III, IV and IVA of the Constitution of India. One Part enumerates the fundamental rights, the second declares the fundamental principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always be advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these parts. It is necessary to be clear abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right to freedom of speech and expression which a citizen or a group of citizens may assert. The State also has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise. In the case of S. Rangarajan v. Jagjivan Ram (1989) 2 SCC 574, this Court noticed as under: 45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases. 27. For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. (See: Chintamanrao and Anr. v. State of Madhya Pradesh AIR 1951 SC 118). 28. The courts must bear a clear distinction in mind with regard to 'restriction' and 'prohibition'. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a 'prohibition' is imposed, besides satisfying all the tests of a reasonable 'restriction', it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c order' and an activity which might be prejudicial to 'public order' may not necessarily affect 'security of the State'. Absence of 'public order' is an aggravated form of disturbance of public peace which affects the general current of public life. Any act which merely affects the security of others may not constitute a breach of 'public order'. 31. The expression 'in the interest of' has given a wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the rights guaranteed by Article 19(1) of the Constitution. 32. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51A are of relevant consideration. Article 51A requires an individual to abide by the law, to safeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others' right to person or reputation. Therefore, freedom of speech and expression is tolerated so long as it is not malicious or libellous, so that all attempts to foster and ensure orderly and peaceful public discussion or public good should result from free speech in the market-place. If such speech or expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right. 33. Every right has a corresponding duty. Part III of the Constitution of India although confers rights and duties, restrictions are inherent thereunder. Reasonable Regulations have been found to be contained in the provisions of Part III of the Constitution of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure., has empowered the District Magistrate, Sub- Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this Section exists and immediate prevention and/or speedy remedy is desirable. By virtue of Section 144A Code of Criminal Procedure., which itself was introduced by Act 25 of 2005, the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organizing or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of the public order. Section 144 Code of Criminal Procedure, therefore, empowers an executive authority, backed by these provisions, to impose reasonable restrictions vis-`-vis the fundamental rights. The provisions of Section 144 Code of Criminal Procedure. provide for a complete mechanism to be followed by the Magistrate concerned and also specify the limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the period by a notification in the Gazette but, only in cases of danger to human life, health or safety or where there is a likelihood of a riot or an affray. But the second portion of the Sub-section was declared violative of Article 19 in State of Bihar v. K.K. Misra (1969) S.C.R. 337. It may be pointed out here that disobedience of an order lawfully promulgated is made an offence by Section 188 of the Indian Penal Code, if such disobedience causes obstruction, annoyance or injury to persons lawfully employed. It is punishable with simple imprisonment for one month or fine of ₹ 200 or both. 25. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct is clear. As was pointed out in Babulal Parate case where two rival trade unions clashed and it was difficult to say whether a person belonged to one of the unions or to the general public, an order restricting the activities of the general public in the particular area was justified. 28....A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general the order may be questioned by appropriate remedies for which there is ample provision in the law. 39. In the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and Anr. (1973) 1 SCC 227, again a Constitution Bench of this Court, while dealing with a situation where a person seeking permission to hold a public meeting was denied the same on the ground that under another similar permission, certain elements had indulged in rioting and caused mischief to private and public properties, held Rule 7 framed under the Bombay Police Act, 1951 as being arbitrary and observed as under: ...It is not surprising that the Constitution m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of 'law and order' but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to 'public order'. Section 144 Code of Criminal Procedure. empowers passing of such order in the interest of public order equitable to public safety and tranquility. The provisions of Section 144 Code of Criminal Procedure. empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquility is not ultra vires the Constitution. 41. In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684, this Court, while observing that each person, whatever be his religion, must get the assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and the freedom of conscience, held more emphatically that the courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the authority did not exceed the bounds of proper state Police action, held as under: It is one thing to say that the Police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of arguments or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the Police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder couples with Petitioner's deliberate defiance of the Police officers convince us that we should not reverse this conviction in the name of free speech. 44. Another important precept of exercise of power in terms of Section 144 Code of Criminal Procedure. is that the right to hold meetings in public places is subject to control of the appropriate authority regarding the time and place of the meeting. Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an immi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimization by those in power. Normally, interference should be the exception and not the rule. 46. A bare reading of Section 144 Code of Criminal Procedure. shows that: (1) It is an executive power vested in the officer so empowered; (2) There must exist sufficient ground for proceeding; (3) Immediate prevention or speedy remedy is desirable; and (4) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person. 47. These are the basic requirements for passing an order under Section 144 Code of Criminal Procedure. Such an order 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, he may even take the assistance of concerned officers and armed forces for the purposes of dispersing such an assembly. Furthermore, the said officer has even been vested with the powers of arresting and confining the persons and, if necessary, punishing them in accordance with law in terms of Section 129 Code of Criminal Procedure. An order under Section 144 Code of Criminal Procedure. would have an application to an 'actual' unlawful assembly as well as a 'potential' unlawful assembly. This is precisely the scope of application and enforcement of an order passed under Section 144 Code of Criminal Procedure. 50. Having noticed the legal precepts applicable to the present case, it will be appropriate to notice, at this stage, the factual matrix advanced by each of the parties to the case before this Court. Version put forward by learned Amicus Curiae. 51. In 2008, Baba Ramdev was the first person to raise the issue of black money publically. The black money outside the country was estimated at total of ₹ 400 lakh crore or nearly nine trillion US Dollar. On 27th February, 2011, an Anti-Corruption Rally was held at Ramlila Maidan, New Delhi where mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 24th May, 2011, which reads as follows: With reference to your letter dated 23.05.2011, on the subject mentioned above. I have been directed to inform you that you are permitted dharna/satyagrah at Jantar Mantar on 04.06.2011 from 0800 hrs. to 1800 hrs. with a very limited gathering. 54. In furtherance to the aforesaid permission, it was clarified vide letter dated 26th May, 2011 informing the organisers that the number of persons accompanying Baba Ramdev should not exceed two hundred. 55. On 27th May, 2011, the DCP (Central District), on receiving the media reports about Baba Ramdev's intention to organize a fast unto death at the Yoga Training Camp, made further enquiries from Acharya Virendra Vikram requiring him to clarify the actual purpose for such huge gathering. His response to this, vide letter dated 28th May, 2011, was that there would be no other programme at all, except residential yoga camp. However, the Special Branch, Delhi Police also issued a special report indicating that Baba Ramdev intended to hold indefinite hunger strike along with 30,000-35,000 supporters and that the organizers were further claiming that the gathering would exceed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntar Mantar, of course, with a very limited number of persons. Despite the assurance given by Acharya Virendra Vikram, as noted above, the event was converted into an Anshan and the crowd at the Ramlila Maidan swelled to more than fifty thousand. No yoga training was held for the entire day. At about 1.00 p.m., Baba Ramdev decided to march to Jantar Mantar for holding a dharna along with the entire gathering. Keeping in view the fact that Jantar Mantar could not accommodate such a large crowd, the permission dated 24/26th May, 2011 granted for holding the dharna was withdrawn by the authorities. Certain negotiations took place between Baba Ramdev and some of the ministers on telephone, but, Baba Ramdev revived his earlier condition of time-bound action, an ordinance to bring black money back and the items missing on his initial list of demands. At about 11.15 p.m., it is stated that Centre's emissary reached Baba Ramdev at Ramlila Maidan with the letter assuring a law to declare black money hoarded abroad as a national asset. The messenger kept his mobile on so the Government negotiators could listen to Baba Ramdev and his aides. The conversation with Baba Ramdev convinced the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ki janta aati hai (Vacate the throne, for the people are here to claim it) . That very midnight, Emergency was declared in the country. Less than two years later, the ground was the venue for another Opposition rally that many political commentators describe as epoch- changing. In February 1977, more than a month before Emergency was lifted, Opposition leaders led by Jagjivan Ram - his first public appearance after quitting the Congress - Morarji Desai, Atal Bihari Vajpayee, Charan Singh and Chandrashekar, held a joint rally. That the Ramlila Ground provided an accurate barometer of the country's political mood in the 1960s and 70s can be gauged from the fact that in 1972, just around three years before the JP rally, Indira Gandhi addressed a huge rally here following India's victory over Pakistan in the Bangladesh war. In 1965, again at a time when the country was at war with Pakistan, it was from here that then Prime Minister Lal Bahadur Shastri gave the slogan 'Jai Jawan Jai Kisan'. According to Delhi historian, Ronald Vivian Smith, the Maidan was originally a pond which was filled up in the early 1930s so that the annual Ramlila could be shifted here from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to the 'threat perception of Police' and the 'Trust's perception', learned Amicus curiae has framed certain questions and has given record-based information as follows: (i) Crowd Peaceful and sleeping 6.1 The crowd entered the Ramlila Ground from one entrance without any hassle and co- operatively (see CD marked CD003163 of 23 minutes @ 17 minutes) Police was screening each and every individual entering the premises. On 04th June 2011 many TV new (sic) channel live coverage shows about two kilometer long queue to enter the Maidan not even a single was armed, lathi or baseball bats etc. (pg.8 Vol.2) 6.2 The crowd is already slept by 10.00-10.30 pm shown in newspaper photogrtaphs of 05.06.2011 (see pg.9 Vol.1 and Annexure R-9 Pg. 37-38, Vol.2) People requesting the Police with folded handed (Annexure R-9 Pg. 39 Vol.2) also recorded in CCTV camera's and in CD 004026 (marked is Item 19 pg. 39 Vol.10) (ii) Did the Police enter abruptly to rescind order and remove Baba Ramdev. 6.3 The CD marked CD 003163 of 23 minutes on Police entry and Baba Ramdev's reaction @ 10 minutes Baba requests that he should be arrested in the morning with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... woken up. (iv) The crowd was asleep. (v) The Police used lathis. (vi) The crowd also threw bricks. (vii) The Police used tear gas around that time. It is not clear what occurred first. (viii) Water cannon was also used by the Police. VII. Speech. 7.1 From the Videos of Zee News and ANI, it appears that Baba Ramdev (i) exhorted people not to fight with Police. (ii) arrest me in the morning with a warrant. (iii) requesting first the women then young boys and then the old to make a protective Kavach around him. 65. On these facts, it is the submission of learned amicus curiae that neither the withdrawal of permissions for Ramlila Maidan and Jantar Mantar nor the imposition of restriction by passing an order under Section 144 Code of Criminal Procedure. was for valid and good cause/reason. On the contrary, it was for political and mala fide reasons. The purpose was to somehow not permit the continuation of the peaceful agitation at any of these places and for that reason, there was undue force used by the Government. The entire exercise was violative of the rights of an individual. A mere change in the number of persons present and an apprehension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67. Besides these contradictions, another very material fact is that the Home Minister, Shri P. Chidambaram had made a press statement on 8th June, 2011, relevant part of which reads: A decision was taken that Shri Baba Ramdev would not be allowed to organise any protest or undertake any fast-unto-death at Ramlila ground and that if he persisted in his efforts to do so he would be directed to remove himself from Delhi. 68. Reference is also made to the statement of Minister of HRD Shri Kapil Sibal, who had stated that the Government can rein in if persuasion fails. 69. Further, the contention is that these averments/reports have not been denied specifically in any of the affidavits filed on behalf of the Government and Delhi Police. The above statements and contradictions in the affidavits filed by these highly placed Government officers should lead to a reasonable conclusion that the Police had only carried out the decision, which was already taken by the Government. In these circumstances, even if there was no direct evidence, the Court can deduce, as a reasonable and inescapable inference from the facts proved, that exercise of power was in bad faith. Reliance is pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he country and all such meetings have been peaceful and successful as well. Baba Ramdev had been travelling the length and breadth of the country explaining the magnitude of the problem of corruption and black money and failure of the Government to take effective steps. The anti-corruption movement had been at the forefront of the meetings held by Baba Ramdev at different places. Baba Ramdev is stated to have participated in a meeting against corruption at Jantar Mantar on 14th November, 2010 where more than 10,000 people had participated. Similar meetings were organized at Ramlila Maidan on 30th January, 2011 and 27th February, 2011, which also included a march to Jantar Mantar. None of these events were perceived by the Government as any threat to law and order and, in fact, they were peaceful and conveyed their theme of anti-corruption. On 4th May, 2011, Baba Ramdev had written a letter to the Prime Minister stating his intention to go on fast to protest against the Government's inaction against bringing back the black money. This was responded to by the Prime Minister on 19th May, 2011 assuring him that the Government was determined to fight with the problem of corruption a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should call off his fast. 74. On 4th June, 2011, from 5.00 a.m., the yoga camp was started at the Ramlila Maidan. This was also telecasted live on Astha TV and other channels. During the yoga camp, Baba Ramdev stated that he will request the Government to follow the path of Satya and Ahinsa aparigriha and he would make efforts to eradicate corruption from the country. He also informed that the black money should be brought back and he would perform Tapas for the nation in that Shivir. Thousands of people had gathered at the venue. The Police was present there all this time and the number of persons was already much in excess of 5,000. It is emphasized, in the affidavit of this Respondent, that as per the directions of the Police, only one entry and one exit gate were being kept open and this gate was manned by the Police personnel themselves, who were screening each and every person who entered the premises. There was no disturbance or altercation, whatsoever, and the followers of Baba Ramdev were peacefully waiting in queues that stretched for over two kilo meters. If the Police wanted to limit the number to 5,000, it could have easily stopped the people at the gate itself. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and without adequate warning. It is specifically denied that this order was served on any officer of the Trust. Around 12.30 a.m., more than 5000 Policemen (as stated in the notes of the Amicus. However, from the record it appears to be 1200 police personnel) had surrounded the tent while everyone inside it was sleeping. When asked by Baba Ramdev to furnish the arrest warrant, the Police refused to do so. Baba Ramdev requested all the sadhakas to maintain peace and ahinsa. 78. This Respondent also alleges that the Police disabled the public address system. Consequently, Baba Ramdev got off the stage and exhorted his followers to maintain peace and calm. There was an apprehension that the Police intended to kill Baba Ramdev and therefore, protective cordons were formed around Baba Ramdev. In order to gain access to Baba Ramdev, Police launched brutal attack on the crowd, including women. Use of teargas shells was also resorted to, causing a part of the stage to catch fire which could potentially have caused serious casualties. Policemen were also engaged in stone pelting and looting. This event lasted till 4.00 a.m. As a result several people including women received injuries. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round belongs to the Municipal Corporation of Delhi and the permission had duly been granted by the said Corporation for the entire relevant period. This permission had never been revoked by the Corporation and as such the Police had no power to evict the public from the premises of Ramlila Maidan. The Police had also granted a 'No Objection Certificate' (NOC) for holding the meeting and the withdrawal of the NOC is without any basis and justification. The purpose for granting of permission by the Police was primarily for the reason that: a. The Corporation had required such permission to be obtained; b. There should be no obstruction to the traffic flow; and c. There should be proper deployment of volunteers in adequate number. 83. None of the stated conditions, admittedly, had been violated and as such there was no cause for the Police authorities to withdraw the said permission. In fact, it is the contention on behalf of this Respondent that there was no requirement or need for taking the permission of the Police for holding such a function. Reliance in this regard is placed upon the judgment of this Court in the case of Destruction of Public and Private Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process, some of the persons lost their belongings and even suffered damage to their person as well as property. Neither was there any threat to public tranquility nor any other material fact existed which could provide adequate basis or material to the authorities on the basis of which they could take such immediate preventive steps, including imposition of the prohibitory order under Section 144 Code of Criminal Procedure. In fact, the order was passed in a pre-planned manner and with the only object of not letting Baba Ramdev to continue his fast at the relevant date and time. All this happened despite the full cooperation by Baba Ramdev. He had voluntarily accepted the request of the Police not to visit Jantar Mantar along with his followers on 4th June, 2011 itself. Everything in the Ramlila Maidan was going on peacefully and without giving rise to any reasonable apprehension of disturbance of public order/public tranquility. These orders passed and executed by the executive and the Police did not satisfy any of the essential conditions as postulated under Section 144 Code of Criminal Procedure. Police Version. 87. The Commissioner of Police, Delhi has filed various affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to accept the order and, in fact, exhorted his followers to stay back in Delhi and called for more people to assemble at Ramlila Maidan, which was already full. The verbal inputs received by the Joint Commissioner of Police indicated the possibility of further mobilisation of large number of people by the next morning. Ramlila Maidan is surrounded by communally hyper-sensitive localities. Late at night, crowd had thinned down to a little over 20,000. Since a large number of people were expected to gather on the morning of 5th June, 2011, the permission granted to the Trust was also withdrawn and prohibitory orders under Section 144 Code of Criminal Procedure. were issued. 92. In view of the above, the DCP considered it appropriate to immediately serve the order on Baba Ramdev requiring him and the people present to vacate the Ramlila Maidan. 93. According to these affidavits, Force was deployed to assist the public in vacating the Ramlila Maidan. Buses were deployed at gates and ambulances, fire tenders, PCR vans were also called for. Baba Ramdev refused to comply with the orders. On the contrary, he jumped into the crowd, asked women and elderly persons to form a cordon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior officers and no instructions are stated to have been received from the Ministry of Home Affairs, although the said Ministry was kept informed and apprised of the development from time to time. All this was done in the interest of public order, larger security concern and preservation of law and order. 97. Permission of Delhi Police is required by anyone planning to hold public functions at public places. Delhi Police, having granted such permission, was fully competent to revoke it as well as to pass orders under Section 144 Code of Criminal Procedure. The organizers of Respondent no.4 had misled the Police and the Special Branch report had clarified the situation on 30th May, 2011 that the intention was to hold indefinite hunger strike. It is stated that by the evening of 3rd June, 2011, only 5000 persons had arrived. It is the case of the Police that they had persuaded Baba Ramdev not to go to Jantar Mantar with his followers and, therefore, the dharna at Jantar Mantar was cancelled. It was the apprehension of the Police that the gathering would increase several folds by the next morning and that could raise a major law and order problem and there was a possible imminent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were cancelled and order under Section 144 Code of Criminal Procedure. was made. 99. On 25th July, 2011, another affidavit was filed by the Commissioner of Police stating that nearly 155 complaints in writing and/or through e-mail were received by the Police Station Kamla Market alleging beating by the Police, theft and loss of property i.e. belongings of the complainants, 13 out of them were duplicate, 11 anonymous and 35 e-mails were in the nature of comments. On investigation, only four persons responded to the notice under Section 91 Code of Criminal Procedure, but stated facts different from what had been noticed in the complaints. Some complaints were also being investigated in case FIR No. 45 of 2011 registered at the same Police station. 100. It is further the case, as projected during hearing, that probably one Smt. Rajbala, who was on the stage with Baba Ramdev, had fallen from the stage and became unconscious. This complaint was also received at the Police Station Kamla Market and was entered at para No. 26A dated 6th June, 2011. 101. Still, in another affidavit dated 20th September, 2011 filed on behalf of Respondent No. 3, it was specifically denied that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the other attendant circumstances seen in light of the inputs received from the intelligence agencies, the permission was revoked and the persons attending the camp at Ramlila Maidan were dispersed. 105. Even if for the sake of argument, it is taken that there were some stray incidents of Police excessiveness, the act best can be attributable to individual actions and cannot be treated or termed as an organizational brutality or default. 106. Individual responsibility is different from responsibility of the Force. Abuse by one may not necessarily be an abuse of exercise of power by the Force as a whole. The Police had waited for a considerable time inasmuch as the order withdrawing the permission was passed at about 9.30 p.m. and was brought to the notice of the representatives of Respondent No. 4 at about 10.30 p.m. and no action was taken by the Police till approximately 1 a.m. This was for the fact that the persons were sleeping and Police wanted them to disperse in a peaceful manner, but it was the stone pelting, the panic created by the organisers and the consequent stampede that resulted in injuries to some persons. The contention is also that the organizers are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , all the men and women, belonging to different age groups, who had come to Ramlila Maidan to participate in the Yoga Training Camp called as 'Nishulk Yoga Vigyan Shivir', were comfortably sleeping at the Ramlila Maidan, when suddenly at about midnight, the people were woken up. The Joint Commissioner of Police sought to serve the order revoking the permission granted to hold the said yoga camp and imposing Section 144 Code of Criminal Procedure., purportedly to curb any agitation at the Ramlila Maidan. There was commotion at the Ramlila Maidan. Persons who had suddenly woken up from sleep could not know where and how to go. It appears that Baba Ramdev did not receive the orders. However, some of the officials of the Bharat Swabhiman Trust were made aware of the orders. Thereafter, the Police made an attempt to disperse the gathering at about and after 1.00 a.m. on 4th/5th June, 2011. 110. They are stated to have resorted to use of teargas and lathi charge in order to disperse the crowd as they were unable to do so in the normal course. Since there was protest by the people and some violence could result, the Police used teargas and lathi charge to ensure dispersement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of such brutal force and atrocities against the large number of people gathered at Ramlila Maidan. In reply to the above notice, different affidavits have been filed on behalf of these authorities justifying their action. A notice was issued to Bharat Swabhiman Trust vide order dated 20th June, 2011. The application for intervention on behalf of Rajbala (now deceased) was allowed vide order dated 29th August, 2011. They filed their own affidavit. In order to ensure proper independent assistance to the Court, the Court also appointed an amicus curiae and Dr. Dhavan accepted the request of the Court to perform this onerous job. 114. Having taken into consideration the version of each party before this Court, I would now proceed to limn the facts and circumstances emerging from the record before the Court that led to the unfortunate incident of the midnight of 4/5th June, 2011. Without any reservation, I must notice that in my considered view, this unfortunate incident could have been avoided by proper patience and with mutual deliberations, taken objectively in the interest of the large gathering present at Ramlila Maidan. Since this unfortunate incident has occurred, I have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In furtherance to it, the Deputy Commissioner of Police, Central District had also issued a restricted circular as contingency plan. It is obvious from various letters exchanged between the parties that as on 3rd June, 2011, there had been a clear indication on behalf of the authorities concerned that Baba Ramdev could go on with his plans and, in fact, proper plans had been made to ensure security and Regulation of traffic and emergency measures were also put in place. As I have already indicated, there is nothing on record to show, if any information of some untoward incident or any other intelligence input was received by the authorities which compelled them to invoke the provisions of Section 144 Code of Criminal Procedure., that too, as an emergency case without any intimation to the organizers and without providing them an opportunity of hearing. The expression 'emergency' even if understood in its common parlance would mean an exigent situation (See Black's Law Dictionary - Twentieth Edn.); A serious, unexpected and potential dangerous situation requiring immediate action (See Concise Oxford English Dictionary - Eleventh Edn.). Such an emergent case must exist fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aphs, collectively annexed as Annexure-9 to the affidavit of Respondent No. 4, establish this fact beyond any doubt that all persons, at the relevant time, were peacefully sleeping. 120. According to the Police, on 4th June, 2011, Baba Ramdev had delivered a speech requesting people from various parts of the country to come in large number and join him for the Satyagrah. The order withdrawing the permission for holding a yoga shivir at the Ramlila Maidan was passed at 9.30 p.m. The Police reached the Ramlila Maidan in order to inform the representatives of Respondent No. 4 about the passing of the said order, after 10.30 p.m. At about 11.30 p.m., on the same date, the executive authority passed an order under Section 144 Code of Criminal Procedure. The Police officers came to serve this order upon the representatives of Respondent No. 4 much thereafter. The footages of the CCTV Camera Nos. 2, 3, 4, 7, 8, 9, 12, 15, 17, 18 and 32 show that even at about 1.00 a.m. in the night of 4th/5th June, 2011, people were sleeping peacefully. The Police arrived there and tried to serve the said order upon the representatives of Respondent No. 4 as well as asked for Baba Ramdev, who was state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge number of people were still present in the shamiana. According to the Police, brick batting started from one corner of the stage and it was only in response thereto, they had fired the teargas shells on and around the stage. In all, eight teargas shells were fired. According to the Police, they did not resort to any lathi charge and, in fact, they had first used water cannons. According to Respondent No. 4, the Police had first fired teargas shells, then lathi charged the persons present and never used water cannons. According to them, the Police even threw bricks from behind the stage at the people and the control room and it was in response thereto that some people might have thrown bricks upon the Police. 122. What is undisputable before this Court is that the Police as well as the followers of Baba Ramdev indulged into brick batting. Teargas shells were fired at the crowd by the Police and, to a limited extent, the Police resorted to lathi charge. After a large number of Police personnel, who are stated to be more than a thousand, had entered the Ramlila Maidan and woken up the persons sleeping, there was commotion, confusion and fear amongst the people. Besides that, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police records in this respect. Police arrangements had been made in furtherance to the arrangements planned by the Central District of Police, Delhi dated 2nd June, 2011. Copies of the Police log book have been placed on the file. As on 5th June, 2011 at about 1.28 a.m., a message was flashed that the whole staff of the concerned Police stations shall report to Police Station Kamla Market immediately. Then, an attempt was made to arrest Baba Ramdev and an apprehension was expressed that there could be some deaths. I may reproduce here the relevant messages from the Police log book to avoid any ambiguity: District Net Date Start Time Duration Call Detail 05.06.11 :22:53 :00:33 R.L. Ground Kamla market police men are beating the peoples Ph.971147860 W/Ct. Sheetal No.8174/PCR Transcription of Dm Net Dated 04.06.2011 from 200 hrs. to 000 hrs. Inform C-28, C-31, C-35, C-32 C-4 and C-5 That They Would Meet Me After 30 Min and The 4 Shos Will Bring About 20 Personnel Each From Their Transcript of DM Net Extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some casualities happened at RL Ground. Direct the ambulance. -1 L-100 Noted position at RL Ground :28 AM -1 L-100 Injured not Traceable. Cats ambulance also searching injured person. Wireless Log Diary Dt.4/5-6-2011 Time Call Detail AM L-100 Charge of O-33 taken by ASI VedPrakash 5150/PCR -33 -1 Note down that in RL Ground Police is beating the public persons. -1 -33 Road is blocked through barricades at Ajmeri Gate. We can't leave the vehicle without staff. Wireless Log Diary Dt.4/5-6-2011 (Shift Night Duty 8 PM to 8 AM) Time - 60 Call Detail :58 -60 -1 Police is misbehaving with Baba Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , thereafter, the Police acted with greater force and fired more teargas shells and even used lathis to disperse the crowd. 126. Another aspect reflecting the lacuna in planning of the Police authorities for executing such an order at such odd hour is also shown in the log book of the Police where at about 2.39 a.m., a conversation between two police officers has been recorded. As per this conversation, it was informed You call at cellphone and inform 24B that he will also talk and that gate towards JLN Marg which was to be opened is not open yet . Another conversation recorded at the same time was Then public will go at its own . 127. When the Police had decided to carry out such a big operation of evicting such a large gathering suddenly, it was expected of it to make better arrangements, to cogitate over the matter more seriously and provide better arrangements. 128. From the entries made in the Police log book, certain acts come to surface. Firstly, that there were inadequate number of water cannons, as admittedly, there were more than 15,000 persons present at the Ramlila Maidan and secondly, that the Police had started beating the people. Even the 88th Bn. of CRPF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acked from the stage side and she had suffered injuries and fell unconscious. 130. It is undisputed that Rajbala suffered injuries in this incident. The injuries as described in the medical records are as follows: Local Examination: 1. Reddish bluish discolouration below and behind Left ear another reddish blue discolouration In Lateral middle of neck on (L) Side present. 2. Reddish Bluish Colouration seen below behind (R) ear C 3. Large bluish discolouration present over Left buttock 4. Abrasion over Medical aspects of Left ankle. 5. Reddish discolouration over the flexor aspect of middle of Left forearm. 131. In addition, the medico legal case sheet of one Deepak recorded, alleged c/o assault while on hunger strike at Ramlila Maidan . He was vomiting, bleeding and had suffered injuries and was complaining of pain at cervical region and right thigh. Similar was the noting with regard to one Ajay. Both of them had gone to Dr. Ram Manohar Lohia Hospital and were not accompanied by the Police. A number of such medico legal case sheets have been placed on record with similar notings. I do not consider it necessary to discuss each and every medico legal enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged the people present at Ramlila Maidan. The factum of lathi charge by some of the police personnel is demonstrated in the photographs, footages of CCTV cameras as well as from the medical evidence on record. One Dr. Jasbir has filed an affidavit stating that he had made a call from his Cell Phone No. 9818765641 to No. 100 informing them of Police assaulting the persons present and the fact that he suffered injury as a result of lathi blows on his body. He had gone to Lok Nayak Hospital where he was medically examined. This medical record shows that he was assaulted by the Police in Baba Ramdev's rally where he sustained injuries. The injuries were described as contusion injuries, one of which, on the lumber region and was advised x-ray. Even in some of the other medical records produced before this Court, it has been recorded that injuries were caused by blunt objects. This will go to show that they were not the injuries caused merely by fall or simply stampede. The veracity of this affidavit was challenged on the ground that it has been filed belatedly and it was not supported by any other record. Both these aspects lose their significance because in the Police log book f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every person who entered the premises. There was no disturbance or altercation whatsoever and followers of Baba Ramdevji were peacefully waiting in queues that stretched for over two kilometers. If the Police wanted to limit the number of participants to 5000 or to any other number, they could easily have done so at the gate itself. However, they made no attempt to either curtail the entry of persons or to prevent the fast from proceeding. 138. Though an affidavit subsequent to this date has been filed on behalf of the Police, there is no specific denial or any counter version stated therein in this regard. This averment made in the affidavit of the Respondent No. 4 appears to be correct inasmuch as vide its letter dated 2nd June, 2011, while granting the permission for holding the rally at Ramlila Maidan, a condition had been imposed that all persons entering the Ramlila Maidan should be subjected to frisking and personal search. Furthermore, map of layout of the Ramlila Maidan filed by the learned amicus clearly shows that there was one public entry gate/public check-in, in addition to the two gates for the VIP check-in, which were towards the stage. The public entry was towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em and the same should be videographed. Warning on PA system prior to use of any kind of force is to be ensured and also videographed. I find that there is hardly any compliance to these terms of this Standing Order. 141. Use of water cannons by the Police is again a myth. As I have already noticed from the Police logbook there was only one water cannon available which was positioned at the VIP entrance. Furthermore, even the CCTV camera footages or the photographs do not show any use of water cannons. I see no reason for the Police for not making preferential use of water cannons to disperse the crowd even if they had come to the conclusion that it was an unlawful assembly and it was not possible to disperse the crowd without use of permissible force in the prescribed manner. 142. There is a serious dispute as to whether the teargas shells were fired in response to the brick-batting by the members of the assembly from behind the stage or was it in the reverse order. The photographs show that there was a temporary structure behind the stage where bricks were lying and the same were collected and thrown from there. The CCTV Camera No. 5 clearly shows that some members of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit, forty yards away from the crowd. A regular warning by the officer should be issued while firing the tear smoke shells, the speed of wind, area occupied by the crowd and the temper of the crowd, amongst others, should be taken into consideration. It states that apparently the object of use of force should be to prevent disturbance of peace or to disperse an unlawful assembly which threatens such disturbance. 144. Normally, it is not advisable to use tear smoke shells in an enclosure. They should be fired away from the crowd rather than into the crowd. Unfortunately, the guidelines and even matters of common prudence have not been taken into consideration while firing the teargas shells. The Police Force and, at least, some members of the Police Force, have failed to execute the orders in accordance with the standing orders and have failed to take various steps that were required to be taken including use of minimum force, videography of the event, display of banner, announcement into the PA system etc. Similarly, some members of the Force when incited by provocation or injury, used excessive force, including use of teargas. It is also clear from the photographs and the CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining the law and order. It appears that firing of teargas shells in the direction of the crowd was contrary to the guidelines and it led to some people getting breathless and two of them falling unconscious. This also prevented the people present there from reaching the exit gates. Similarly, some of the followers of Respondent No. 4 became unruly and used smoke to create a curtain in front of themselves, before they started throwing bricks at the Police. In the process, they injured their fellow participants as well as the Police personnel. The teargas shells also caused fire on the stage, as is demonstrated in CCTV camera No. 31 at about 2.22 a.m., and confirmed by various news report footages. It shows that there was lack of fire extinguishing systems. The teargas shells also caused fire in an enclosure with cloth material which could have caught fire that might have spread widely causing serious bodily injuries to the people present. Undoubtedly, large Police force was present on the site and even if it had become necessary, it could have dispersed the crowd with exercise of greater restraint and patience. 148. The Police Force has failed to act in accordance with the Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed, on behalf of the Police, upon the fact that the representatives of Respondent No. 4 had not given the correct information to the Police. This again does not describe the correct state of affairs. The Intelligence Agencies had given all requisite information to Delhi Police and after taking the same into consideration, Delhi Police had passed orders on 2nd and 3rd June, 2011 requiring the organizers to take certain precautionary steps. Another interesting fact, that I must notice, is that as early as on 20th May, 2011, representatives of Respondent No. 4 had written to the Additional Commissioner of Police vide Annexure R3 informing them that Baba Ramdev is going on a hunger strike till death from 4th June, 2011 against the issue of corruption and other related serious issues. Hundreds of satyagrahis were providing their support to him in this hunger-strike and consent for that was asked. The letter written by Baba Ramdev to the Prime Minister of the country had also been attached along with this letter. The Police was aware of the number of persons who might assemble and the activity that was likely to be carried on at Ramlila Maidan as well as Jantar Mantar. Still, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in noticing that they have failed to discharge this onus. This decision, whether taken by the Police itself or, as suggested by the learned amicus, taken at the behest of the people in power and the Ministry of Home Affairs, was certainly amiss and a decision which is arbitrary and unsustainable, would remain so, irrespective of the number of persons or the hierarchy of the persons in the Government who have passed the said decision. I find no error with the Police, to working in tandem or cooperation with the Ministry of Home Affairs, which itself is responsible for maintaining the law and order in the country. I also have to notice that as per the stand taken by all the parties before this Court, it remains a fact that no announcement was made on the midnight of 4th/5th June, 2011 to the huge gathering sleeping to disperse peacefully from the Ramlila Maidan. It was an obligation of the Police to make repeated announcements and help the people to disperse. The Police, admittedly, did not make any such announcements because it anticipated a backlash. Baba Ramdev and other representatives of Respondent No. 4 also did not make such an announcement, but Baba Ramdev asserted that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every citizen of the country is protected. Safety of his person and property is the obligation of the State and his right. In view of the affidavit filed by the Police Commissioner, where he has owned the entire responsibility for the entire Police hierarchy, I do not propose to attach much significance to this contention. According to the Commissioner, he informed the Additional Secretary in the Ministry of Home Affairs of the developments and the latter might have informed the higher authorities in the said Ministry. I also find no need to enter into this controversy because there is no legal impediment or infirmity in Delhi Police working in coordination and consultation with the Ministry of Home Affairs as none of them can absolve themselves of the liability of maintaining social order, public tranquility and harmony. 155. Mr. P.H. Parekh, learned senior advocate appearing for the Government of NCT Delhi, submitted that the power to issue an order under Section 144 Code of Criminal Procedure. is vested in the Assistant Commissioner of Police in terms of notification dated 9th September, 2010 issued by the Ministry of Home Affairs, Government of India under Sub-section(1)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing a direction requiring a person to abstain from doing certain acts or take certain actions/orders with respect to certain properties in his possession, if the officer considers that such an order is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person. On the bare reading of the language of Section 144 Code of Criminal Procedure., it is clear that the entire basis of an action under this Section is the 'urgency of the situation' and the power therein is intended to be availed for preventing 'disorder, obstruction and annoyance', with a view to secure the public weal by maintaining public peace and tranquility. In the case of Gulam Abbas v. State of Uttar Pradesh AIR 1981 SC 2198, the Court clearly stated that preservation of public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive. In a given situation, a private right must give in to public interest. 157. The Constitution mandates and every Government is constitutionally committed to the idea of socialism, secularism and public tranquility. The regulatory mechanism contemplated under different laws is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eping in view the facts and the attendant circumstances, the Deputy Commissioner of Police (Central District) vide his letter dated 1st June, 2011, informed the office bearers of respondent No. 4 that in view of the current scenario and the law and order situation prevailing, they were required to make adequate arrangements for screening of people visiting the Ramlila Maidan for yoga shivir and directed further arrangements to be made as per the instructions contained in that letter. It was noticed in the letter of the DCP that a specialized tent of an area of 2,50,000 sq. ft. was to be erected, a dais was to be constructed and structures erected were to be duly certified from the authorized agency. It was also, inter alia, stated that no provocative speech or shouting of slogan should be allowed and no fire arms, lathis or swords should be allowed in the function and CCTV cameras should also be installed. It was further stated that the Trust was to abide by all the directions issued by the SHO. Again, on 2nd June, 2011, a letter was written by the Deputy Commissioner of Police noticing certain drawbacks in the arrangements made by the Trust and reiterating the directions passed vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Light, Ramlila Maidan etc. and concluded as under: Therefore, a sharp vigil, adequate arrangements by local police, PCR, Traffic Police are suggested at and near Ramlila Ground, R.S. Fly-over, enroute, Jantar Mantar to avoid any untoward incident. Further, Delhi-UP/Haryana Borders need to be sensitized. 162. As is obvious from the above letters and the reports, nobody had suggested cancellation of the permission granted by the land owning authority or the Police for continuation of the activity by Respondent No. 4, though they were aware of all the facts. The Central District of Delhi Police, on 2nd June, 2011 itself, noticed all the factors and made a report with regard to the Police arrangements at the Ramlila Maidan. Amongst others, it stated the following objectives: 1. All the persons will gain entry through DFMDs. 2. Every person will be searched/frisked thoroughly to ensure the security of VIPs/high dignitaries, Govt. property and general public etc. 3. To ensure clear passage to VIPs and their vehicles with the assistance of traffic police. 4. To ensure that the function is held without interruption. 5. To keep an eye on persons moving in suspicious cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y date, an order under Section 144 Code of Criminal Procedure. was passed. The order recited that an information had been received that some people, groups of people may indulge in unlawful activities to disturb the peace and tranquility in the area of Sub- Division Kamla Market, Delhi and it was necessary to take speedy measures in this regard to save human life, public order safety and tranquility. This order was to remain in force for a period of 60 days from the date of its passing. 167. During the course of hearing, it was pointed out before this Court that the order withdrawing the permission was passed at 9.30 p.m. At 10.30 p.m., the Police went to inform the representatives of Respondent No. 4 about the withdrawal of permission and subsequently an order under Section 144 Code of Criminal Procedure. was passed at about 11.30 p.m. The Police force arrived at the site at about 1.00 a.m. and the operation to disperse the crowd started at 1.10 a.m. on the midnight of 4th/5th June, 2011. 168. It was contended by Mr. Harish Salve, learned senior Counsel, that the decision to withdraw permission is an administrative decision taken with political influence. The Police is to wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on exercise of a fundamental right by Respondent No. 4 and persons present therein by withdrawing the permissions granted and enforcing dispersal of the gathering at the Ramlila Maidan at such odd hour. At this stage, it will be useful for me to notice another aspect of this case. Baba Ramdev is stated to have arrived in Delhi on 1st June, 2011 and four senior ministers of the UPA Government met him at the Airport and attempted to persuade him to give up his Anshan in view of the Government's initiative on the issue that he had raised. Efforts were made to dissuade him from going ahead with his hunger strike on the ground that the Government was trying to find pragmatic and practical solution to tackle the agitated issue. Thereafter, as already noticed, a meeting of the ministers and Baba Ramdev was held at Hotel Claridges. However, this meeting was not successful and certain differences remained unresolved between the representatives of the Government and Baba Ramdev. Consequently, Baba Ramdev decided to continue with his public meeting and hunger strike. Emphasis has been laid on a Press Release from the Ministry of Home Affairs stating that a decision was taken that Baba Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 172. Another argument advanced on behalf of Respondent No. 4 by Mr. Ram Jethmalani is that the Order under Section 144, Code of Criminal Procedure. is a fraud upon law as it is nothing but abdication of its authority by Police at the command of the Home Minister, Mr. P. Chidambaram, as is evident from his above-referred statements. According to him, the Order under Section 144 Code of Criminal Procedure., on the one hand, does not contain material facts while on the other, issues no directions as contemplated under that provision. Further it is contended that the Intelligence inputs as communicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his, in turn, was communicated by Constable No. 8276 of the PCR to the Police Station. Similarly, on 5th June, 2011 at 3:22:53, another call was received by Constable Sheetal No. 8174 PCR from the phone of one Shri Chander Mohan stating that policemen were beating people in Ramlila Ground. These explanations may show that it were the messages received by the PCR vans from private people who had left Ramlila Ground but there is nothing on record to show that these messages or reports to the PCRs were false. In fact, such calls go to substantiate what has been urged by the learned amicus. The affidavits do not improve the case of the Police any further. As far as the question of mala fides is concerned, I have held that this action or order was not mala fide. 176. Another important aspect which had been pointed out during the course of hearing is that even the map annexed to this affidavit of the Police supports what has been stated on behalf of Respondent No. 4 that there was only one main entry and exit for the public. The VIP entrance and VVIP entrance cannot be construed as entrance for the common man. The other exits were not operational owing to commotion, goods lying, fire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r security of all concerned. Material facts, imminent threat and requirement for immediate preventive steps should exist simultaneously for passing any order under Section 144 Code of Criminal Procedure. 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. This, however, does not seem to further the case of the State at all inasmuch as, admittedly, when the order was passed and the Police came to the Ramlila Maidan to serve the said order, not even 15,000 to 20,000 people were stated to be present in the shamiana/tent. In these circumstances, it appears to me that it was not necessary for the executive author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own point of view in that behalf. As already noticed, according to the Police, Baba Ramev wanted to do Anshan, after the negotiations with the Government had failed, which was not the purpose for which the permission had been granted. There was a possibility of the number of persons swelling upto 50,000 or more. There could also be possibility of communal tension as well as a threat to Baba Ramdev's life. These apprehensions are sought to be dispelled by learned Amicus curiae stating that this protest/dharna/anshan is a right covered under the freedom of speech. The Ramlila Maidan has the capacity of 50,000, which number, admittedly, was never reached and the doubts in the minds of the authority were merely speculative. The security measures had been baffed up. Baba Ramdev had been given Z+ security and, therefore, all the apprehensions of the authorities were misplaced, much less that they were real threats to an individual or to the public at large. The perception of the Trust was that they were carrying on their anshan and yoga shivir peacefully, as law abiding citizens of the country. No complaint had ever been received of any disturbance or breach of public trust. The ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation, fact or event had occurred between 3rd and 4th June, 2011, which could be described as the determinative factor for the authorities to change their mind and pass these orders. I am unable to accept the contention of the Police that a situation had arisen in which there was imminent need to intervene instantly having regard to the sensitivity and perniciously perilous consequences that may result, if not prevented forthwith. 185. The administration, upon taking into consideration the intelligence inputs, threat perception, likelihood of disturbance to public order and other relevant considerations, had not only prepared its planned course of action but also declared the same. In furtherance thereto, the Police also issued directions for compliance to the organizers. The authorities, thus, had full opportunity to exercise their power to make a choice permitting continuation and/or cancellation of the programme and thereby prohibit the activity on the Ramlila Maidan. However, in their wisdom, they opted to permit the continuation of the agitation and holding of the yoga shivir, thereby impliedly permitting the same, even in the changed circumstances, as alleged. Quinon pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state such a proposition. It must be left to the discretion of the executive authority, vested with such powers to examine each case on its own merits. 188. Needless to repeat that an order under Section 144 Code of Criminal Procedure. affects the right vested in a person and it will not be unreasonable to expect the authorities to grant adequate time to implement such orders, wherever the circumstances so permit. Enforcement of the order in undue haste may sometimes cause a greater damage than the good that it expected to achieve. 189. If for the sake of arguments, I would accept the contention of the Police that the order withdrawing the permission as well as the order under Section 144 Code of Criminal Procedure. are valid and had been passed for good reasons, still the question remains as to whether the authorities could have given some reasonable time for implementation/enforcement of the directions contained in the order dated 4th June, 2011. It is undisputable and, in fact, is disputed by none that all the persons who had gathered in the tent at the Ramlila Maidan were sleeping when the Police went there to serve the order passed under Section 144 Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19(1)(a) and 19(1)(b) respectively with reference to the facts of the present case 191. The contention on behalf of Respondent No. 4 is that no law requires permission of the Police to go on fast and/or for the purposes of holding an agitation or yoga camp. The Police, therefore, had no power to cancel such permission. The law is clear that it is the fundamental right of the people to hold such agitation or morchas in the streets and on public land and the Police have been vested with no power to place any restriction, much less an unreasonable restriction, upon the exercise of such right. There is no statutory form provided for seeking permission of the Police before holding any such public meeting. While relying on the Constitution Bench judgment of this Court in the case of Himat Lal (supra), the contention is that the Police cannot be vested with unrestricted and unlimited power for grant or refusal of permission for holding such public functions. In fact, it is stated to be no requirement of law. In the alternative, the contention is that there was no condition imposed by the Police for grant of permission, which had been violated. Thus, there was no occasion or justificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no threat, much less an imminent threat, to disturb public order or tranquility justifying the withdrawal of permission. 194. I have already discussed that the term 'social order' has a very wide ambit which includes 'law and order', 'public order' as well as 'security of the State'. In other words, 'social order' is an expression of wide amplitude. It has a direct nexus to the Preamble of the Constitution which secures justice - social, economic and political - to the people of India. An activity which could affect 'law and order' may not necessarily affect public order and an activity which might be prejudicial to public order, may not necessarily affect the security of the State. Absence of public order is an aggravated form of disturbance of public peace which affects the general course of public life, as any act which merely affects the security of others may not constitute a breach of public order. The 'security of the State', 'law and order' and 'public order' are not expressions of common meaning and connotation. To maintain and preserve public peace, public safety and the public order is unequi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may be and they hold jurisdiction to enact laws in that regard. The Union or the State is expected to exercise its legislative power in aid of civil power, with regard to the security of the State and/or public order, as the case may be, with reference to Entry 9 of List I, Entry 1 of List II and Entries 3 and 4 of List III of the Seventh Schedule of the Constitution of India. 199. These are primarily the fields of legislation, but once they are read with the constitutional duties of the State under Directive Principles with reference to Article 38 where the State is to secure a social order for promotion of welfare of the people, the clear result is that the State is not only expected but is mandatorily required to maintain social order and due protection of fundamental rights in the State. 200. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of melas and public amusements, in the interest of public order, the general public or morality. Delhi Police has also issued a Standing Order 309 in relation to 'Regulation of processions and rallies' laying down the procedure for making application for grant of permission, its acceptance or rejection and the consequences thereof. This Standing Order also provides as to how the proceedings in furtherance to an order passed under Section 144 Code of Criminal Procedure. should be carried out. It further indicates that the entire tilt of the Regulation is to grant permission for holding processions or rallies and they need to be accommodated at the appropriate places depending upon the number of persons proposing to attend the said rally or meeting and the nature of the activity that they are expected to carry on. For instance, under clause (h), as the Parliament Street and Jantar Mantar cannot accommodate more than 5000 persons, if there is a larger crowd, they should be shifted to the Ramlila Ground and if the crowd is expected to be more than 50,000 and the number of vehicles would accordingly swell up, then it should be shifted to a park or another premises, which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fundamental emphasis is on prevention of situation which would lead to disturbance of public tranquility, however, action proposed to be taken should be one which itself is not likely to generate public disorder and disturb the public tranquility. It should be preventive and not provocative. The Police action in the present case led to a terror in the minds of members of the assembly and finally the untoward incident. 205. It is also true that a man on the spot and responsible for maintenance of public peace is the appropriate person to form an opinion as contemplated in law. But, here the onus was on the Police Authorities to show existence of such circumstances at the spot when, admittedly, all persons were sleeping peacefully. The courts have to realize that the rights of the organizers and other members of the Society had to be protected if a law and order situation was created as a result of a given situation. 206. The learned Solicitor General is correct in his submissions that the scope of the present suo moto petition is a limited one. But certainly it is not so limited that the Court would neither examine facts nor the law applicable but would accept the government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4, nor adjudicating any disputes between Baba Ramdev, on the one hand, and the Government, on the other. Within the scope of this Court's order dated 6th June, 2011, I would examine all the relevant facts and the principles of law applicable for returning the findings in relation to the interest of the large public present at the Ramlila Maidan in the midnight of 4th/5th June, 2011. 210. The learned Amicus also contended that the doctrine of limited judicial review would not stricto sensu apply to the present case. The case is not limited to the passing of an order under Section 144, Code of Criminal Procedure, but involves the larger issue of fundamental freedom and restrictions in terms of Article 19(1)(a) of the Constitution, as well as the interest of number of injured persons and Rajbala, the deceased. It is also his contention that there is a clear abdication of powers by the Police to the Ministry of Home Affairs. The order and action of the Police are patently unjustifiable. If the trajectories of two views, one of the Ministry and other of the Police point out towards the action being mala fide, be it so, the Court then should decide the action to be mala fide. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave an unguided discretion, practically dependent upon the subjective whims of the authority, to grant or refuse permission to hold public meeting on a public street. Unguided and unfettered power is alien to proper legislation and even good governance. The principles of healthy democracy will not permit such restriction on the exercise of a fundamental right. 213. The contention made by Mr. Ram Jethmalani, learned Senior Advocate, is that this judgment should be construed to mean that it is not obligatory or even a directory requirement to take permission of the Police authorities for holding such public meetings at public places. According to him the Police have no such power in law. I am not quite impressed by this submission. This argument, if accepted, can lead to drastic and impracticable consequences. If the Department of Police will have no say in such matters, then it will not only be difficult but may also be improbable for the Police to maintain law and order and public tranquility, safeguarding the interest of the organizers, the persons participating in such public meetings as well as that of the public at large. 214. I am bound and, in fact, I would follow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch permission can be justified on the basis that the said right is subject to reasonable restrictions. 218. Further, exercise of such rights cannot be claimed at the cost of impinging upon the rights of others. This is how the restriction imposed is to be regulated. Restriction to a right has to come by enactment of law and enforcement of such restriction has to come by a regulatory mechanism, which obviously would take within its ambit the role of Police. The Police have to perform their functions in the administration of criminal justice system in accordance with the provisions of the Code of Criminal Procedure. and the other penal statutes. It has also to ensure that it takes appropriate preventive steps as well as maintains public order or law and order, as the case may be. In the event of any untoward incident resulting into injury to a person or property of an individual or violation of his rights, it is the Police alone that shall be held answerable and responsible for the consequences as may follow in law. The Police is to maintain and give precedence to the safety of the people as salus populi supremo lex (the safety of the people is the supreme law) and salus republica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliberation. Responsibility of the Trust, Members of the Assembly, their status and duty. 223. Once an order under Section 144 Code of Criminal Procedure. is passed by the competent authority and such order directs certain acts to be done or abstains from doing certain acts and such order is in force, any assembly, which initially might have been a lawful assembly, would become an unlawful assembly and the people so assembled would be required to disperse in furtherance to such order. A person can not only be held responsible for his own act, but, in light of Section 149 Indian Penal Code, if the offence is committed by any member of the unlawful assembly in prosecution of a common object of that assembly, every member of such assembly would become member of the unlawful assembly. 224. Obedience of lawful orders is the duty of every citizen. Every action is to follow its prescribed course in law Actio quaelibet it sua via. The course prescribed in law has to culminate to its final stage in accordance with law. In that process there might be either a clear disobedience or a contributory disobedience. In either way, it may tantamount to being negligent. Thus, the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full 228. The individual guilty of contributory negligence may be the employee or agent of the claimant, so as to render the claimant vicariously responsible for what he did. There could be cases of negligence between spectators and participants in sporting activities. However, in such matters, negligence itself has to be established. In cases of 'contributory negligence', it may not always be necessary to show that the claimant is in breach of some duty, but the duty to act carefully, usually arises and the liability in an action could arise (Ref. Charlesworth Percy on Negligence, Eleventh Edition, Pages 195, 206). These are some of the principles relating to the award of compensation in cases of contributory negligence and in determining the liability and identifying the defaulter. Even if these principles are not applicable stricto sensu to the cases of the present kind, the applied principles of contributory negligence akin to these principles can be applied more effectively on the strength of the provisions of Section 149 India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall inform all the institutions of national life. 230. Article 51A requires the citizens of India to abide by the Constitution and to uphold the sovereignty and integrity of India. Article 51A(i) requires a citizen to safeguard public property and to abjure violence. An order passed under Section 144 Code of Criminal Procedure. is a restriction on enjoyment of fundamental rights. It has been held to be a reasonable restriction. Once an order is passed under Section 144 Code of Criminal Procedure. within the framework and in accordance with the requirements of the said Section, then it is a valid order which has to be respected by all concerned. Its enforcement is the natural consequence. In the present case, the order was passed under Section 144 Code of Criminal Procedure. at about 11.30 p.m. whereafter the Police had come to Ramlila Maidan to serve the said order on the representatives of Respondent No. 4. The video and the footage of CCTV cameras played before this Court show that the officers of the Police along with the limited force had come to inform Baba Ramdev and/or the representatives of Respondent No. 4 about the passing of the said order, but they did not receive t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mdev certainly should have been concerned about the welfare of their followers and the large gathering present at the Ramlila Maidan. Thus, to that extent, the Police and Respondent No. 4 ought to have acted in tandem and ensured that no damage to the person or property should take place, which unfortunately did not happen. Keeping in view the stature and respect that Baba Ramdev enjoyed with his followers, he ought to have exercised the moral authority of his office in the welfare of the people present. There exists a clear constitutional duty, legal liability and moral responsibility to ensure due implementation of lawful orders and to maintain the basic rule of law. It would have served the greater public purpose and even the purpose of the protests for which the rally was being held, if Baba Ramdev had requested his followers to instantaneously leave Ramlila Maidan peacefully or had assured the Authorities that the morning yoga programme or protest programme would be cancelled and the people would be requested to leave for their respective places. Absence of performance of this duty and the gesture of Baba Ramdev led to an avoidable lacerating episode. Even if the Court takes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure. 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. (2) From the facts and circumstances that emerge from the record before this Court, it is evident that it was not a case of emergency. The police have failed to establish that a situation had arisen where there was imminent need to intervene, having regard to the sensitivity and perniciously perilous consequences that could have resulted, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the public. Such an exercise of power by the Police should be aimed at attainment of fundamental freedom rather than improper suppression of the said right. (5) I have held that the Respondent No. 4 is guilty of contributory negligence. The Trust and its representatives ought to have discharged their legal and moral duty and should have fully cooperated in the effective implementation of a lawful order passed by the competitive authority under Section 144 Code of Criminal Procedure. Due to the stature that Baba Ramdev enjoyed with his followers, it was expected of him to request the gathering to disperse peacefully and leave the Ramlila Maidan. He ought not have insisted on continuing with his activity at the place of occurrence. Respondent No. 4 and all its representatives were bound by the constitutional and fundamental duty to safeguard public property and to abjure violence. Thus, there was legal and moral duty cast upon the members of the Trust to request and persuade people to leave the Ramlila Maidan which could have obviously avoided the confrontation between the police and the members of the gathering at the Ramlila Maidan. (6) As difficult as it is to anticipate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the police authorities had acted in consultation with the Union Ministry as it is the collective responsibility of various departments of the State to ensure maintenance of law and order and public safety in the State. (11) Every person/body to whom such permission is granted, shall give an undertaking to the authorities concerned that he/it will cooperate in carrying out their duty and any lawful orders passed by any competent court/authority/forum at any stage of the commencement of an agitation/dharna/ procession and/or period during which the permission granted is enforced. This, of course, shall be subject to such orders as may be passed by the court of competent jurisdiction. (12) Even on the touchstone of the principle of 'in terrorem', I am of the view that the police have not acted with restraint or adhered to the principle of 'least invasion' with the constitutional and legal rights available to Respondent No. 4 and the members of the gathering at the Ramlila Maidan. (13) The present case is a glaring example of trust deficit between the people governing and the people to be governed. Greater confidence needs to be built between the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in brick-batting, have resorted to lathi charge and excessive use of tear gas shells upon the crowd, have exceeded their authority or have acted in a manner not permissible under the prescribed procedures, rules or the standing orders and their actions have an element of criminality. This action shall be taken against the officer/personnel irrespective of what ranks they hold in the hierarchy of police. b. The police personnel who were present in the pandal and still did not help the evacuation of the large gathering and in transportation of sick and injured people to the hospitals have, in my opinion, also rendered themselves liable for appropriate disciplinary action. c. The police shall also register criminal cases against the police personnel and members of the gathering at the Ramlila ground (whether they were followers of Baba Ramdev or otherwise) who indulged in damage to the property, brick-batting etc. All these cases have already been reported to the Police Station Kamla Market. The police shall complete the investigation and file a report under section 173 of the Code of Criminal Procedure. within three months from today. (17) I also direct that the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d freedom, guaranteed to our citizens as fundamental rights under the Constitution and the possible lawful restrictions that can be imposed for curtailing such rights. The legality of the order passed under Section 144 Code of Criminal Procedure. by the Assistant Commissioner of Police, Kamla Market, Central District, Delhi is also subject to legal scrutiny by me in these proceedings to find out as to whether the said order is in conformity with the provisions of Section 144 Code of Criminal Procedure. read with Section 134 there of and the Delhi Police Standing Order 309. 240. 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 dated 4.6.2011 are tentative which could have been challenged if they so desired before the appropriate forum in proper proceedings. Nonetheless, the reservations that I have about State Police action vis-`-vis the incident in question and my opinion on the curtailment of the right of privacy of sleeping individuals has to be expressed as it directly involves the tampering of inviolate rights, that are protecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent and is also coupled with the right to freedom and liberty which have been conferred under Article 21 of the Constitution of India. 246. The background in which the said assembly has gathered has already been explained in the judgment delivered by my learned brother and, therefore, it is not necessary to enter into any further details thereof. The fact remains that implementation of promulgated prohibitory orders was taken when the crowd was asleep. The said assembly per-se, at that moment, did not prima facie reflect any apprehension of eminent threat or danger to public peace and tranquillity nor any active demonstration was being performed at that dead hour of night. The Police, however, promulgated the order on the basis of an alleged information received that peace and tranquillity of that area would be disturbed and people might indulge in unlawful activities. The prohibitory order also recites that conditions exist that unrestricted holding of a public meeting in the area is likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquillity and in order to ensure speedy action for preventing any such danger to human life and saf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours preventing an individual from getting normal sleep, it also causes energy disbalance, indigestion and also affects cardiovascular health. These symptoms, therefore, make sleep so essential that its deprivation would result in mental and physical torture both. It has a wide range of negative effects. It also impairs the normal functioning and performance of an individual which is compulsory in day-to-day life of a human being. Sleep, therefore, is a self rejuvenating element of our life cycle and is, therefore, part and partial of human life. The disruption of sleep is to deprive a person of a basic priority, resulting in adverse metabolic effects. It is a medicine for weariness which if impeded would lead to disastrous results. 250. Deprivation of sleep has tumultuous adverse effects. It causes a stir and disturbs the quiet and peace of an individual's physical state. A natural process which is inherent in a human being if disturbed obviously affects basic life. It is for this reason that if a person is deprived of sleep, the effect thereof, is treated to be torturous. To take away the right of natural rest is also therefore violation of a human right. It becomes a vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficiency of reasons for such action. The incident in this litigation is an example of a weird expression of the desire of a tyrannical mind to threaten peaceful life suddenly for no justification. This coupled with what is understood of sleep hereinbefore, makes it clear that the precipitate action was nothing but a clear violation of human rights and a definite violation of procedure for achieving the end of dispersing a crowd. 252. Article 355 of the Constitution provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. Nonetheless, the very essence of constitutionalist is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution. (Vide: GVK Industries Ltd. and. Anr. v. Income Tax Officer and. Anr. (2011) 4 SCC 36; and Nandini Sundar and Ors. v. State of Chhatisgarh AIR 2011 SC 2839). 253. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India AIR 1971 SC 530, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to 'assure the dignity of the individual' and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as 'personal liberty' having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories. (Emphasis added) 258. The citizens/persons have a right to leisure; to sleep; not to hear and to remain silent. The knock at the door, whether by day or by night, as a prelude to a search without authority of law amounts to be police incursion into pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disturbing peace of others by using the amplifiers or beating the drums even in religious ceremonies. (Vide: Rabin Mukherjee . Ors. v. State of West Bengal and. Ors. AIR 1985 Cal. 222; Burrabazar Fireworks Dealers Association v. Commissioner of Police Calcutta AIR 1998 Cal 121; Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn. and. Ors. AIR 2000 SC 2773; and Forum, Prevention of Environment and Sound Pollution v. Union of India and. Ors. AIR 2006 SC 348). In the later judgment, this Court issued several directions including banning of using the fireworks or fire crackers except between 6.00 a.m. and 10.00 p.m. There shall no use of fire crackers in silence zone i.e. within the area less than 100 meters around hospitals, educational institutions, courts, religious places. 262. It is in view of this fact that, in many countries there are complete night curfews (at the airport i.e. banning of landing and taking off between the night hours), for the reason that the concept of sound sleep has been associated with sound health which is inseparable facet of Article 21 of the Constitution. 263. It may also be pertinent to mention here that various statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n immediate action. The sine qua non for an order under Section 144 Code of Criminal Procedure. is urgency requiring an immediate and speedy intervention by passing of an order. The order must set out the material facts of the situation. Such a provision can be used only in grave circumstances for maintenance of public peace. The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave. 269. The disobedience of the propitiatory order becomes punishable under Section 188 I.P.C. only if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed or if such disobedience causes or tends to cause damage to human life, health or safety or causes or tends to cause riot or affray . Disobedience of an order by public servant lawfully empowered will not be an offence unless such disobedience leads to enumerated consequences stated under the provision of Section 188 Indian Penal Code. More so, a violation of the propitiatory order cannot be taken cognizance of by the Magistrate who passed it. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts have been received indicating that such conditions now exist that unrestricted holding of public meeting, processions/demonstration etc. in the area is Iikely to cause obstruction to traffic, danger to human safety and disturbance of public tranquillity. (iii) and whereas it is necessary to take speedy measures in this regard to prevent danger to human life, safety and disturbance of public tranquillity. (iv) Now, therefore, in exercise of the powers conferred upon me by virtue of Section 144 Criminal Procedure Code 1973 read with Govt. of India, Ministry of Home Affairs and New Delhi's Notification No. U.11036/1/2010, (i) UTI, dated 09.09.2010. I Manohar Singh, Assistant Commissioner of Police, Sub-Division Kamla Market, Central District, Delhi do hereby make this written order prohibiting. xxx (vi) Any person contravening this order shall be liable to be punished in accordance with the provisions of Section 188 of the Indian Penal Code; and (vii) As the notice cannot be served individually on all concerned, the order is hereby passed ex-parte. It shall be published for the information of the public through the press and by affixing copies on the notice boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether for a simultaneous implementation and action under Section 144 Code of Criminal Procedure. without being preceded by an announcement or even otherwise, giving no time in a reasonable way to the assembly to disperse from the Ramlila Ground. To the contrary, the sleep of this huge crowd was immodestly and brutally outraged and it was dispersed by force making them flee hither and thither, which by such precipitate action, caused a mayhem that was reflected in the media. 276. An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third degree method which at times is sought to be justified as a necessary police action to extract the truth out of an accused involved in heinous and cold- blooded crimes. It is also a device adopted during warfare where prisoners of war and those invol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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