TaxTMI 
TaxTMI 
2012 (2) TMI 671
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....contemplated under Articles 19(2) and 19(3) respectively, I would also gauge the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973 (for short 'Code of Criminal Procedure.'). 2. It appears justified here to mention the First Amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the American Bill of Rights. This Amendment added new dimensions to this right to freedom and purportedly, without any limitations. The expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction. It reads as under: 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 absol....
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....stification must be isolated and weighted in each case. Although the First Amendment to the American Constitution provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time. In the case of Schenck v. United States 63 L ed 1173, the Court held: The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect 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 rig....
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..... Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a "basic human right", "a natural right" and the like. With the development 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 rel....
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....annot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder. (Ref.: State of West Bengal v. Subodh Gopal Bose AIR 1954 SC 92). 13. I consider it appropriate to examine the term 'liberty', which is subject to reasonable restrictions, with reference to the other constitutional rights. Article 21 is the foundation of the constitutional scheme. It grants to every person the right to life and personal liberty. This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established by law for 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 ....
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....ndamental protections available to any person/citizen. 17. While these are the guaranteed fundamental rights, Article 38, under the Directive Principles of State Policy contained in Part IV of the Constitution, places a constitutional obligation upon the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice - social, economic and political - shall inform all the institutions of the national life. Article 37 makes the Directive Principles of State Policy fundamental in governance of the country and provides that it shall be the duty of the State to apply these principles in making laws. 18. With the development of law, even certain matters covered under this Part relating to 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 5....
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....Such limitations, therefore, indicate two purposes; one that the freedom is not absolute and is subject to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. The legislature has to exercise these powers within the ambit of Article 19(2) of the Constitution. 22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the 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 o....
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....ction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row AIR 1952 SC 196 held: It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual 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....
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....The term 'social order' has a very wide ambit. It includes 'law and order', 'public order' as well as 'the security of the State'. The security of the State is the core subject and public order as well as law and order follow the same. In the case of Romesh Thappar v. State of Madras 1950 SCR 594, this Court took the view that local breaches of public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. This led to the Constitutional (First Amendment) Act, 1951 and consequently, this Court in the case of Dr. Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 stated that an activity which affects 'law and order' may not necessarily affect 'public 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....
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....ion for assertion of the right to freedom of speech and expression. In the case of Dr. D.C. Saxena v. Hon'ble the Chief Justice of India (1996) 5 SCC 216, this Court held: 31. If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and 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....
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.... regard, as discussed in the earlier part of this judgment, 'security of the state' is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of 'public order' and 'law and order'. However stringent may these restrictions be, they must stand the test of 'reasonability'. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution. 36. It is keeping this distinction in mind, the Legislature, under Section 144 Code of Criminal 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 Distric....
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....ar individual or to the public generally when frequenting or visiting a particular place. Under Sub-section (4) the Magistrate may either suo motu or on an application by an aggrieved person, rescind or alter the order whether his own or by a Magistrate subordinate to him or made by his predecessor in Office. Under Sub-section (5) where the magistrate is moved by a person aggrieved he must hear him so that he may show cause against the order and if the Magistrate rejects wholly or in part the application, he must record his reasons in writing. This Sub-section is mandatory. An order by the Magistrate does not remain in force after two months from the making thereof but the State Government may, however, extend 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 o....
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....High Court may prove illusory because before the High Court can intervene the mischief will be done. Therefore, it is submitted that an inquiry should precede the making of the order. In other words, the burden should not be placed upon the person affected to clear his position. Further the order may be so general as to affect not only a particular party but persons who are innocent, as for example when there is an order banning meetings, processions, playing of music etc. 27. The effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct 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 gen....
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.... local area and perhaps some other matters of public concern too. 'Public order' is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. This concept came to be illustratively explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (supra) wherein it was held that when two drunkards quarrel and fight, there is 'disorder' but not 'public disorder'. They can be dealt with under the powers to maintain 'law and order' but cannot be detained on the ground that they were disturbing 'public order'. However, where 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....
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....cept of orderly conduct leads to a balance for assertion of a right to freedom. In the case of Feiner v. New York (1951) 340 U.S. 315, the Supreme Court of the United States of America dealt with the matter where a person had been convicted for an offence of disorderly conduct for making derogatory remarks concerning various persons including the President, political dignitaries and other local political officials during his speech, despite warning by the Police officers to stop the said speech. The Court, noticing the condition of the crowd as well as the refusal by the Petitioner to obey the Police requests, found that the conduct of the convict was in violation of public peace and order 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 Poli....
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....t to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of the Code of Criminal Procedure., such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In the case of Dr. Praveen Bhai Thogadia (supra), 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 execut....
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....nces of a given case. 49. Once an order under Section 144 Code of Criminal Procedure. is passed, it is expected of all concerned to implement the said order unless it has been rescinded or modified by a forum of competent jurisdiction. Its enforcement has legal consequences. One of such consequences would be the dispersement of an unlawful assembly and, if necessitated, by using permissible force. An assembly which might have lawfully assembled would be termed as an 'unlawful assembly' upon the passing and implementation of such a preventive order. The empowered officer is also vested with adequate powers to direct the dispersement of such assembly. In this direction, 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 ....
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....011 stating his intention to go on a fast to protest against the Government's inaction in that regard. The Government made attempts to negotiate with Baba Ramdev and to tackle the problem on the terms, as may be commonly arrived at between the Government and Baba Ramdev. This process started with effect from 19th May, 2011 when the Prime Minister wrote a letter to Baba Ramdev asking him to renounce his fast. The Finance Minister also wrote a letter to Baba Ramdev informing him about the progress in the matter. 53. On 23rd May, 2011, Baba Ramdev submitted an application for holding a dharna at Jantar Mantar, which permission was also granted to him vide letter 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....
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....t of the Chief Minister, Delhi as stated by the officials including Police officers in the words: action would be taken if Baba Ramdev's Yoga Shivir turns into an agitation field and three-tier security arrangements have been made for the Shivir which is supported to turn into a massive satyagraha". Even Anna's campaign endorsed Baba Ramdev's step. In this background, on 4th June, 2011, Baba Ramdev's hunger strike began with the motto of 'bhrashtachar mitao satyagraha, the key demands being the same as were stated on 27th February, 2011. 58. As already noticed, Baba Ramdev had been granted permission to hold satyagraha at Jantar 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....
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....ssions. One on 'facts and pleadings' and the other on 'law'. I may now refer to some of the submissions made on facts and pleadings. 60. The Ramlila Maidan provided an accurate barometer of the country's political mood in 1960s and 1970s which can be gauged from an article dated 18th August, 2011 in the Times of India, which stated as under: It was in Ramlila Ground that Jai Prakash Narain along with prominent Opposition leaders, addressed a mammoth rally on June 25, 1975, where he urged the armed forces to revolt against Indira Gandhi's government. Quoting Ramdhari Singh Dinkar, JP thundered, "Singhasan khali karo, 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 Ramlil....
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....ent is exaggerated. (v) The numbers of people in the tent has varied but seems, according to the Police 20,000 or so at the time of the incident. But the Home Secretary suggests 60,000 which is an exaggeration. (vi) The logs etc supplied seem a little haphazard, but some logs reflect contemporary evidence which shows things to the courts notice especially. 63. However, it may be noticed by this Court that as per the version of the police, point No. (ii) ought to be read as under: The capacity for Ramlila Maidan is 50,000 but it limited Baba Ramdev's meet to 5000. 64. After noticing certain detailed facts in relation 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 n....
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....pede in one part of the enclosure 6.9 Newspaper the TOI gives the figure of 62 person injured and 29 of the injured were discharged during the day in LNJP hospital. What about those who were in other hospitals. Even there are many who failed to get recorded in the list of injured or to approach hospital for the medical aid. Only 62 injured that too without lathi charge. 6.9 It will also be (sic) demonstrate that (i) The crowd does not appear to be armed in anway - not even with 'baseball' bats. (ii) The Police (sic - personnel) were throwing bricks. (iii) Baba Ramdev was abruptly 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....
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....he Ministry of Home Affairs duly informed in such matters as the said Ministry, for obvious reasons, is concerned about the preservation of law and order in the capital and carefully monitors all situations dealing with public order and tranquility. From the affidavit of the Commissioner of Police, it is also clear that he was continuously in touch with the senior functionaries of the Ministry of Home Affairs and he kept them informed of the decisions taken by the ACP and DCP to revoke the permission and promulgate the prohibitory orders under Section 144 Code of Criminal Procedure. 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 th....
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....he Court to believe that it was a colourable and/or mala fide exercise of power. Version of Respondent No. 4: 72. Now, I may refer to the case put forward by Respondent No. 4, the President of Bharat Swabhiman Trust, Delhi Area who has filed affidavits on behalf of that party. At the outset, it is stated in the affidavits filed that Baba Ramdev, the Trust and his followers are law abiding citizens of the country and never had any intention to disturb the law and order, in any manner whatsoever. Various camps and meetings have been held by the Trust in various parts of the 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 2....
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....he MCD never asked the Trust to vacate the premises, i.e., Ramlila Maidan. 73. Before the fateful night i.e. 4th/5th June, 2011, it has been stated that Baba Ramdev had reached New Delhi and was received at the Airport by the Ministers. There, at the Airport itself, an attempt was made to persuade Baba Ramdev to call off his fast. Thereafter, a meeting was held at Hotel Claridges on 3rd June, 2011 wherein Baba Ramdev was assured that the Government would take concrete steps to bring back the black money from abroad and they would also issue an Ordinance, whereupon he 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 i....
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....at upon receiving this letter, you will end your tapa. We hope that you will honour this public commitment forthwith. 77. This letter, it is stated, was found to be vague and non- committal as it was not mentioned in this letter as to what concrete steps the Government would take to tackle this national economic and moral crises. At nearly midnight, by way of an unprecedented action, an order under Section 144 Code of Criminal Procedure. along with an order cancelling the permission granted earlier by the Police, was issued, illegally, without any justification 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 follow....
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....ts made by Respondent No. 4, the argument advanced by Mr. Ram Jethmalani, Senior Advocate, is that, in the earlier meetings, both at the Ramlila Maidan and Jantar Mantar, no untoward incident had occurred, which could, by any standard, cause an apprehension in the mind of the Police that there could occur an incident, communal or otherwise, leading to public disorder, in any way. The revocation of permissions as well as the brutality with which the gathering at the Ramlila Maidan was dispersed is impermissible and, in any case, contrary to law. The Ground 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 o....
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....e security. Thus, the Police could have easily controlled the number and manner of entry to the Ramlila Maidan as they desired. At no point of time there were more than 50,000 people present at the premises. On the contrary, in the midnight, when the Police used force to evict the gathering, there were not even 20,000 people sleeping in the tent. Lastly, it is also contended that the people at Ramlila Maidan were sleeping at the time of the occurrence. They were woken up by the Police, beaten and physically thrown out of the tents. In that 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 h....
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.... security of Baba Ramdev was upgraded to Z+ category vide order dated 3rd June, 2011 and a contingency plan was also drawn. On 4th June, 2011, despite assurances, the yoga training was converted into Anshan at about 1300 hrs. and Baba Ramdev decided to march to Jantar Mantar for 'Dharna' with the entire gathering, the permission for which was limited to only 200 people. Therefore, in view of the huge mass of people likely to come to Jantar Mantar, the said permission was withdrawn on 4th June, 2011. 91. Baba Ramdev refused 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 Proce....
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....the organizers acted as law abiding citizens and accepted the lawful directions of the Police. 96. Having stated that the teargas shelling and the other force was used as a response to the brick-batting and misbehavior by the gathering, it is also averred that the affidavit filed on behalf of Respondent No. 4 could not be relied upon as the person swearing it was admittedly not present at the venue after 10.30 p.m. on 4th June, 2011. All these actions are stated to have been taken by the Force in consultation with the senior 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 situ....
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....non-functional and recording of one could not be retrieved due to technical problems. Recording of eight cameras and two DVRs were not available as these equipments were reportedly stolen, as noted above. Thus, the recordings from only 41 cameras/DVRs were available. 98. The primary aim of MCD is to earn revenue from commercial use of land and it is for the Police to take care of the law and order situation and to regulate demonstrations, protests, marches etc. No eviction order was passed except that the permissions 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 bein....
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....ion earlier than when it was actually cancelled. 104. The right to freedom in a democracy has to be exercised in terms of Article 19(1)(a) subject to public order. Public order and public tranquility is a function of the State which duty is discharged by the State in the larger public interest. The private right is to be waived against public interest. The action of the State and the Police was in conformity with law. As a large number of persons were to assemble on the morning of 5th June, 2011 and considering 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 w....
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....ine the main issue in regard to the excessive use of force and brutality and absolute organizational default by the Police, if any. Findings on Incident of Midnight of 4th/5th June, 2011 and the Role of Police and Members/followers of Respondent No. 4 109. All National and Delhi Edition newspapers dated 5th June, 2011 as well as the media reports had reported the unfortunate incident that occurred on the midnight of 4th/5th June, 2011 at Ramlila Maidan in Delhi. On the night of 4th June, 2011, 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. Howev....
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....sent there, including Article 21 of the Constitution. 113. These events and the prima facie facts stated above, persuaded this Court to issue a suo moto notice vide its order dated 6th June, 2011. This notice was issued to the Home Secretary, Union of India, the Chief Secretary, Delhi Administration and the Police Commissioner of Delhi to show cause and file their personal affidavits explaining the conduct of the Police authorities and the circumstances which led to the 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 w....
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....t No. 3 made a very objective assessment of the entire situation and issued a detailed plan of action to ensure smooth functioning of the agitation/yoga camp at Ramlila Maidan without any public disturbance. The objectives stated in this planned programme have duly been noticed by me above. 116. All this shows that the authorities had applied their mind to all aspects of the matter on 2nd June, 2011 and had decided to permit Baba Ramdev to go on with his activities. 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 P....
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....t the Ramlila Maidan peacefully and without disturbing public order or public tranquility. After the day's proceedings, the large number of people who were staying at the Ramlila Maidan, went to sleep in the Shamiana itself where due arrangements had already been made for their stay. Beds were supplied to them, temporary toilets were provided and water tanks and arrangements of food had also been made. The footages of the CCTV cameras, videos and the photographs, 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 Co....
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....ly if people wanted and the God desires it.' Another significant part of Baba Ramdev's speech at that crucial time was that he urged the people not to have any confrontation with the Police and that he had no intention/mind to follow the path of hinsa or to instigate quarrel with the authorities. By this time, all persons present in the tent had already woken up and were listening to Baba Ramdev interacting with the Police. Some people left while a large 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 u....
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....condoned. They are the protectors of the society and, therefore, cannot take recourse to such illegal methods of controlling the crowd. There is also no doubt that large number of persons were injured in the action of the Police and had to be hospitalized. Element of indiscipline on behalf of the Police can be seen in the footage of the CCTV cameras as well as in the log book entries of the Police. 124. At this stage, it will be useful to examine the 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....
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.... Wireless Log & Diary Dt.4/5-6-2011 (Shift Night Duty 8 PM to 8 AM) Time Call Detail PM -10 Shift Change and charge taken by HC Umed Singh No.899/PCR am -1 -10 From 0-10 SI Jaspal PS Mangol Puri & Ct. Tarun 3036/DAP sustained injury and we are taking them to JPN Hospital. 2.10 -1 -10 -10 told that both SI Jaspal and Ct. Tarun admitted in JPN Hospital through Duty Ct. Ajay 1195/C. Wireless Log & Diary Dt.4/5-6-2011 (Shift Night Duty 8 PM to 8 AM) Time B - 11 Call Detail 2.30 AM Two injured persons taken to JPN Hospital namely Raj Bala w/o Jalbeer R/o Gurgaon, Age-54, Jagdish s/o AshaNand, Age-54 yrs. C50 C12D Both of vehicles is to be send, water canon is only one C12D C50 C50 Right now only one is asked about so send only one. C12D C50 Send one. Send one instantly. If other will be required it will be informed. 125. The above entries of the Police log book clearly show that a number of persons were injured, including Police personnel, and some of them even seriously. The water cannons were not available inside the tent and the same were asked to come towards the VIP gate. They we....
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....g dealt with this aspect, now I would proceed to discuss the injuries suffered and the medical evidence placed before the Court. As per the affidavit of the Police dated 17th June, 2011, total 38 Policemen were injured, some of them because of brick batting by the supporters of Baba Ramdev. 48 persons from public were also injured, 41 of them were discharged on the same date and 5 on the next day. Only 2 persons, including 1 woman, required hospitalization for medical treatment and surgery. On the other hand, according to Respondent No. 4, hundreds of persons were injured. However, they have placed on record a list of the injured persons as Annexure R -13 wherein names of 55 persons have been given. Most of the injured persons were taken to Lok Nayak Hospital, New Delhi. Copies of their medico legal enquiry register/reports have been placed on record. Some of these injured persons were taken to the hospital by the Police while some of them went on their own. In the medico legal enquiry register relating to Rajbala, it has been stated that she suffered cervical vertebral fracture and associated spinal cord damage. She was unable to move both limbs, upper and lower, and complained of....
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....so reported to Aruna Asif Ali Government Hospital, Rajpura, Civil Lines, Delhi and had given the history of being beaten by the crowd at Ramlila Maidan. 133. From these evidence placed on record, it is clear that both, the members of the public as well as the Police personnel, had suffered injuries. It is obvious from various affidavits, that a large number of followers of Baba Ramdev got injured. The number of these persons was much higher in comparison to that of the Police. I may also notice that in the affidavit filed by the Commissioner of Police, it has been stated that the Police officers suffered injuries because of brick batting by some members of the gathering at Ramlila Maidan. However, the affidavit of the Commissioner of Police is totally silent as to how such a large number of persons suffered injuries, including plain injuries, cuts, open injuries and serious cases like those of Rajbala and Jagat Muni. According to Respondent No. 4, at least five persons had suffered serious injuries including head injury, fracture of hand, leg and backbone. This included Dharamveer, Madanlal Arya, Jagdish, Behen Rajbala, Swami Agnivesh and Jagat Muni, etc. 134. If this medico lega....
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....t find support from the CCTV footages inasmuch as that no elderly lady at all is seen on the stage during the entire episode shown to the Court. But, the fact of the matter is that she suffered serious injuries which ultimately resulted in her death. It could be that she received injury during use of lathis by the Police or when the crowd rushed as a result of firing of teargas shells, etc. 136. The Police do not appear to have carried her on the stretcher or helped her in providing transportation to the hospital. Precisely who is to be blamed entirely and what compensation, if any, she is entitled to receive and from whom, will have to be examined by the court of competent jurisdiction before whom the proceedings, if any, are taken by the persons entitled to do so and in accordance with law. Certain disputed questions of fact arise in this regard and they cannot be decided by the court finally without granting opportunity to the appropriate parties to lead oral and documentary evidence, as the case may be. For the purposes of the present petition, it is sufficient for me to note that, prima facie, it was the negligence and a limited abuse of power by the police that resulted in i....
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....the version of the Police that they had issued prior warning, then used water cannons and only thereafter, used the teargas shells in response to the brick-batting by the members of the gathering present behind the stage. This stand of the Police does not inspire confidence. Firstly, it has nowhere been recorded in the CCTV footages that they made any public announcement of the revocation of the permissions and the passing of order under Section Code of Criminal Procedure. and requested the people present to leave the Ramlila Maidan. of course, it is clear from the record before this Court that effort was made by the Police officers, who had a talk with the representatives of Respondent No. 4 as well, for service of order on Baba Ramdev, who did not accept the order and jumped into the crowd in order to avoid the service of order as well as his exit from the Ramlila Maidan. The stand taken by the Police in para 24 of its affidavit is that they apprehended a backlash if they made the announcements themselves and, therefore, they approached the organizers to inform the public over the PA system. This itself is not in accordance with the Guidelines framed by the Police for execution ....
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....otographs. The firing of teargas shells created greater commotion and fear in the minds of the members of the gathering. The violence on the part of the Police increased with the passage of time and the Police retaliated to the bricks hurled at them by the members of the assembly with greater anger and force. This resulted in injuries to both sides and serious injuries to some of the people and resultant death of one of the members of the public. 143. The persons at the realm of affairs of the Police force have to take a decision backed by their wisdom and experience whether to use force or exercise greater control and restraint while dispersing an assembly. They are expected and should have some freedom of objectively assessing the situation at the site. But in all events, this would be a crucial decision by the concerned authorities. In the present case, the temptation to use force has prevailed over the decision to exercise restraint. Rule 14.56 of the Punjab Police Rules (which are applicable to Delhi) provides that the main principle to be observed is that the degree of force employed shall be regulated according to the circumstances of each case. The object of the use of for....
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.... such attack and they should have fired the teargas shells to the site from where the bricks were coming rather than in front and on the stage. Once the teargas shells were fired into the tent where large number of people were present, it was bound to result in injuries and harm to the public at large. If the authorities had taken the decision to disperse the crowd by use of teargas, then they should have implemented that decision with due care and precautions that they are required to take under the relevant guidelines and Rules. It was primarily the firing of the teargas shells and use of cane sticks against the crowd that resulted in stampede and injuries to a large number of people. 146. Admittedly, when the Police had entered the tent, the entire assembly was sleeping. It is not reflected in the affidavit of the Police as to what conditions existed at that time compelling the authorities to use force. This, in the opinion of the Court, was a crucial juncture and the possibility of requiring the members of the assembly to disperse peacefully in the morning hours was available with the authorities. 147. This certainly does not mean that throwing of bricks upon the Police by th....
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..... 4, as well as of Baba Ramdev in jumping from the stage into the crowd, while declining to accept the orders and implement them, is contrary to the basic rule of law as well as the legal and moral duty that they were expected to adhere to. Thus, they have to be held guilty of breach of these legal and moral duties as Injuria non excusat injuriam. 150. Now, I may have a look at the genuineness/validity of the 'threat perception' which formed the basis for passing of the said orders by the State/Police. I have referred to this aspect in some detail above and suffice it to note here that till 3rd June, 2011, none of the authorities had considered it appropriate to revoke the permission and pass an order under Section 144 Code of Criminal Procedure. On the contrary, the authorities had required the organizers to take more stringent measures for proper security. They had also drawn a proper deployment plan. It appears that failure of negotiations between the Government and Baba Ramdev at Hotel Claridges on 3rd June, 2011, left its shadow on the decision-making power of the Police. This proved to be the turning point of the entire episode. If the Police had apprehended that lar....
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....ly possibility or likelihood or tendency of a threat. It has not to be a mere tentative perception of threat but a definite and substantiated one. I have already recorded that none of the concerned authorities, in their wisdom, had stated that they anticipated such disturbance to public tranquility and social order that there was any need for cancellation of the permissions or imposition of a restriction under Section 144 Code of Criminal Procedure. as late as till 10.40 p.m. on 4th June, 2011, which then was sought to be executed forthwith. 151. There is a direct as well as implied responsibility upon the Government to function openly and in public interest. Each citizen of India is entitled to enforce his fundamental rights against the Government, of course, subject to any reasonable restrictions as may be imposed under law. The Government can, in larger public interest, take a decision to restrict the enforcement of freedom, however, only for a valid, proper and justifiable reason. Such a decision cannot be arbitrary or capricious. 152. Another important facet of exercise of such power is that such restriction has to be enforced with least invasion. I am unable to understand a....
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....the Ramlila Maidan. Thus, I cannot blame the entire Police Force in this regard. 154. The learned amicus raised another issue that the Home Secretary, Union of India and the Chief Secretary, Delhi had not filed proper affidavits in relation to the incident. In fact, the Home Secretary did not file any affidavit till this was raised as an issue by the Learned Counsel appearing for Respondent No. 4. Factually, it is correct. The affidavits filed by the Chief Secretary, Delhi as well as the Home Secretary are not proper in their form and content. The Home Secretary, on the one hand stated that he had taken charge of the post with effect from 21st July, 2011, while, on the other, admitted that he had received the report from the Special Commissioner of Police. He further stated that it is not the practice of the Ministry to confirm the grant of such permission. His affidavit is at variance with the affidavit of the Police Commissioner. According to him, the entry of large number of persons posed a threat to the gathering, such as, likely stampede and entry of unruly elements into the crowd. Both these circumstances, as noticed above, do not stand even remotely to reason. Further, I am....
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.... such Police measures which are to be taken with a view to keep the law and order situation under control. He also stated that it is not the practice of the Ministry to confirm the matters of grant of such permissions. I am unable to see any merit in these submissions or for that matter even the purpose of such submissions. The Ministry of Home Affairs, Delhi Government and the Police are not at cross purposes in relation to the questions of social order and law and order. It is their cumulative responsibility. The lists in the Seventh Schedule to the Constitution are fields of legislation. They are unconnected with the executive action of the present kind. The Ministry of Home Affairs, Union of India is not only responsible for maintaining the law and order but is also the supervisory and controlling authority of the entire Indian Police Services. It is the duty of the Union to keep its citizens secure and protected. Thus, I consider it unnecessary to express any view on this argument advanced by Mr. P.H. Parekh. The scope of an order made under Section 144 Code of Criminal Procedure., its implications and infirmities with reference to the facts of the case in hand 156. By refere....
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.... to the social needs by even overriding temporarily, private rights, keeping in view the public interest, is patently inbuilt in the provisions under Section 144 Code of Criminal Procedure. 158. Primarily, the MCD owns the Ramlila Maidan and, therefore, is holding this property as a public trustee. The MCD had given permission to use the Ramlila Maidan for holding yoga shivir and allied activities with effect from 1st June, 2011 to 20th June, 2011. The Police had also granted permission to organize the yoga training session at Ramlila Maidan for the same period vide its letter dated 25th April, 2011. The permission was granted subject to the conditions that there should not be any obstruction to the normal flow of traffic, sufficient number of volunteers should be deployed at the venue of the training camp, permission should be sought from the land owning agency and all other instructions that may be given by the Police from time to time should be implemented. Lastly, that such permission could be revoked at any time. 159. Vide letter dated 27th May, 2011, the Deputy Commissioner of Police, Central District, had sought clarification from the President of Respondent No. 4 that the....
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....issues: 1. To bring the black money worth Rs. for 400 lakhs crores, which is national property. 2. To demand the legislation of strong Lokpal Bill to remove corruption completely. 3. Removal of foreign governing system in independent India so that everyone can get social and economic justice. 160. It was further stated that the gathering may exceed 1 lakh. The letter also indicated that some of the workers would straightaway reach Jantar Mantar on 4th June, 2011 and would submit memorandum to the President and the Prime Minister of India. Expressing the apprehensions on these outputs, it was indicated in the Report as under: The volunteers of the said organizations are well dedicated, tech savvy and using Laptops in their routine working, with sound financial status of the organization, the possibility of the gathering of about 1 lakh, as claimed by the organizers, cannot be ruled out. Any minor incident at the venue not only may affect law and order situation but also may affect peace in the city creating serious law and order problems. Local Police, therefore, will have to be extra vigilant. The possibility of some agent provocation or subversive elements attempting to c....
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....144 Code of Criminal Procedure. On the basis of the input reports, the Joint Deputy Director, Criminare, had asked for proper security arrangements to be made for Baba Ramdev in furtherance to which the security of Baba Ramdev was upgraded. 164. In furtherance to the permission granted, the yoga shivir was held and a large number of persons participated therein. All went well till 3rd June, 2011 and it is nobody's case before the Court that any conditions were violated or there was any threat, much less imminent threat, to public peace and tranquility. The yoga camp carried its activities for those days. 165. As already noticed, Baba Ramdev had also been granted permission to hold a hunger strike/Satyagrah at the Jantar Mantar on 4th June, 2011. The restriction placed was that it should be with a very limited gathering. Further, vide letter dated 26th May, 2011, the Police had reiterated that the number of persons accompanying Baba Ramdev should not exceed 200. However, vide letter dated 4th June, 2011, the permission granted in relation to holding of dharna at Jantar Mantar was revoked, in view of the security, law and order reasons and due to the large gathering exceeding t....
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.... necessary for this Court to examine these orders from that point of view. But the circumstances leading to passing of these orders and the necessity of passing such orders with reference to the facts of the present case is a matter which has to be examined in order to arrive at a final conclusion, as it is the imposition of these orders that has led to the unfortunate occurrence of 4th June, 2011. Therefore, while leaving the parties to challenge these orders in accordance with law, if they so desire, I would primarily concentrate on the facts leading to these orders and their relevancy for the purposes of passing necessary orders and directions. 169. Though the MCD is the owner of the property in question, but still it has no role to play as far as maintenance of law and order is concerned. The constitutional protection available to the citizens of India for exercising their fundamental rights has a great significance in our Constitution. Article 13 is indicative of the significance that the framers of the Constitution intended to attach to the fundamental rights of the citizens. Even a law in derogation of the fundamental rights, to that extent, has been declared to be void, su....
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....d June, 2011. On the contrary, after taking into consideration various factors, it had upgraded the security of Baba Ramdev and had required the organizers, Respondent No. 4, to take various other measures to ensure proper security and public order at Ramlila Maidan. 171. It is nobody's case that the directions issued by the appropriate authority as well as the Police had not been carried out by the organisers. It is also nobody's case that the conditions imposed in the letters granting permission were breached by the organisers at any relevant point of time. Even on 3rd June, 2011, the Deputy Commissioner of Police, Central District, who was the officer directly concerned with the area in question, had issued a restricted circular containing details of the arrangements, the objectives and the requirements which the deployed forces should take for smooth organization of the camp at Ramlila Maidan. The threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprud....
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....ed. I do not rule out the possibility of the Intelligence sources having communicated this input to the Police authorities otherwise than in writing as well. But that would not make much of a difference for the reason that as already held, the Order under Section 144 Code of Criminal Procedure does not contain material facts and it is also evident from the bare reading of the Order that it did not direct Baba Ramdev or Respondent No. 4 to take certain actions or not take certain actions which is not only the purpose but is also the object of passing an Order under Section 144, Code of Criminal Procedure. 175. Mr. Harish Salve, learned senior Counsel, also contended that the police had neither abdicated its functions nor acted mala fide. The Police had taken its decisions on proper assessment of the situation and bona fide. Two further affidavits dated 9th January, 2012 and 10th January, 2012 were filed on behalf of the Police. They were filed by the Additional Deputy Commissioner of Police, Central District and Special Commissioner of Police, Law and Order, Delhi. These affidavits were filed primarily with an effort to clarify the details of the log book, the position of water can....
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....ions to the authorities. Despite query from the authority, they had incorrectly informed that only a yoga camp will be held at the premises of Ramlila Maidan, though Baba Ramdev had planned to commence his hunger strike from 4th June, 2011 at that place in presence of large gathering. 178. This argument, in my view, does not advance the case of the Police any further as Baba Ramdev had already started his fast and he, as well as all his followers, were peacefully sleeping when these orders were passed and were sought to be enforced against them. The Trust might not have given the exact and correct information to the Police but the Police already had inputs from the Intelligence Agencies as well as knowledge on its own that a hunger strike, in presence of large number of people, was to start from 4th June, 2011, which, in fact, did start. 179. From the record before this Court, it is not clear as to why the State did not expect obedience and cooperation from Baba Ramdev in regard to execution of its lawful orders, particularly when after withdrawal of the permission for holding dharna at Jantar Mantar, Baba Ramdev had accepted the request of the Police not to go to Jantar Mantar w....
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....ng for the parties that the scope of the present petition is a very limited one. This Court would only examine the circumstances that led to the unfortunate incident on 4th June, 2011, its consequences as well as the directions that this Court is called upon to pass in the peculiar facts and circumstances of the case. Therefore, it is not necessary for this Court to examine certain contentions raised or sought to be raised by the parties as the same may more appropriately be raised in an independent challenge to such orders or claim such other reliefs as they may like to claim by initiating appropriate legal proceedings. 182. This takes me to an ancillary but pertinent question in context of the said 'discretion', that is exercisable with regard to the 'threat perception', for the purposes of passing an order under Section 144 of the Code of Criminal Procedure. The activities which, though unintended have a tendency to create disorder or disturbance of public peace by resorting to violence, should invite the appropriate authority to pass orders taking preventive measures. The intent or the expected threat should be imminent. Some element of certainty, therefore, sh....
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....riminal Procedure., then why the order passed under Section 144 Code of Criminal Procedure. permitted all other rallies, processions which had obtained the Police permission to go on in the area of the same Police Division. The decision, therefore, appears to be contradictory in terms. 184. There is some merit in the submissions of learned Amicus curiae. Existence of sufficient ground is the sine qua non for invoking the power vested in the executive under Section 144 Code of Criminal Procedure. It is a very onerous duty that is cast upon the empowered officer by the legislature. The perception of threat should be real and not imaginary or a mere likely possibility. The test laid down in this Section is not that of 'merely likelihood or tendency'. The legislature, in its wisdom, has empowered an officer of the executive to discharge this duty with great caution, as the power extends to placing a restriction and in certain situations, even a prohibition, on the exercise of the fundamental right to freedom of speech and expression. Thus, in case of a mere apprehension, without any material facts to indicate that the apprehension is imminent and genuine, it may not be proper ....
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.... of Criminal Procedure. does not contemplate grant of any time for implementation of the directions relating to the prevention or prohibition of certain acts for which the order is passed against the person(s). It is a settled rule of law that wherever provision of a statute does not provide for a specific time, the same has to be done within a reasonable time. Again reasonable time cannot have a fixed connotation. It must depend upon the facts and circumstances of a given case. There may also be cases where the order passed by an Executive Magistrate under Section 144 Code of Criminal Procedure. requires to be executed forthwith, as delay in its execution may frustrate the very purpose of such an order and may cause disastrous results like rioting, disturbance of public order and public tranquility, while there may be other cases where it is possible, on the principles of common prudence, that some time could be granted for enforcement and complete implementation of the order passed by the Executive Authority under Section 144 Code of Criminal Procedure. If one reads the entire provision of Section 144 Code of Criminal Procedure., then the legislature itself has drawn a distinctio....
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....he yoga camp could resume. Simultaneously, they could also have prohibited entry into the Ramlila Maidan, as the same was being controlled by the Police itself. No facts or circumstances have been stated which could explain as to why it was absolutely necessary for the Police to wake up the people from their sleep and force their eviction, in a manner in which it has been done at the late hours of night. In absence of any explanation and special circumstances placed on record, I have no hesitation in coming to the conclusion that, in the facts of the present case, it was quite possible and even desirable for the authorities concerned to grant a reasonable time for eviction from the ground and enforcement of the orders passed under Section 144 Code of Criminal Procedure. Except in cases of emergency or the situation unexceptionally demanding so, reasonable notice/time for execution of the order or compliance of the directions issued in the order itself or in furtherance thereto is the pre-requisite. 190. Non-grant of reasonable time and undue haste on the part of the Police authorities to enforce the orders under Section 144Code of Criminal Procedure. instantaneously had resulted i....
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....tion of the principles of natural justice. The submission was sought to be buttressed by referring to Rule 10 of the MCD Rules which requires grant of personal hearing before revocation of a permission granted by the MCD. 193. To contra, the contention raised on behalf of Respondent No. 3, the Commissioner of Police, Delhi, is that there are specific powers vested in the Police in terms of the DP Act, the Punjab Police Rules, as applicable to Delhi and the Standing Orders, according to which the Police is obliged to maintain public order and public tranquility. They are expected to keep a watch on public meetings. There is no act attributable to the Police which has impinged upon any democratic rights of the said Respondents or the public. The orders passed and the action taken by the Police, including withdrawal of permission, was in public interest as weighed against private interest. Since the Police, as an important organ of the State Administration, is responsible to maintain public order and peace, it will be obligatory upon the persons desirous of holding such public meetings as well as the concerned authorities to associate Police and seek their permission for holding such....
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....ciple of reasonable restriction, which is constitutionally permissible. 196. Articles 19(1)(a) and 19(1)(b) are subject to the reasonable restrictions which may be imposed on exercise of such right and which are in the interest of sovereignty and integrity of India, security of the State, public order, decency or morality and friendly relations with foreign states. Besides this, such restriction could also relate to contempt of court, defamation or incitement to an offence. Thus, sphere of such restrictions is very wide. While some may be exercising their fundamental rights under Articles 19(1)(a) and 19(1)(b) of the Constitution, others may be entitled to the protection of social safety and security in terms of Article 21 of the Constitution and the State may be called upon to perform these functions in the discharge of its duties under the constitutional mandate and the requirements of Directive Principles of State Policy. 197. I have also noticed that in terms of Article 51A of the Constitution, it is the constitutional duty of every citizen to perform the duties as stated under that Article. 198. The security of India is the prime concern of the Union of India. 'Public o....
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....m. 201. The 'law and order' or 'public order' are primarily and certainly the concerns of the State. Police, being one of the most important organs of the State, is largely responsible for ensuring maintenance of public security and social order. To urge that the Police have no concern with the holding of public meetings would be a misnomer and misunderstanding of law. To discharge its duty, the Police organization of a State is a significant player within the framework of law. In this view of the matter, I may now refer to certain statutory provisions under the relevant Acts or the Rules. Chapter V of the DP Act requires special measures for maintenance of public order and security of State, to be taken by the Police. Sections 28 and 29 of the DP Act give power to the Police to make Regulations for regulating traffic and for preservation of order in public places and to give directions to the public, respectively. Under Section 31 of the DP Act, the Police is under a duty to prevent disorder at places of public amusement or public assembly or meetings. Section 36 contemplates that the Police is to ensure and reserve streets or other public places for public purpos....
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....en by the Minister of Home Affairs soon after the incident. Thus, no fault or error is attributable to the Ministry of Home Affairs, Government of India in relying upon the judgment of this Court in Babulal Parate (supra), Madhu Limaye (supra), Amitabh Bachchan Corpn. Ltd. v. Mahila Jagran Manch and Ors. (1997) 7 SCC 91, R.K. Garg v. Superintendent, District Jail, Saharanpur and Ors. : (1970) 3 SCC 227 and Dr. Praveen Bhai Thogadia (supra) to contend that the authorities have to be given some leverage to take decisions in such situations. There are sufficient inbuilt safeguards and that the judicial intervention in such executive orders has to be very limited. It is his contention that the present case does not fall in that category. 204. There cannot be any dispute that the executive authorities have to be given some leverage while taking such decisions and the scope of judicial review of such orders is very limited. These propositions of law are to be understood and applied with reference to the facts of a given case. It is not necessary for me to reiterate those facts. Suffice it to note that the action of the Police was arbitrary. The Seven Judges Bench of this Court in Madhu ....
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.... his efforts to go on with the fast, he would be removed. The Police had been issued appropriate directions under Section 65 of the DP Act to enforce the same. The decision so had also been taken by the Delhi Police. The Minister had requested the general public to appreciate the constraints and difficult circumstances under which the Delhi Police had to discharge its functions. This statement was even clarified with more reasons and elaborately in the exclusive interview of the Minister with DD News on the same date on the television. He is stated to have said that ultimately when the talks failed or Baba Ramdev went back on his words, the Police was told to enforce the decision. 208. There are circumstances and reasons given by the Home Minister in his statement for making the statement that he made. The decision of the Delhi Police in the normal course of events would have a connection with the declaration made by the Ministry. Police might have acted independently or in consultation with the Ministry. Either way, there is no material before me to hold that the decision of the Ministry or the Police was mala fide in law or in fact. Upon taking into consideration the cumulative ....
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....ry provisions and the Regulations made thereunder, in exercise of power of delegated legislation, cast a dual duty upon the State. It must ensure public order and public tranquility with due regard to social order, on the one hand, while on the other, it must exercise the authority vested in it to facilitate the exercise of fundamental freedoms available to the citizens of India. A right can be regulated for the purposes stated in that Article itself. 212. In Himat Lal K. Shah (supra), this Court observed that even in pre-independence days the public meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and amenities. The streets and public parks existed primarily for other purposes and the social interest promoted by untrammelled exercise of freedom of utterance and assembly in public streets must yield to the social interest which the prohibition and Regulation of speech are designed to protect. There is a constitutional difference between reasonable Regulation and arbitrary exclusion. The power of the appropriate authority to impose reasonable Regulation, in order to ensure the safety and convenience of the....
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....ty in granting and/or refusing the permission sought for. I hasten to add here itself that an application to the Police has to be examined with greatest regard and objectivity in order to ensure exercise of a fundamental right rather than it being throttled or frustrated by non-granting of such permission. 216. A three-Judge Bench of this Court in the case of Destruction of Public and Private Properties, In Re (supra) primarily laid down the guidelines to effectuate the modalities for preventive action and adding teeth to the enquiry/investigation in cases of damage to public and private properties resulting from public rioting. The Court indicated the need for participation and for taking the Police into the organizational activity for such purposes. The Court, while following the principles stated in the case of Union of India v. Association of Democratic Reforms (2002) 3 SCC 696, gave directions and guidelines, wherever the Act or the Rules were silent on a particular subject, for the proper enforcement of the provisions. In paragraph 12 of the judgment, the Court clearly stated that as soon as there is a demonstration organized, the organizers shall meet the Police to review a....
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....that they are able to exercise their right to freedom of speech and assembly and, at the same time, there is no obstruction, injury or danger to the public at large. 220. Thus, in my considered opinion, associating Police as a pre- requirement to hold such meetings, dharnas and protests, on such large scale, would not infringe the fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution as this would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of the others, as contemplated under Article 21 of the Constitution of India. That would be the correct approach of law, as is supported by various judgments and reasoning, that I have detailed in the initial part of this judgment. 221. A solution to such an issue has to be provided with reference to exercise of a right, imposition of reasonable restrictions, without disturbing the social order, respecting the rights of others with due recognition of the constitutional duties that all citizens are expected to discharge. 222. Coming to the f....
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....ury. Also it has to be seen that in the 'agony of the moment', would the situation have been different and safe, had the people concerned acted differently and as to who was majorly responsible for creation of such a dilemma. Under the English law, it has been accepted that once a statute has enjoined a pattern of behavior as a duty, no individual can absolve another from having to obey it. Thus, as a matter of public policy, volenti cannot erase the duty or breach of it (Ref. Clerk & Lindsell on Torts, Twentieth Edition, pg. 246). 226. There is no statutory definition of contributory negligence. The concerns of contributory negligence are now too firmly established to be disregarded, but it has to be understood and applied properly. 'Negligence' materially contributes to injury or is regarded as expressing something which is a direct cause of the accident. 227. The difference in the meaning of "negligence," when applied to a claimant, on the one hand, and to a Defendant on the other, was pointed out by Lord Simon in Nance v. British Columbia Electric Ry. (1951) A.C. 601 at 611: When contributory negligence is set up as a defence, its existence does not depend o....
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....SC 4182, it is stated that the principle stated therein would be applicable to a large extent to the cases involving the principles of contributory negligence as well. This Court in the case of Municipal Corporation of Delhi, Delhi v. Association of Victims of Uphaar Tragedy and Ors. (C.A. Nos. 7114-7115 of 2003 : C.A. No. 7116 of 2003 : C.A. No. 6748 of 2004, pronounced on 13th October, 2011) while considering awarding of compensation to the victims who died as a result of Uphaar tragedy and the liability of the persons responsible, held that even on the principle of contributory negligence the DVB to whom negligence was attributable in relation to installing a transformer was liable to pay damages along with licensee. Whenever an order is passed which remains unchallenged before the Court of competent jurisdiction, then its execution is the obvious consequence in law. For its execution, all concerned are expected to permit implementation of such orders and, in fact, are under a legal obligation to fully cooperate in enforcement of lawful orders. Article 19(1)(a) gives the freedom of speech and expression and the right to assembly. Article 21 mandates that no person shall be depri....
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.... exhorted that he would not advise the path of hinsa, but at the same time, he also stated about failure of his talks with the Government and the attitude of the Government on the issues that he had raised and also stated that 'Babaji will go only if people wanted and the God desires it." 231. After some time, Baba Ramdev climbed onto the stage and thereafter, disappeared. In the CCTV cameras, Baba Ramdev is not seen thereafter. He did not disclose to his followers that he was leaving and what path they should follow. This suspense and commotion on the stage added fuel to the fire. Thereafter, the scenes of violent protest and clash between the Police and the followers occurred at the site. 232. The legality and correctness of the order passed under Section 144 Code of Criminal Procedure. was not challenged by Respondent No. 4 and, in fact, it remains unchallenged till date. of course, the attempt on the part of the authorities to enforce the order forthwith, practically frustrated the right available to Respondent No. 4 under law i.e. preferring of an appeal or a revision under the provisions of Code of Criminal Procedure. 233. Be that as it may, the fact that when an order....
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....esult in fastening the liability on all contributory partners, may be vicariously, but the liability certainly would extend to all the defaulting parties. For these reasons, I have to take a view that in the circumstances of the case, Baba Ramdev and the office bearers of Respondent No. 4 have contributed to the negligence leading to the occurrence in question and are vicariously liable for such action. Findings and Directions: (1) In discharge of its judicial functions, the courts do not strike down the law or quash the State action with the aim of obstructing democracy in the name of preserving democratic process, but as a contribution to the governmental system, to make it fair, judicious and transparent. The courts take care of interests which are not sufficiently defended elsewhere and/or of the victims of State action, in exercise of its power of judicial review. In my considered view, in the facts of the present case, the State and the Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situatio....
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....w. Thus, in my considered opinion, the requirement of associating police, which is an important organ of the State for ensuring implementation of the rule of law, while holding such large scale meetings, dharnas and protests, would not infringe the fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution. This would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article 21 of the Constitution of India. The police authorities, who are required to maintain the social order and public tranquility, should have a say in the organizational matters relating to holding of dharnas, processions, agitations and rallies of the present kind. However, such consent should be considered in a very objective manner by the police authorities to ensure the exercise of the right to freedom of speech and expression as understood in its wider connotation, rather than use the power to frustrate or throttle the constitutional right. Refusal and/or withdrawal of permission shoul....
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....s to be exercised for the purposes of maintaining public order. The material facts, therefore, should demonstrate that the action is being taken for maintenance of public order, public tranquility and harmony. (8) Even if an order under Section 144 Code of Criminal Procedure. had to be given effect to, still Respondent No. 4 had a right to stay at the Ramlila Maidan with permissible number of people as the land owning authority-MCD had not revoked its permission and the same was valid till 20th June, 2011. The chain of events reveals that it was a case of police excesses and, to a limited extent, even abuse of power. (9) From the material placed before the Court, I am unable to hold that the order passed by the competent authority and execution thereof are mala fide in law or in fact or is an abdication of power and functions by the Police. The action, of course, partially suffers from the vice of arbitrariness but every arbitrary action necessarily need not be mala fide. Similarly every incorrect decision in law or on facts of a given case may also not be mala fide but every mala fide decision would be an incorrect and impermissible decision and would be vitiated in law. Upon ....
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....ing by use of force from a particular place, in furtherance to an order passed by an executive authority under Section 144 of the Code of Criminal Procedure. (15) This is not a case where the Court can come to the conclusion that the entire police force has acted in violation to the Rules, Standing orders and have fallen stray in their uncontrolled zeal of forcibly evicting innocent public from the Ramlila Maidan. There has to be a clear distinction between the cases of responsibility of the force collectively and the responsibility of individual members of the forces. I find from the evidence on record that some of the police officers/personnel were very cooperative with the members of the assembly and helped them to vacate the Ramlila Maidan while others were violent, inflicted cane injuries, threw bricks and even used tear-gas shells, causing fire on the stage and total commotion and confusion amongst the large gathering at the Ramlila Maidan. Therefore, these two classes of Police Force have to be treated differently. (16) Thus, while directing the State Government and the Commissioner of Police to register and investigate cases of criminal acts and offences, destruction of....
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....e said amount shall be paid to the Commissioner of Police, who in turn, shall issue a cheque for the entire amount in favour of the injured or the person claiming for the deceased. 235. The compensation awarded by this Court shall be treated as ad-hoc compensation and in the event, the deceased or the injured persons or the persons claiming through them institute any legal proceedings for that purpose, the compensation awarded in this judgment shall be adjusted in those proceedings. 236. The view expressed by me in this judgment is prima facie and is without prejudice to the rights and contentions of the parties that may be available to them in accordance with law. 237. The suo moto Petition is disposed of with above directions while leaving the parties to bear their own costs. 238. This Court would be failing in its duty if appreciation is not placed on record for the proficient contribution made and adroit assistance rendered by Dr. Rajeev Dhavan, learned amicus curiae, Mr. R.F. Nariman, learned Solicitor General of India, Mr. P.P. Malhotra, learned Additional Solicitor General, Mr. Harish N. Salve, Mr. P.H. Parekh, Mr. Ram Jethmalani, learned senior advocates, other learned ....
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....re sleeping. They were forcibly woken up by the Police, assaulted physically and were virtually thrown out of their tents. This was done in the purported exercise of the police powers conferred under Section 144 Code of Criminal Procedure on the strength of a prohibitory order dated 4.6.2011 passed by the Assistant Commissioner of Police as mentioned hereinabove. 243. The manner in which the said order came to be implemented, raised a deep concern about the tyrannical approach of the administration and this Court took cognizance of the incident calling upon the Delhi Police Administration to answer this cause. The incident had ushered a huge uproar and an enormous tirade of criticism was flooded, bringing to our notice the said unwarranted police action, that too, even without following the procedure prescribed in law. 244. The question is as to whether such an order stands protected under the restriction clause of Article 19 of the Constitution of India or does it violate the rights of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours. The incident also raises serious questions about the credibility of the police act, the procedure followed for i....
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.... The police or the Administration without any lawful cause cannot make a calculated interference in the enjoyment of the fundamental rights guaranteed to the citizens of this country. As to what was material to precipitate such a prohibitory action is one aspect of the matter, but what is more important is the implementation of such an order. This is what troubles me in the background that a prohibitory order was sought to be enforced on a sleeping crowd and not a violent one. My concern is about the enforcement of the order without any announcement as prescribed for being published or by its affixation in terms of the Delhi Police Standing Order 309 read with Section 134 Code of Criminal Procedure. 249. 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 whe....
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....e beginning of health is sleep. The state of sleep has been described by Homer in the famous epic Iliad as "sleep is the twin of death". A person, therefore, cannot be presumed to be engaged in a criminal activity or an activity to disturb peace of mind when asleep. Aristotle, the great Greek philosopher has said that all men are alike when asleep. To presume that a person was scheming to disrupt public peace while asleep would be unjust and would be entering into the dreams of that person. 251. I am bewildered to find out as to how such declaration of the intention to impose the prohibition was affected on a sleeping crowd. There may be a reason available to impose prohibitory orders calling upon an assembly to disperse, but to me, there does not appear to be any plausible reason for the police to resort to blows on a sleeping crowd and to throw them out of their encampments abruptly. The affidavits and explanation given do not disclose as to why the police could not wait till morning and provide a reasonable time to this crowd to disperse peacefully. The undue haste caused a huge disarray and resulted in a catastrophe that was witnessed on Media and Television throughout the cou....
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....damental human right of every human being like any other key values such as freedom of association and freedom of speech. Therefore, every act which offends or impairs human dignity tantamounts to deprivation pro tanto of his right to live and the State action must be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. (Vide: Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and. Ors. AIR 1981 SC 746). 256. The Constitution does not merely speaks for human right protection. It is evident from the catena of judgments of this Court that it also speaks of preservation and protection of man as well as animals, all creatures, plants, rivers, hills and environment. Our Constitution professes for collective life and collective responsibility on one hand and individual rights and responsibilities on the other hand. 257. In Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295; and Govind v. State of Madhya Pradesh and Anr. AIR 1975 SC 1378, this Court held that right to privacy is a part of life under Article 21 of the Constitution which has specifically been re-iterated in People's Union f....
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.... v. State of Tamil Nadu and Ors. AIR 1995 SC 264; PUCL v. Union of India and Anr. AIR 1997 SC 568; Mr. 'X' v. Hospital 'Z' (1998) 8 SCC 296; Sharda v. Dharmpal (2003) 4 SCC 493; People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. AIR 2003 SC 2363; District Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Ors. (2005) 1 SCC 496; Bhavesh Jayanti Lakhani v. State of Maharashtra and Ors. (2009) 9 SCC 551; and Smt. Selvi and Ors. v. State of Karnataka AIR 2010 SC 1974). 260. In Ram Jethmalani and Ors. v. Union of India and Ors. (2011) 8 SCC 1, this Court dealt with the right of privacy elaborately and held as under: Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.... The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values.... The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State....
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.... Supreme Court itself or within the precincts of the Parliament. 265. More so, I am definitely not dealing herein with the rights of homeless persons who may claim right to sleep on footpath or public premises but restrict the case only to the extent as under what circumstances a sleeping person may be disturbed and I am of the view that the State authorities cannot deprive a person of that right anywhere and at all times. 266. While dealing with the violation of Human Rights by Police Officials, this Court in Prithipal Singh and Ors. v. State of Punjab and Anr. (2012) 1 SCC 10, held as under: The right to life has rightly been characterized as "supreme" and 'basic'; it includes both so-called negative and positive obligations for the State". The negative obligation means the overall prohibition on arbitrary deprivation of life. In this context, positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. 267. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.....
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....ssions and Rules prescribe the mode of service of the order passed under Section 144 Code of Criminal Procedure., inter-alia: Xxx (5) Arrangement at the place of demonstration should include the following: a) Display of banner indicating promulgation of Section 144 Code of Criminal Procedure. b) At least 2 videographers be available on either side of the demonstration to capture both demonstrators as well as police response/action. c) Location of Ambulance/PCR vans for shifting injured persons. d) Loud hailers should be available. (6) Repeated use of PA system a responsible officer- appealing/advising the leaders and demonstrators to remain peaceful and come forward for memorandum/deputation etc. or court arrest peacefully. Announcements should be videographed. (7) If they do not follow appeal and turn violent declare the assembly unlawful on PA system & videograph. (8) Warning on PA system prior to use of any kind of force must be ensured and also videographed. xxx (13) Special attention be paid while dealing with women's demonstrations - only women police to tackle them. 272. The order dated 4.6.2011 passed under Section 144 Code of Criminal Procedure. ....
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....olice administration is to be blamed for not implementing the order, by strict adherence to the procedural requirements. People at large have a legitimate expectation that Executive Authority would ensure strict compliance to the procedural requirements and would certainly not act in derogation of applicable Regulations. Thus, the present is a clear cut case of Human Rights violation. 274. There was no gossip or discussion of something untrue that was going on. To the contrary, it was admittedly an assembly of followers, under a peaceful banner of Yogic training, fast asleep. The assembly was at least, purportedly, a conglomeration of individuals gathered together, expressive of a determination to improve the material condition of the human race. The aim of the assembly was prima facie unobjectionable and was not to inflame passions. It was to ward off something harmful. What was suspicious or conspiratory about the assembly, may require an investigation by the appropriate forum, but to my mind the implementation appears to have been done in an unlawful and derogatory manner that did violate the basic human rights of the crowd to have a sound sleep which is also a constitutional f....