TaxTMI 
TaxTMI 
2018 (7) TMI 2156
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....s imposed by the Assistant Commissioner of Police, Sub-Division, Parliament Street, New Delhi District prohibiting the following activities without written permission in the areas known as Parliament House, North and South Block, Central Vista Lawns together with its surrounding localities and areas: i) The holding of any public meeting; ii) Assembly of five or more persons; iii) Carrying of fire-arms, banners, placards, lathis, spears, swords, sticks, brickbats etc. iv) Shouting of slogans; v) Making of speeches etc. vi) Processions and demonstrations; vii) Picketing or dharnas in any public place within the area specified in the Schedule and site plan appended to this order 2. It is the grievance of the Petitioner that though a particular order passed Under Section 144 of the Code of Criminal Procedure remains in force for a period of 60 days, simultaneously on the expiry of the said period of 60 days another order of identical nature is passed thereby banning the holding of public meetings, peaceful assembly and peaceful demonstrations by the public at large. This, accordi....
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....r Plat, 2021. the said road, houses not only residences of members of Parliament but also State Guest house of Kerala, office of Delhi Metro Corporation and offices of political parties. The grievances were that Jantar Mantar has become a ground for organizing protest by various categories of groups, political and non-political. Such protests are not temporary or transient. The protestors have rather put up tents and other arrangements where people have been staying for many months. Some of the structures have been on the site for past several years. It was also averred that the manner in which the demonstrations are held and the area occupied by the protesters are causing noise pollution and air pollution, thereby causing insurmountable and untold miseries to the residents and causing adverse health effect on the residents and their children. 4. The prayer made in the Original Application was to pass appropriate orders directing the Police Commissioner and other government authorities (who were arrayed as Respondents) to disallow the protestors of Jantar Mantar Road stretch between Ashoka Road and Parliament Street or prevent them from using loudspeaker or public announcement s....
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....AL No. 864 OF 2018 7. Civil Appeal No. 864 of 2018 is filed by Indian Ex-Serviceman Movement. This organisation, which is fighting for the rights of the ex-servicemen, had been holding dharnas, assembly, speeches, etc. at Jantar Mantar, is precluded from raising its voice because of the order passed by the NGT imposing ban on such types of assemblies. 8. The aforesaid introduction in these two cases clearly reveals the commonality of the issues and legal precepts on the basis of which the subject matter of all the cases is to be decided. For this reason, all the four cases were clubbed together ad heard simultaneously. FACTS: W.P. (CIVIL) No. 1153 OF 2017: 9. This PIL is filed by the Mazdoor Kisan Shakti Sangathan (for short, "MKSS"). It is claimed that MKSS is a grassroot, unregistered people's organisation formed in 1990 with its headquarters in Devdungri, Rajasthan with bank account number 51041231248 in State Bank of Bikaner and Jaipur, Bhim. The MKSS was a crucial part of the movement that led to the passage of the Right to Information Act in 2005. The platform of village based public hearings or "Jan Sunwais" pioneered by the MKSS in the mid-1990s became insti....
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....l Procedure, 1973 (No. 2 of 1974) read with Govt. of India, Ministry of Home Affairs, New Delhi's Notification No. U-11036/(i) UTL dated 9.9.2010, I, Ved Bhushan, Asstt. Commissioner of Police of Sub-Division Parliament Street of New Delhi District do hereby make this written order prohibiting: i) The holding of any public meeting; ii) Assembly of five or more persons; iii) Carrying of fire-arms, banners, placards, lathis, spears, swords, sticks, brickbats etc. iv) Shouting of slogans; v) Making of speeches etc. vi) Processions and demonstrations; vii) Picketing or dharnas in any public place within the area specified in the Schedule and site plan appended to this order; 5. The specific area covered by this prohibitory order, will be the area and building surrounded by Sansad Marg/opposite Registrar of Co-operative Societies, Old Court Building, towards Sansad Marg/Ashoka Road crossing, Ashoka Road, Windsor Place (inclusive Road), Ashoka Road upto Man Singh Road/Ashoka Road R/A, T/R Man Singh Road (exclusive) upto Rajpath, then T/R on Rajpath (inclusive) upto ....
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.... fundamental rights of the citizens are completely denied thereby. However from 1993 till recently, the only place where the protests were allowed was Jantar Mantar. 13. When attempts were made to restrict protest at Jantar Mantar, the Delhi Police's repeated orders banning protests in Central Delhi were challenged by a Bhopal Gas Pidit Mahaila Stationary Karamchari Sangh member in 2010 before the Delhi High Court, who had come along with other activists to Delhi to raise a protest because of the failure of the Government of India to set up an empowered commission to look into the problems of the victims of toxic gases leak from the plant of the Union Carbide in 1984 but the same protests were being rendered unfruitful because of the orders of the Delhi Police continuously imposing restrictions on the right to protest in Central Delhi. The High Court on 31st May, 2011, disposed of the petition when the Delhi Police filed an affidavit stating that the continuous prohibition Under Section 144 of the Code of Criminal Procedure under the jurisdiction of the New Delhi District declaring certain areas as prohibited area for holding any public meeting, dharna, peaceful protest, etc....
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.... as well as High Courts have upheld this fundamental right of the citizens, i.e., right to protest and assemble peacefully without arms is a distinguishing feature of any democracy and it is this feature that provides space for legitimate dissent. It encompasses the right to express grievances through direct action or peaceful protest. Organized non-violent protest marches were a key weapon in the struggle for independence and the right to peaceful protest is now recognised as a fundamental right in the Constitution. He accepted that while on the one hand, citizens are guaranteed fundamental right of speech and the right to assemble for the purpose of carrying peaceful protest/processions, on the other hand, reasonable restrictions on such rights can be placed by law. Provisions of the Indian Penal code (for short, 'IPC') and Code of Criminal Procedure are in the nature of such reasonable restrictions, which are statutory provisions giving powers to the State to ensure that such public assemblies, protests, dharnas or marches are peaceful and they do not become unlawful. However, his submission was that while exercising such powers the authorities are supposed to act within....
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....ld have, but for such order, expired. The effect of the proviso, therefore, is that the State Government would be entitled to give the prohibitory order an additional term of life but that would be limited to six months beyond the two months' period in terms of Sub-section (4) of Section 144 of the Code. Several decisions of different High Courts have rightly taken the view that it is not legitimate to go on making successive orders after earlier orders have lapsed by efflux of time. A Full Bench consisting of the entire Court of 12 Judges in Gopi Mohun Mullick v. Taramoni Chowdhrani examining the provisions of Section 518 of the Code of 1861 (corresponding to present Section 144) took the view that such an action was beyond the Magistrate's powers. Making of successive orders was disapproved by the Division Bench of the Calcutta High Court in Bishessur Chuckerbutty v. Emperor. Similar view was taken in Swaminatha Mudaliar v. Gopalakrishna Naidu, Taturam Sahu v. State of Orissa, Ram Das Gaur v. City Magistrate, Varanasi, and Ram Narain Sah v. Parmeshar Prasad Sah. We have no doubt that the ratio of these decisions represents a correct statement of the legal position. The pr....
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....ation. Contrary to the aforesaid stand taken by the Respondents in the said case, submitted Mr. Bhushan, the Respondents had started adopting the same tactics of issuing repeated orders Under Section 144, Code of Criminal Procedure This practice, according to the learned Counsel, was anathema in a democratic set up where people have been guaranteed freedom of speech and freedom of assembly to vent out their grievance. He submitted that it was a valuable right which was given to the citizenry to let off their esteem and if that right of peaceful demonstration is not allowed, it may take a violent turn. 18. Mr. Bhushan, learned Counsel, referred to various judgments where such a right is recognised as fundamental right. 19. He also referred to certain other judgments (1970) 3 SCC 746, 1961 (3) SCR 423, (2012) 5 SCC 1, (1978) 1 SCC 226, (1973) 1 SCC 227, (1983) 4 SCC 522 to buttress his submission that the powers Under Section 144 of Code of Criminal Procedure are intended to be used for preventing disorders, obstructions and annoyances. 20. Mr. Bhushan went to the extent of citing international standards, conventions and judgments of foreign courts on the right to peaceful a....
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....ming violent, such group can always be prevented from holding demonstrations. For this purpose Respondents can always have vigilance inputs. However, there is no reason or rationale in putting a general and complete ban on peaceful demonstrations. 22. M/s. Tushar Mehta and A.N.S. Nadkarni, learned Additional Solicitor Generals, made a strong refutation to the aforesaid arguments of the Petitioner. Laying much stress on the sensitive character of the area in question, to justify the issuance of orders passed Under Section 144 of the Code of Criminal Procedure, they made a fervent plea to uphold these orders. Referring to certain passages from Babulal Parate, it was submitted that 'clear and present danger' test which was applied by US Courts in such cases was not applicable in the Indian context and the correct test as applied by this Court was that of 'apprehension of breach of peace' test. Specific reliance was placed on the following paragraphs from Babulal Parate. 14. Looking at the Section as a whole it would be clear that, broadly speaking, it is intended to be availed of for preventing disorders, obstructions and annoyances and is intended to....
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....orality, or in relation to contempt of court, defamation or incitement to an offence." Similarly the rights to which Sub-clause (b) relates are subject to the limitations to be found in Clause (3) of Article 19 which runs thus: Nothing in Sub-clause (b) of the said Clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. The Code of Criminal Procedure was an existing law at the commencement of the Constitution and so, in the context of the grounds on which its validity is challenged before us, what we have to ascertain is whether the conferral thereunder of a power on a Magistrate to place restrictions on the rights to which Sub-clauses (a) and (b) of Article 19 relate is reasonable. It must be borne in mind that the provisions of Section 144 are attracted only in an emergency. Thereunder, the initial Judge of the emergency is, no doubt, the District Magistrate or the Chief Presidency Magistrate or the Sub-Divisional Magistrate or any other Magistra....
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....The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the doctrine adumbrated in Scheneck case [Scheneck v. U.S., 249, US 47] that previous restraints on the exercise of fundamental rights are permissible only if there be a clear and present danger. It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed Under Article 19(1) of the Constitution are not absolute rights but, as pointed out in State of Madras v. V.G. Row [1952 SCR 597] are subject to the restrictions placed in the subsequent clauses of Article 19. There is nothing in the American Constitution corresponding to Clauses (2) to (6) of Article 19 of our Constitution. The Fourteenth Amendment to the U.S. Constitution provides, among other things, that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; ....". 24. The framework of our Constitution is different from that of the Constitution of the United States. T....
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....order. Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order. We must, therefore, reject the contention. 28. It is no doubt true that since the duty to maintain law and order is cast upon the Magistrate, he must perform that duty and not shirk it by prohibiting or restricting the normal activities of the citizen. But it is difficult to say that an anticipatory action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order. In such circumstances that could be the only mode of discharging the duty. We, therefore, reject the contention that Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order. 29. Coming to the order itself we must consider certain objections of Mr. Mani which are, in effect, that there are t....
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.... and drew to a conclusion therefrom that unrestricted holding of public meetings, processions/demonstrations was likely to cause problems like obstructions to traffic, danger to human safety and disturbances of public tranquility. The Assistant Commissioner of Police, thus, satisfied the requirement of Section 144 of Code of Criminal Procedure It was also argued that there was no complete ban imposed on such public meetings etc. and the orders prohibited these meetings etc. without written permission. In other words, before holding any such public meetings, processions, demonstrations, etc. prior permission of the authorities was required which should be considered on case to case basis. 25. The learned ASGs laid great emphasis on the fact that New Delhi was the capital city and entire activity of Central Government was mainly located in Central Delhi area which was covered by the prohibitory orders passed, namely, Parliament House, North and South Block, Central Vista Lawns and its surrounding localities and areas. It was also emphasised that there were official visits by foreign dignitaries to this capital city on a regular basis and any untoward incident as a consequence of s....
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....eriod. 28. It was, thus, submitted that no doubt the Petitioner had a right to hold dharnas, protests, marches, demonstrations or public meetings etc. which was their fundamental right. However, such a right was not untrammeled or absolute but was subject to reasonable restrictions. Having peculiar conditions prevailing in this area of New Delhi in question, the impugned orders passed Under Section 144 Code of Criminal Procedure amounted to reasonable restrictions. Nevertheless, at the same time, in order to ensure that Petitioner and Ors. are able to exercise their right of demonstration, etc., the area in Ramlila Maidan was specifically earmarked for such purposes. It was, thus, argued that promulgation of Section 144 Code of Criminal Procedure was not only a matter of necessity to prevent the breach of public tranquility, riot, affray, but was also in public interest and public safety. Such an order was said to be legally justified on the test of principles laid down in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746, where the Court held as under: 24. ...There is no general proposition that an order Under Section 144, Code of Criminal Procedure cann....
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....vandism and even destroy public/private property: Before adverting to the issue at hand, we would like to make some general remarks about the manner in which these demonstrations are taking shape. Recent happenings show an unfortunate trend where such demonstrations and protests are on increase. There are all kinds of protests: on social issues, on political issues and on demands of various Sections of the society of varied kinds. It is also becoming a common ground that religious, ethnic, regional language, caste and class divisions are frequently exploited to foment violence whenever mass demonstrations or dharnas, etc. take place. It is unfortunate that more often than not, such protesters take to hooliganism, vandalism and even destroy public/private property. In the process, when police tries to control, the protesters/mob violently target policemen as well. Unruly groups and violent demonstrations are so common that people have come to see them as an appendage of Indian democracy. All these situations frequently result in police using force. This in turn exacerbates public anger against the police. In Kashmir itself there have been numerous instances where sepa....
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.... 33. The subject matter of the said judgment is confined to the demonstrations etc. at Jantar Mantar Road, particularly the stretch between the Ashoka Road and the Parliament Street. It is also relevant to note that the Original Application before the NGT was filed by the residents who have their residential houses on the aforesaid stretch as the area in question has been earmarked as residential area even under the Master Plan, 2021. That apart, there are residences of Members of Parliament as also State Guest House of Kerala, Office of Delhi Metro Corporation and offices of some of the political parties on the said road. 34. The NGT noticed that Jantar Mantar Road has become a ground for raising protest by various category of groups, political and non-political. Such protests are not temporary or transient. The protestors have rather put up tents and other arrangements where people have been staying for many months. Some of the structures have been on the side of the street. The organizers of these protests make arrangement for food, lodging, etc. on such makeshift structures. They have also affixed loud speakers at various places in the area. NDMC has provided the facility....
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....rotestors. The other civic authorities such as NDMC and the Police authorities have also miserably failed to maintain cleanliness in and around Jantar Mantar. They have further neglected and failed to ensure peaceful and comfortable living for the residents of the locality. The Petitioners have placed on record a number of photographs [annexure P 1 (Colly)] which shows permanent structure erected for delivering public speeches, temporary shelters, tents for living. They have mushroomed in the locality. Vehicles are delivering food, drinks, eatables and the protestors cooking food, washing and drying their clothes, etc. 36. Since long, on the stretch of Jantar Mantar road protest/dharnas are being regularly organized (despite there being no legal or administrative order/permission for designating of place as a protest ground). In recent past, the number of protest/dharnas, as well as that of people constituting them have tremendously increased. The pollution in the area have also increased many folds, on account of noise, large gathering of people, waste, etc. The noise pollution has been increased due to installation of traditional public address system based on the ....
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....Dharnas on Jantar Mantar road are coupled with non-stop slogans and it has developed into a place of inhabitation for the protesters who also carry with them tents and temporary shelters. It is used as a place for sleeping, to take bath, cook food, etc. by the protesters and they live there for months together. Above all, the people sitting on dharna, carrying on processions and agitations continuously play loud speakers, not only during day but also till late night. 38. The continuous activity of the protesters, agitators and dharna/processions for a number of years by now, the site has virtually become hell for the residents of the locality who cannot sleep at night, face noise pollution during the day, having difficulties in ingress and egress to their residencies, much less to say, to take their vehicles up to their residences. Many a times, when dharnas, agitations, processions, etc. are on their peak specially during Parliament session, the residents are even prevented or with great difficulty they are able to walk down to their residences because the Police for the purpose of maintaining law and order puts barricades and even close the road. Such being the sit....
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....ypertension and other serious diseases relating to heart etc. The NGT found that they were suffering because of gross violation of laws, air pollution and health hazard, due to lack of cleanliness and non-performance of duties by the authorities of the State. All this is endangering their lives. The environmental conditions at Jantar Mantar Road in relation to noise pollution, cleanliness, management of waste and public health had been grossly deteriorated. The situation was becoming alarming, day by day. On that basis, the NGT found merit in the Original Application filed by the residents. 39. The NGT also noted that earlier the protests/dharnas/agitations were allowed only at Ramlila Maidan, near Ajmeri Gate in Delhi. The said area was the place where people used to assemble for purposes of protest march and processions. It was the point from where the agitators were to start for their destinations like Parliament House, office/residence of the Chief Minister, the Home Minister, etc. etc. Subsequently, the battle ground for protestors and agitators came to be the Boat Club near India Gate. Later, the Police shifted the place of agitation from Boat Club to Jantar Mantar, appare....
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.... * The said area is inhabited as there are residential houses. The area is marked as "residential area even under Master Plan 2021". * Apart from houses of private citizens, there are residences of Members of Parliament and also State Guest House of Kerala, Office of Delhi Metro Corporation as well as offices of some of the political parties on the said road. * Holding of protest on the Jantar Mantar road had become a regular feature, where the protests were being held on continuous basis. * Such protests are not temporary or transient. Protestors had put up tents and other arrangements where people had been staying for months together. Even structures had been put on the side of the street, where arrangement for food, lodging etc. were being made. * The protestors had affixed loud speakers at various places in the area. * Use of these loud speakers at all times, including odd times and night hours, was creating noise pollution and this pollution was getting worsened with the continuous plays of drums, music and microphones etc. This noise pollution was exceeding the permissible limits laid down in....
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....to impose such a ban. It was further argued that Ramleela ground, where the protests are now permitted, is far away from the Parliament. Moreover, the said area is infested by traffic congestion all around and, therefore, would cause much more discomfort and hardships to not only the protestors but the traffic in that area, which is also surrounded by hospitals, school, college, hardship places and cricket ground. 44. Respondent Nos. 1 to 7 supported the impugned order by laying emphasis on the reasons which are given therein. It was submitted that the fundamental right of the protestors to hold demonstrations etc. does not extend to causing such discomforts and difficulties to the residents so as to violate the fundamental right of the residents Under Article 21 of the Constitution: 45. It is further submitted that though the protestors at Jantar Mantar road were being allowed to exercise fundamental right to protest by way of loudspeakers, but the said right cannot be provided by the State to curtail the rights of the residents citizens, qua the right not to listen. The said principle of reasonable restriction on this right is enshrined in Article 19(2) to (6) of the Consti....
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.... governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests. 49. In Babulal Parate v. State of Maharashtra 1961 (3) SCR 423, this Court observed: The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India. 50. In Kameshwar Prasad v. State of Bihar (1962) Supp 3 SCR 369 the Court was mainly dealing with the question whether the right to make a demonstration is....
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....e State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open-air meetings in any large city. The real problem is that of reconciling the city's function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks, with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public assembly. The assumption made by Justice Holmes is that a city owns its parks and highways in the same sense and with the same rights as a private owner owns his property with the right to exclude or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks. The parks are held for public and the public streets are also held for the public. It is doubtless true that the State or local authority can regulate its property in order to serve its public purposes. Streets and public parks exist prim....
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....arters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed Under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the Petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given Under Article 19(1)(d), again, ensures that the Petitioners could take out peaceful march. The "right to assemble" is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of "salt satyagraha", fast-unto-death and "do or die" is no jural anathema". It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the strug....
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....s such law imposes reasonable restrictions on the exercise of the right conferred by the said sub Clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub Clause (b) of the said Clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause 56. It can be deciphered from the aforesaid provisions that exercise of right to speech conferred in Clause (a) and right to assemble peaceably and without arms in Clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. This legal position is also accepted by all the parties. 57. In this hue, we have to examine as to whether total ban of demonstrations etc. at Jantar Mantar road amounts to viola....
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....blic order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under Clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and Clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. 137. Having bestowed our anxious consideration on the said passage, we are disposed to think that the above passage is of no assistance to the Petitioners, for the issue herein is sustenance and balancing of the separate rights, one Under Article 19(1)(a) and the other, Under Article 21. Hence, the con....
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....islaus v. State of M.P. would be instructive. In the said case, the Constitution Bench was dealing with two sets of appeals, one arising from Madhya Pradesh that related to Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the other pertained to the Orissa Freedom of Religion Act, 1967. The two Acts insofar as they were concerned with prohibition of forcible conversion and punishment therefor, were similar. The larger Bench stated the facts from Madhya Pradesh case which eventually travelled to the High Court. The High Court ruled that that there was no justification for the argument that Sections 3, 4 and 5 were violative of Article 25(1) of the Constitution. The High Court went on to hold that those Sections "establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such as conversion by force, fraud and by allurement". The Orissa Act was declared to be ultra vires the Constitution by the High Court. To understand the controversy, the Court posed the following questions: (Rev. Stainislaus case, SCC p. 681, para 14) 14. ... (1) whether the two Acts were violative of the fundamental right guaranteed Under A....
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....ligion by an exposition of its tenets does not mean one's religion to convert another person as it affects the fundamental right of the other. We have referred to this authority as it has, in a way, dwelt upon the "intra-conflict of a fundamental right". 61. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right. To elaborate, as in this case, the Accused has a fundamental right to have a fair trial Under Article 21 of the Constitution. Similarly, the victims who are directly affected and also form a part of the constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances. Thus, perm....
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....ons it can be treated to be appropriate. 62. There may be a perception that if principle of primacy is to be followed, then the right of one gets totally extinguished. It has to be borne in mind that total extinction is not balancing. When balancing act is done, the right to fair trial is not totally crippled, but it is curtailed to some extent by which the Accused gets the right of fair trial and simultaneously, the victims feel that the fair trial is conducted and the court feels assured that there is a fair trial in respect of such cases. That apart, the faith of the collective is reposed in the criminal justice dispensation system and remains anchored. 61. Undoubtedly, right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed Under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed....
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....The authorities could also examine, while allowing such demonstration, as to the number of protestors who are likely to participate and could refuse permission to hold any such demonstration etc. when the number is going to be abnormally large which, if allowed, would per se create hardships of various kinds to the residents. These are some of the examples given by us. The underlying message is that certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed so as to enable the protestors to exercise their right and, at the same time, ensuring that no inconvenience of any kind is caused to the residents. 63. Before the NGT, the authorities took the position that such demonstrations are to be allowed as the area was earmarked for such purposes. The residents, on the other hand, in the petition filed by them, highlighted the infringement of their rights which were caused by these demonstrations. In this kind of adversarial approach adopted by the parties before the NGT, the NGT went by the ground realities and the pathetic situation faced by the residents because of such demonstrations. Though this analysis of the NGT is without ....
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....venience of any nature whatsoever, insofar as residents are concerned. 65. Having regard to the aforesaid discussion, we direct the Commissioner of Police, New Delhi in consultation with other concerned agencies, to devise a proper mechanism for limited use of the area for such purposes but to ensure that demonstrations, etc. are regulated in such a manner that these do not cause any disturbance to the residents of Jantar Mantar road or the offices situated there. Detailed guidelines in this respect can be formulated. We may also clarify that a provision can be made for taking requisite prior permission from the Police Commissioner (or his delegated authority) for holding such demonstration by a particular group and while examining such proposals the parameters can be laid down which shall be looked into in order to decide whether the permission is to be granted or not. Two months' time is given to the Commissioner of Police, New Delhi for formulating such guidelines. 66. The Petitioner in Writ Petition (Civil) No. 1153 of 2017 wants boat club area to be available for demonstrations, etc. The Petitioner has successfully demonstrated that it is their fundamental right Unde....
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.... to carry out any such processions and dharnas, it has to take prior written permission. This clearly implies that whenever such a request is made, the authority is to examine the same and take a decision as to whether it should allow the proposed demonstration, public meeting etc. or not, keeping in view its likely effect, namely, whether it would cause any obstruction to traffic or danger to human safety or disturbance to public tranquility etc. If requests made are considered and then allowed or rejected keeping in view the aforesaid considerations, there cannot be any quarrel as to the validity of such an order made Under Section 144 of the Code of Criminal Procedure That is, however, not the ground reality. 69. No doubt, an order passed Under Section 144 of the Code of Criminal Procedure remains valid for a period of sixty days which is the limit prescribed in that provision. However, just before the expiry of one order, another identical order is passed. Such repeated orders, in continuum, have created a situation of perpetuity. It is argued on behalf of the Respondents that as there is no change in the situation, which remains the same insofar as sensitivity of this area ....