TMI Blog2018 (7) TMI 2156X X X X Extracts X X X X X X X X Extracts X X X X ..... ve democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from State authorities as well a powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. It can be deciphered from the provisions of Articles 19(2) and (3) that exercise of right to speech conferred in Clause (a) and right to assemble peaceably and without arms in Clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. This legal position is also accepted by all the parties. Whether total ban of demonstrations etc. at Jantar Mantar road amounts to violation of the rights of the protestors of the Constitution or this would amount to a reasonable restriction in the interest of 'public order'? - HELD THAT:- There would be also an incidental and interrelated issue, namely, whether the manner in which the demonstrations etc. are held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal is that Ramlila Maidan is far away from that portion of New Delhi area where there is a concentration of 'power' and, therefore, holding protests and demonstration at a far place in Ramlila Maidan would have no impact or very little effect. It was stressed that the purpose of holding such demonstrations and raising slogans is that they reach concerned persons for whom these are meant. This may be correct. However, it is also to be borne in mind that we are living in an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like 'WatsApp', 'Twitter', 'Instagram' etc. which take no time in spreading such events. Secondly, though holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked. On the other hand, it is also to be acknowledged that Ramlila Maidan may not be sufficient to cater to this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion disposed off. - Writ Petition (Civil) No. 1153 of 2017, Civil Appeal Nos. 863, 862 and 864 of 2018 - - - Dated:- 23-7-2018 - A.K. Sikri And Ashok Bhushan, JJ. For the Petitioner : Mr. Daya Krishan Sharma, AOR, Mr. Rohit Vats, Adv., Mr. Hemant Mudgil, Adv., Mr. Surender Singh, Adv. Mr. Prashant Bhushan, AOR, Mr. KLDS Vinobar, Adv., Mr. A. Subba Rao, AOR For the Respondent : Mr. Riju Raj Jamwal, Adv., Ms. Madhusmita Bora, AOR Mr. Ghanshyam Joshi, AOR, Mr. Tushar Mehta, ASG, Ms. Vibha Dutta Makhija, Sr. Adv., Mr. S.S. Shamshery, Adv., Mr. Rajat Nair, Adv. Mr. B. V. Balaram Das, AOR For the Intervenor : Mr. Shadan Farasat, AOR, Ms. Rudrakshi Deo, Adv. JUDGMENT A.K. Sikri, J. 1. Writ Petition (Civil) No. 1153 of 2017, which is filed as public interest litigation Under Article 32 of the Constitution of India, challenges the repeated imposition of police order Under Section 144 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C. ), whereby ban is 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or directions as this Hon'ble Court may deem fit and proper in the interests of justice. CIVIL APPEAL No. 862 OF 2018 3. Civil Appeal No. 862 of 2018, on the other hand, has laid challenge to the judgment and order passed by the National Green Tribunal, Principal Bench, New Delhi (hereinafter referred to as the NGT ) in Original Application No. 63 of 2016. This Original Application was filed by Respondent Nos. 1 to 7, who are the residents of Jantar Mantar Road. In the said Original Application they had stated that on Jantar Mantar road, particularly the stretch between the Ashoka road and Parliament street, there are residential houses where people are living for number of decades by now. This stretch on Jantar Mantar road, falling between the intersection on Ashoka Road and Parliament street, has been earmarked as residential area even under the Master 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese directions violate fundamental right of the Appellants enshrined in Article 19(1)(b) of the Constitution to hold peaceful demonstrations as the Appellants are fighting for the welfare and interest of the farmers and holding dharnas at Jantar Mantar for redressal of the legitimate grievances of these farmers. CIVIL APPEAL No. 863 OF 2018 6. Likewise, the Appellant in Civil Appeal No. 863 of 2018, aggrieved by the same order of NGT, states that she is the sufferer for many years for the grave offence of rape by a police officer on 16th June, 2010 and to attract attention of the concerned persons for redressal for her grievance she has been continuously sitting on dharna at Jantar Mantar and with the ban of such dharna by the NGT, her valuable fundamental right is affected. CIVIL APPEAL 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 introducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER 1. Whereas the areas known as Parliament House, North South Block, Central Vista lawns together with its surrounding localities and areas, are busy places frequented by heavy vehicular and pedestrian traffic. 2. And whereas reports have been received indicating that such conditions now exist that unrestricted holding of public meetings, processions/demonstrations etc. in the area are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility. 3. And whereas it is necessary to take speedy measures in this behalf to prevent danger to human life or safety and disturbance of public tranquility. 4. Now, therefore, in exercise of the powers conferred upon me by the virtue of Section 144 Code of Criminal 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , satyagraha against the British Rule and later Emergency era protests, kisan agitations, Mandal Commission protests, the Jan Lokpal aandolan and the December 2012 gang-rape protests, to name a few. Upto the 1980s citizens of this country had unrestricted rights to hold dharnas, protests and agitations in the Boat Club lawns near India Gate along the Rajpath road. After the Mahendra Singh Tikait agitation, protests at Boat Club lawns were restricted. In fact the unrestricted right to protest was severely curtailed and the entire Central Delhi, which is close to the establishment offices, has been turned into a fortress and the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain relevant provisions of the Code of Criminal Procedure including Section 144 thereof and also that of Delhi Police Act, 1978. He submitted that holding peaceful demonstration by people in order to air grievances and to see that their voice is heard in the relevant quarters, is the right of the people. Such a right can be traced to the fundamental system guaranteed Under Articles 19(1)(a) and 19(1)(b) of the Constitution. Article 19(1)(b) specifically confers a right to assembly and, thus, guarantees that all citizens have right to assemble peacefully and without arms. He submitted that by various pronouncements, this Court 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Section is intended for immediate prevention of breach of peace or speedy remedy. An order made under this Section is to remain valid for two months from the date of its making as provided in Sub-section (4) of Section 144. The proviso to Sub-section (4) authorises the State Government in case it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot or any affray, to direct by notification that an order made by a Magistrate may remain in force for a further period not exceeding six months from the date on which the order made by the Magistrate would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded to meet an emergency. This postulates a situation temporary in character and, therefore, the duration of an order Under Section 144 of the Code could never have been intended to be semi-permanent in character. 17. The aforesaid writ petition was disposed of after taking note of the fact that continuous prohibition Under Section 144 of Code of Criminal Procedure under jurisdiction of New Delhi District had been discontinued and a statement was also made by the Respondents that this provision would not be invoked as and when unwarranted except in emergent situation. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very purpose of peaceful demonstration would be rendered meaningless which would clearly amount to violating rights of the Petitioner Under Articles 19(1)(a) and 19(1)(b) of the Constitution. In this way, argued the learned Counsel, the Respondents were treating their citizens as their servants. He also submitted that the impugned orders were based on the assumption that whenever there is a demonstration or dharna in New Delhi area, it would lead to violence which was an uncalled for assumption. His plea was that if any particular group has such antecedents of becoming 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rights guaranteed by Sub-clause (a) are not absolute rights but are subject to limitations specified in Clause (2) of Article 19 which runs thus: Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said Sub-clause in the interests of 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. 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the proceeding before the Magistrate would be a judicial one, he will have to set aside the order unless he comes to the conclusion that the grounds on which it rests are in law sufficient to warrant it. Further, since the propriety of the order is open to challenge it cannot be said that by reason of the wide amplitude of the power which Section 144 confers on certain Magistrates it places unreasonable restrictions on certain fundamental rights. 23. 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United States it seems to us clear that anticipatory action of the kind permissible Under Section 144 is not impermissible under Clauses (2) and (3) of Article 19. Both in Clause (2) (as amended in 1951) and in Clause (3), power is given to the legislature to make laws placing reasonable restrictions on the exercise of the rights conferred by these clauses in the interest, among other things, of public 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved indicating that such conditions now exist that unrestricted holding of public meetings, processions/demonstrations etc. in the area are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility. 24. It was argued that there was due application of mind by the Assistant Commissioner of Police who had gone through the reports 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 Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period from March, 2015 to 5th April, 2018, which shows that most of the time such protest/demonstrations were turning violent leading to commission of crimes under the aforesaid provisions of the Indian Penal Code. Annexure R-2 gives details of persons who were detained Under Section 65 of the Delhi Police Act while holding protest/demonstrations during the said period. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derly demonstration and this would not obviously be within Article 19(1)(a) or (b). 30. Submission was sought to be buttressed by reading the following extracts from the judgment in the case of Anita Thakur v. Government of Jammu and Kashmir (2016) 15 SCC 525, where this Court noticed that more often than not, such protesters take to hooliganism, 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 viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be advisable to take note of the discussion contained in the judgment dated 5th October, 2017 of NGT in Varun Seth's case in the context of Jantar Mantar area. The scope of discussion in the said judgment, though subject matter of challenge in civil appeals, would give more comprehensive picture of the ground realities. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the adverse affect of such dharnas and protests at Jantar Mantar Road in the following manner: 35. But Jantar Mantar and its surrounding areas, once known for its history, has now become a battle ground for protestors and agitators. The area has become a permanent place for filth and litter indulged in by the protestors. 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/d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all other residents on Jantar Mantar road is being persistently disturbed by the dharnas which are a few thousands every year. These dharnas and protests are stretched almost on the entire Jantar Mantar road, on both sides and even across the width of the road. 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat residents of Jantar Mantar Road are not living a normal life and their difficulties were increasing by the day. Such demonstrations with loud noise were also causing various kinds of health problems like hearing problem, blood pressure, hypertension 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions which prevailed upon the NGT to pass such an order can be stated, in bullet form. These are: Area in question where the demonstrations were being held is a stretch between the Ashoka Road and the Parliament Street. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Jantar Mantar but extends to the entire Delhi. Therefore, noise pollution could not be a ground 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decisions taken by the Government or other 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 primarily for o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 struggle for Independence, and the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 violation of the rights of the protestors of the Constitution or this would amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 concept of equipoise and counterweighing fundamental rights of one with other person. It is not a case of mere better enjoym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh 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 Article 25(1) of the Constitution, and (2) whether the State Legislatures were competent to enact them? 59. It was contended before this Court that the right to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntra-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, permissible limitations are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intra-conflict of the right conferred under the same article, like fair trial in this case, the test that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 blemish, we, however, feel that the solution was not to ban the demonstrations altogether. Instead, the NGT would have directed the authorities to adopt such measures (some of which are indicated by us above) so that there is a balancing of the rights of both the Sections of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Under Articles 19(1)(a) and 19(1)(b) of the Constitution. At the same time, it is also not denied that there can be reasonable restrictions on exercise of this right in larger public interest. The Respondents have also highlighted in equal measure the sensitivity of this area be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 and specific/peculiar conditions prevailing, such orders in repetitive form are necessitated. Even if we accept this position and proceed on that basis, this would only mean continuous Regulation of the proposed public meetings, processions, demonstrations, etc. by not allowing the same in 'u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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