# HIMAT LAL K. SHAH v. COMMISSIONER OF POLICE, AHMEDABAD & ANR - **Citation:** [1973] 2 S.C.R. 266 - **Court:** Supreme Court of India - **Decided:** 1972-09-15 - **Case number:** Criminal Appeal No. 152 of 1970 - **Bench:** S; M. Sikju, A. N. Ray, P. Jaganmohan Reddy, K. K. Mathew, M. H. Beg - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/himat-lal-k-shah-v-commissioner-of-police-ahmedabad-anr-5849 - **Pages:** 34 ## Headnote B Co11stit11tio11 of India. 1950, Art.I'. 19(1) (a), (b) and (d)-Right af citizens to hole/ puhlic nieetings on public ,<;lre~t.r-lf fundanzental right· Bombay Police Act. 1951, s. 33(1) (OJ and r. 7 of R11/es framed there• under-Rule requi'ring prior pennission for holding meetings-Rules if ultra vires section-Rule, if violates fundanzental rights. ' . Th~ appellant, whose application for permission to hold a public meet· ing en a public street was rejected. contended in a writ petition in the C , High Court, (I) that the rules framed. by the first respondent under s.33(1) (0) of the Bombay Police Act, 1951, were ultra vires the section ·in that the sub-section does not authorise framing of rules requiring prior permission for ho.lding meetings; and (2) that the sub-section and the rules were violative of the fundamental rights guaranteed under Art. )9(1) (a) and (b) of the Constitution. The High Court .dismissed the petition. Jn appeal to this Court, D HELD : (per Curit1111) : Rule 7 of the rules is void. [283F; 293E; 2990] (Per S. M. Sikri, CJ., A .• N. Ray and P. Jaganmohan Reddy,.JJ) : C !) The impugned rules are not ultra vires s. 33 (I) in so far as they require prior permission for holding meetings. r2SOB-CJ Sub-section 33(1) (0) proceeds on the basis th,.t the public has a right. E to he.Id assemblies and tukc processions on and along streets though It is necessary to re11u/ute the conduct and behaviour or action of persons con•tituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word 'regulate' v.ou!O include the power to prescribe that permission in writing should be taken a few days before the holding of a meeting on a public street. The impugned rules do not prohibit the holding of meetings but only prescrihe that permission should be taken. [275B-E) (2)(a) Section 33(1) (0) does not viola.le Art. 19(1) (b), and Art. 19 ( l) (a) is noJ attracted to the facts of the case. The sub-section has nothing to do with the formation of assemf,Jies and prOCOSllions but only Ueal'i \\·ith persons as members o'f assemblies and processions. The sub~ 1:iection enables the Con1n1issioner to n1ake rules to regulate .. the assemblies and processions. Without such rules, in crowded public streets, it would he iplpossible for citizens to enjoy their various rights. Indeed, the section '/1'°Y be said to have been enacted in aid of the rights under Art. 19 (!) ia) and 19(1) (d). f281B-D) F G ( h) h could not he contended hy the respondent that as under the Common I.aw of England no one has a right to hold a meeting on a highv.ay. and the sacne law prevails in Jndia. and therefore, the word 'rcl"ulate' means a right to prohibit the holding of a meeting also:· In India, the law has developed on slightly different lines, and a citizen in ff India ·had. before the Constitution .. 1a right to hold meetings on public nstitutfon were aware that public meeti:ngs were being held in public ~treets and that the public have come to regard it as part of their rights and privileges as citimlS. pcrhap• erroneously, . but this error was grounded on the ~olid c<1uhstratum of continued practice over the years and co1nnutnis e"or facit ju.<. In the U.S. ~lso the basis of a citizens privilege to use streets and park• fOr commun·ication of views, was the con•inued de facto excrci!"t of the right over a number of years, and fundamental rights in India of free speech :ind ;issembly arc modelled on lhc Bill of Righls of the U.S. Constitutiori. Bui a public meeting will be a nuisance if it appreciably obstructs the roa.n hold a public meeting may be linked with or CVf'.Jl flow out of rights under Art. 19( I) (a) and (b), yet the right to hold a meeting at a partiC)Jlar place must rest on the proof of user of that place for the exercise of. a fundamental right and, the right to such a user mu·.t be established in each particular case quite apart from and independentlv of the fundamental rights, guaranteed by Art. 19(1). The law in U.S. as laid down in Hague v. C.1.0. (307 U.S .. 496) also appears to be that whatever rights can be properly exercised by members of the public· on a public thoroughfare may be exercised there but the others could be exercised in a park where a public meeting could be held. Even otherwise, whatever may be the law in U.S., there is no authority for the proposition that ther~ is an uncbnditional right of holdi_ng a public meeting at every public place, much less on a public thoroughfare or street in India as a necessary incident Cf{ the fundamental rights either of free speech or of assembly. [2940-G; 295B-D: 297E-H] Although. the right to hold a public meeting at a public place may not be a fundamental right by itself, yet, it is so closely connected with fundamental rights that a power to regulate it should not be left in a nebulous. state. II should be hedged round with sufficient safeguards aga~t its misuse even if it "is to be exercised by the Commissioner of Poliqe. But, r. 7 is so worded as to enable the Commis for either a refusal or a permission. It will, therefore. be possible for him, under the gui•e 'of powers given by this rule. to discriminate, when the rule does not indicate the circumstances in which perm"ission mav be given or ~used. The rule of law that the C®stitution contemplates demands the existence of adequate means to check possihili· 270 SUPREME COURT REPORTS [1973] 2 S.C.R. tic, of misuse of every kind of power lodged in officials of the St-ate. Therefore. the rule should be struck down as contraveni:ng Art. 14. although, if the rcpercuss:ons on the rights guaranteed by Art. 19(1)(a) and ibl ·\\ere 1a111rla11r v. Shri Mailadeoji Mailarc.j, [1965] 2 S.C.R. 242. Lahhmidilar Misra & Ors. v. Benga/a(A.l.R . . 1950 P.C. 56 Halsbury's Lah's of Enghmd (3rd Ed.) Vol. 19, p. 73 Blackwell's Law of Meetings (9th Ed.) p. 5 and Dicey'.' Law of Co11stit11tio11 (10th Ed.) pp. 271-72, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 152 of 1970. A Appeal by certificate from the juC:gment and ordkr dated c December 12, 1969 of the Gujarat High Court at, Ahmedabad in Special Cri1ninal Application No. 42 of 1969. M. K. Ramamurthi, J. Ramamurthy, for the appellant. H, Sen, P. Ramesh and S. P. Nayar, for the respondents. The Judgment of Sikri C.J., Ray and Jaganmohan Reddy. JJ. was delivered by Sikri. C.J. Mathew, and Be2, JJ. delivered separate opinions. - Sikri, C.J. This appeal by certificate granted by the Gujarat High Court raises an important question as to the· right of citi· zens in India to hold public meetings on public streets, and the restrictions which can be placed on that right. On August 30, l 969 the appellant made an application to the Police Commissioner, Ahmedabad, for permission to hold ;1 public meeting near Panch Kuva Darwaja, Ahmedabad. on September 4, 1969 at 8 .00 p.m. in connection with the All India students' strike sponsored by All India Students Federation, to be -0rganised on September 5, 1969. n September 2, 1969, this permission was refused because the ·:application was not sent 5 days before the day of the meeting as required by notification of the Commissioner of Police. No. 982/66 dated February 15, 1966. "The appellant was also informed that ·"holding a meeting with or without loudspeaker, without the permission, amounts to an offence." On August 30, 1969 the appellant had also applied for permission to hold another public meeting on September 5, 1969. The Deputy Police CoJT'_'Uissioner informed him on September 2. 1969. that the penni~sion "cannot be granted inasmuch as a meeting was held on 7-e-69 under a similar permission where· after certain elements had indulged in rioteering :md caused mis· chief to private and public properties, regarding which a crime D E F G H I A 8 c D E F G H H. L, .SHAH v. COMMR, OF POLICE (Sikri, C.J.) 271 also has been registered". He was also informed that "in vie\\ of the present position, it is not possible to grant such permission in order to maintain law and order." He was further asked to note that "holding meeting with or without a- loudspeaker witl!.- ou·t permission amounts to an offence." :Tue appellant thereupon filed a petitio1~ under Art. 226 of th~ Constitution, on September 3, 1969, praymg inter alia. ( l) to quash the orders mention~d above; (2) to declare s.33(o) read with s.33(y) of the Bombay Police Act (hereinafter called the Act)- void~ ( 3) to declare the rules Nos. 7 to II, 14 and 15 of the Rules for Processions and Public Meetings hereinafter called the Rules) void; and ( 4) to declare that the petitioner was entitled to hokl public meetings on September 4, 1969 and Septem - ber 5, 1969 without obtaining permission from the respondent. By the time the case was heard, the two in1pugned orders bad become infn1ctuous by lapse of time. The High Court, however. examined the other contentions raised before it because it felt that th_e organization, of which the appellant was an office bearer, had to organise meetings on a number of occasions and every time the question of applying for permission would arise. The relevant statutory provisions that applied to Ahmcdabad are as follows : Bombay Police Act, 1951 "33 ( 1) The Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, a)ter or rescind rules or orders not inconsistent with this Act for; * 0 . * 0 * c (n) licensing, controlling or, in order to prevent the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers in the vicinity, prohibiting the playing of music, the beating of drums, tom-toms or other instruments and blowing or sounding of horns or other noisy instruments in or near streets or public places; ( o) regulating the conduct of and behaviour or actioD of persons constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes by which, the order in which and the times ai which the same may pass; • • • • • • 272 SUPREME COURT REPORTS jl973] 2 S.«;:.R. . ( y) prescribing the procedure in accordance with which any licence or pennission sought to be obtained or required under this Act should be applied for and fixing the fees to be charged for any such licence or permission." In exercise of the powers, conferred by Clauses (n), (o) and ( y) of sub-section ( 1) of Section 33 of the Bombay Police Act, 1951 (Born. Act XXI! of 1951) read with Section 4 of the Bombay State Commissioners of Police Act of 1959 (Born. Act LVI of 1959 ), the Commissioner of Police, .Ahmedabad . City, v.ith the previous sanction of the Government of Gujarat, made the following rules for conduct. behaviour and action of persons desirous oCtonducting processions or holding or convening public meetings in the areas covered by the Commissionerate of Police, Ahmedabad City. Rules (l ) to ( 6) deal with processions. Rule (6) may be reproduced. "6. Subject lo the provisions of the foregoing rules and subject to the imposition of such conditions as may be deemed necessary, a pennission shalt be granted, unless the officer concerned is of opinion that the procession proposed to be organised or taken out shall be prohibited, in which case he shall forth with refer the application together with his report thereon for the orders of the Commissioner of Police, Ahmedabad City. No permission shall be required for a bonafide religious or marriage procession consisting of less than I 00 or a funeral procession of a person who has died a natural death." Rules ( 7) to ( 13) deal with holding of public meetings. Rule (l 4) and Rule ( 15) apply to both processions and public meeting. Rules'(7), (8), .(9), (11) and (14) are reproduced below. Rule (15) makes the infringment of rules and conditions punishable. "(7). No public meeting with or without loudspeaker, shall be held on (he public street within the jurisdiction of the_. Commissionerate of the Police. Ahmedabad City unless the necessary permission in writing has been obtained from the officer authorised by the Commissioner of Police. ( 8) . The application for permission shall be made in writing and shall be signed by the persons who intend to organise or promote such a meeting. A B c D E F G H B fJ E G ;H H. L. SHAH v. COMMR. OF POLICE (Sikri, C.J.) 273 ( 9). The application shall be made to the officer authori3ed to issue permission not less thaJJ 5 days.before the time, at which the public meeting is to start. (I I). The applicant or his representative shall remain present during the Public Meeting with the permission granted to him :md shall produce the same for inspection by any Police Ollicer whenever required. (14). The organiser or organisers of the procession or the public mcctin'! shall on demand furnish a security of such amount as fixed by the Commissioner of Police or any officer authorised by the Commissioner o, • -.1.1ce in this behalf, for the due observance of the conditions of the permission." Before the High Court, it was urged on behalf of the appellant as follows :- "(I). Sub-clause ( o) of section 33 (I) of the Bombay Police Act does not empower the Commissioner 0f Police to frame rules requiring any person to obtain prior permission for holding a meeting and the rule so frap1eioner of Police to prohibit a meeting from taking place would foll within the ambit of clause ( o). The provision contained in clause (y) would not abridge the meaning of the word 'regulating' in clause ( o) ." i 9-L348Sup.C.T./73 274 SUPREME COURT REPORTS [1973] 2 S.C.R. The second contention was repelled by the High Court on the ground that "a detailed examination of the various provisions of the Act clearly indicates the policy underlying thji Act and provides clear guidance to the officers who have to exercise powers of framing Rules conferred on them." The High Court observed that "il cannot be said that clause ( o) confers naked, uncontrolled and arbitrary powers on the Commissioner of Police to grant or refu ,~ permission at his sweet will and pleasure." Regarding the third ground it was held that. the Rules imposed reasonable restrictions and were covered by Art. 19(2). The learned counsel for the appellant submitted before us the following propositions :- ( 1) Rules 7, 13. 14 and 15 promulgated by the Commissioner of Police on October 21, 1965 are ultra vires section 33 (1 )( o) of the Bombay Police Act, 1951, as in force in Gujarat, inasmuch as the said provisions do not authorise framing of rules requiring· the prior permission for holding meetings. (2) Section 33 ( 1) ( o) of the Act is unconstitutional as it infringes Art. 19(1)(a) and (b). The restrictions are wide enough to cover restrictions both within and without the limit of pennissible legislative action affecting such rights. (3) In any event the section and tl;g rules impose unreasonable restrictions on the fundamental right guaranteed to the appellants under Art. 19(l)(a) & (b) because (a) the ambit of power conferred on the Executive is very large and uncontrolled; (b) such power is open to be exercised arbitrarily; ( c) the restrictions imposed are excessive; (d) the procedure and manner of imposition are not fair and just; ( e) there are no sufficient safeguards againstthe misuse of power conferred and there is no right of representation; (f) the section and the rules suffer from vagueness: (g) the restrictions are not narrowly drawn to prevent -the supposed evil and do not satisfy the touchstone for legislation dealing with basic freedom, namely, precision; A B c D E F G (h) in delegating powers to the Executive to impose H restrictions the legislature has not provided adequate standards to pass scrutiny by accepted tests. B c .D E F G H H. L, SHAH V. COMMR. OF POLICE (Sikri, C.J.) 275 ( 4) The impugned section and rules violate Art. 14 as they enable the authorities to discriminate between persci'ns without just classification. ( 5) Section 33 (1) ( o) suffers from the vice of excessive delegation of legislative powers and is theref<;>re void. Coming to the first point raised by the learned counsel, it seems to us that the word 'regulating' in s. ~3 ( o) would include the power to prescribed that permission in "'iiting should be taken a few days before the holding <•l a .meeting on a public street. Under s. 33 ( o) no rul~ coulll be prescribed prohibiting all meetiAgs or processions. Tho section proceeds on the basis that the public has a right to held assemblies and processions on and along streets though it is nece1>sary to regulate the conduct and behaviour or action of persons constituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word 'regulate', according to Shorter Oxford Dictionary, means, "to control, govern, or direct by rule or reg11lations; to subject to guidance or restrictions". fhe impugned Rules lies lawfully engaged in religious worShip. A procession is but, an assembly in motion and if it is a religious procession, it is, .in my judgment, (I) I.LR. 11903) 26 Mad. 554. ,\ B c I) E F G A B c D E F G H H. L. SHAH v. COMMR. OF POLICE (Sikri, C.J.) entitled to the special protection given by the Penal Code assemblies lawfully engaged in religious worship." 279 We have referred to these cases in detail because they were approved of by the Privy Council in Manzur Hasan v. Muhammed Zaman-l'). In that case the Privy Council held : ••Jn India., there is a right to conduct a religious procession with its appropriate observances through a pitblic street so that it does not intefere with the ordinary use of the street by the public, and subject to lawful directions by the magistrates. A civil suit for a declaration lies against those who interfere with a religious procession or its appropriate observance." In Chandu Sajan Patil v. Nvahaleltand(") the Full Bench held that a citizen had an inherent right to conduct a non-religions procession through a public road. · ·This Court followed the decision of the Privy Council in Shaikh Piru Bux v. Kalandi Pati("). It is true these decisions primarily deal with processions but the statutes of the country, notably the Police Acts, deal with assemblies and processions on the same basis, and as pointed out by Benson, J., a procession is but an assembly in motion. This Court considered the question of the right of citizens to carry on motor transport business on highways in Saghir Ahmad v. State of U.P.("). The following passage from the judgment of Venkatarama Ayyar J., in C.S.S. Motor Service v. State iif Madras ( ') was approved : "The tn:e position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the pu\Jlic are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character anil extent of the user, as may be requisite for protecting the rights of the public generally; .... bnt subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways." --- (!) 52 I.A. 61 (2) A.LR. 1950 Bom. l'ic. (3) Civil Appeal No. :!5 of 196(1; JLH.lg:111cnt dalcd ()ctobcr :!9, 1968). !4) [1955] 1 S.C.R. 707, (5) [1952) 2 M.L. l ~94 280 SUPREME COURT REPORTS [1973] 2 S.C.R. We are unable to appreciate how this passage militates against the contentions of the appellant. The Court was not ·then concerned with the use of public streets for processions or meetings. It seems to us that it follows from the above discussion that in India a citizen had, before tl1e Constitution, a right to hold meetings on public streets su"bject to the control of the appropriate authority regarding the time and place of the meeting and su"bject to considerations of pu"blic order. Therefore, w~ are una"ble to hold that the impugned rules are ultra vires s.