# MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR

- **Citation:** [2018] 11 S.C.R. 586
- **Court:** Supreme Court of India
- **Decided:** 2018-07-23
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mazdoor-kisan-shakti-sangathan-v-the-union-of-india-anr-32367
- **Pages:** 59

## Headnote

Constitution of India:
Arts. 32, 19(1)(a) and 19(1)(b) - Right to protest - Right to
assemble peaceably and without arms - Writ petitions seeking
quashing of the repeated imposition of police order u/s. 144 Cr.P.C.
by which Central Delhi area declared as prohibited area for holding
public meetings, dharna, peaceful protests; quashing of the order
of NGT prohibiting/banning demonstrations at Jantar Mantar road;
and issuance of writ of mandamus laying down the guidelines for
holding public meetings, dharnas - Held: Right of people to hold
peaceful protests and demonstrations etc. is a fundamental right
guaranteed u/Art. 19(1)(a) and 19(1)(b) - Peaceful protests and
demonstrations, can be allowed in a guarded and regulated manner,
to enable the protestors to exercise their right, ensuring that no
inconvenience of any kind is caused to the residents - There could
be balancing of the rights of both the protestors and the residents -
For quite some time Jantar Mantar has been chosen as a place for
holding demonstrations and was earmarked by the authorities as
well - However, pathetic conditions were caused as a result of the
processions, demonstrations and agitations etc. since the authorities
did not take necessary measures to regulate the same - Ramlila
Maidan earmarked for such demonstrations etc, may not be
sufficient to cater to this requirement - Since, Jantar Mantar was
the area chosen by the authorities and has been in use for quite
sometime, balancing can be done by permitting a limited part of
this area for holding peaceful public meetings, processions etc. such
that no disturbance or inconvenience of any nature is caused to the
residents - Commissioner of Police, New Delhi in consultation with
other concerned agencies, to frame proper guidelines for regulating
such protests, demonstrations iin Jantar Mantar and Boat Club area.
[2018] 11 S.C.R. 586
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Arts. 19(1)(a), 19(1)(b) - Right to protest - Held: Holding
peaceful demonstrations by the citizenry to air its grievances is a
fundamental right, enshrined u/Art.19(1)(a) and 19(1)(b), subject
to reasonable restrictions, which can be imposed in the interests of
sovereignty and integrity of India or public order - Legitimate dissent
is a distinguishable feature of any democracy - It is not whether
the issue raised by protestors is right or wrong or is justified or
unjustified - Fundamental aspect is the right which is conferred
upon the affected people in a democracy to voice their grievances
- 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.
Arts. 19(1)(a), 19(1)(b) and 21 - Fundamental rights - Right
of protestors u/Art. 19(1)(a) and 19(1)(b) vis-a-vis the rights of the
residents u/Art. 21 - Balancing of the two rights - Held: Situations
arise where there is conflict between two fundamental rights - In
respect of some person one fundamental right enjoyed by him may
come in conflict with the other fundamental right guaranteed to
him - Principle of primacy cannot be given to one right whereby
the right of the other gets totally extinguished - Total extinction is
not balancing - Balancing would mean curtailing one right of one
class to some extent so that the right of the other class is also protected
- While balancing the two conflicting rights, the Court is to examine
the larger public interest, which would ultimately prevail.
Code of Criminal Procedure, 1973: s. 144 - Repeated
imposition of police order u/s. 144 Cr.P.C. by which Central Delhi
area declared as prohibited area for holding public meeting, dharna
or peaceful protest - Held: These orders do not, on their face, appear
to be illegal as they prohibit public meetings, assembly of five or
more persons, processions, demonstrations, dharnas, etc. 'without
written permission' - Further , such orders are passed on the

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MAZDOOR KISAN SHAKTI SANGATHAN
v.
THE UNION OF INDIA & ANR.
(Writ Petition (Civil) No.1153 of 2017)
JULY 23, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Constitution of India:
Arts. 32, 19(1)(a) and 19(1)(b) - Right to protest - Right to
assemble peaceably and without arms - Writ petitions seeking
quashing of the repeated imposition of police order u/s. 144 Cr.P.C.
by which Central Delhi area declared as prohibited area for holding
public meetings, dharna, peaceful protests; quashing of the order
of NGT prohibiting/banning demonstrations at Jantar Mantar road;
and issuance of writ of mandamus laying down the guidelines for
holding public meetings, dharnas - Held: Right of people to hold
peaceful protests and demonstrations etc. is a fundamental right
guaranteed u/Art. 19(1)(a) and 19(1)(b) - Peaceful protests and
demonstrations, can be allowed in a guarded and regulated manner,
to enable the protestors to exercise their right, ensuring that no
inconvenience of any kind is caused to the residents - There could
be balancing of the rights of both the protestors and the residents -
For quite some time Jantar Mantar has been chosen as a place for
holding demonstrations and was earmarked by the authorities as
well - However, pathetic conditions were caused as a result of the
processions, demonstrations and agitations etc. since the authorities
did not take necessary measures to regulate the same - Ramlila
Maidan earmarked for such demonstrations etc, may not be
sufficient to cater to this requirement - Since, Jantar Mantar was
the area chosen by the authorities and has been in use for quite
sometime, balancing can be done by permitting a limited part of
this area for holding peaceful public meetings, processions etc. such
that no disturbance or inconvenience of any nature is caused to the
residents - Commissioner of Police, New Delhi in consultation with
other concerned agencies, to frame proper guidelines for regulating
such protests, demonstrations iin Jantar Mantar and Boat Club area.
[2018] 11 S.C.R. 586
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Arts. 19(1)(a), 19(1)(b) - Right to protest - Held: Holding
peaceful demonstrations by the citizenry to air its grievances is a
fundamental right, enshrined u/Art.19(1)(a) and 19(1)(b), subject
to reasonable restrictions, which can be imposed in the interests of
sovereignty and integrity of India or public order - Legitimate dissent
is a distinguishable feature of any democracy - It is not whether
the issue raised by protestors is right or wrong or is justified or
unjustified - Fundamental aspect is the right which is conferred
upon the affected people in a democracy to voice their grievances
- 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.
Arts. 19(1)(a), 19(1)(b) and 21 - Fundamental rights - Right
of protestors u/Art. 19(1)(a) and 19(1)(b) vis-a-vis the rights of the
residents u/Art. 21 - Balancing of the two rights - Held: Situations
arise where there is conflict between two fundamental rights - In
respect of some person one fundamental right enjoyed by him may
come in conflict with the other fundamental right guaranteed to
him - Principle of primacy cannot be given to one right whereby
the right of the other gets totally extinguished - Total extinction is
not balancing - Balancing would mean curtailing one right of one
class to some extent so that the right of the other class is also protected
- While balancing the two conflicting rights, the Court is to examine
the larger public interest, which would ultimately prevail.
Code of Criminal Procedure, 1973: s. 144 - Repeated
imposition of police order u/s. 144 Cr.P.C. by which Central Delhi
area declared as prohibited area for holding public meeting, dharna
or peaceful protest - Held: These orders do not, on their face, appear
to be illegal as they prohibit public meetings, assembly of five or
more persons, processions, demonstrations, dharnas, etc. 'without
written permission' - Further , such orders are passed on the basis
of intelligence reports which indicate 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 - Reading of these orders would
indicate that there is no absolute prohibition from holding public
meetings, processions, demonstrations, etc - Such activities are to
be restricted in larger public interest and, therefore, before any group
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of persons or person wants to carry out any such processions and
dharnas, it has to take prior written permission - Furthermore,
repeated order passed u/s. 144 in continuum, have created a situation
of perpetuity - Orders issued u/s. 144 prohibit certain activities in
the nature of demonstrations etc. 'without permission', meaning
thereby permission can be granted in certain cases - However, in
reality no such activities are allowed at all and, therefore, the
situation which is created amounts to 'banning' these public
meetings, demonstrations, dharnas, etc. altogether rather than
'regulating' the same.
Disposing of the matters, the Court
HELD: 1. 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. The Commissioner of Police,
New Delhi and other official respondents can frame proper
guidelines for regulating such protests, demonstrations, etc in
Jantar Mantar and Boat Club area. [Para 62, 70] [640-E-F; 643G-H]
2.1 Holding peaceful demonstrations by the citizenry in
order to air its grievances and to ensure that these grievances
are heard in the relevant quarters, is its fundamental right. This
right is specifically enshrined under Article 19(1)(a) and 19(1)(b)
of the Constitution of India. Article 19(1)(a) confers a vary
valuable right on the citizens, namely, right of free speech.
Likewise, Article 19(1)(b) gives right to assemble peacefully and
without arms. Together, both these rights ensure that the people
of this country have right to assemble peacefully and protest
against any of the actions or the 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
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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. [Para 48] [628-B-E]
2.2 The right to protest is recognised as a fundamental right
under the Constitution. This right is crucial in a democracy which
rests on participation of an informed citizenry in governance. This
right is also crucial since it strengthens representative 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. At the same time, the said rights under
Article 19(1)(a) and 19(1)(b) are not untrammeled and unlimited
in their scope. Article 19(2) to (6) make a specific provision for
imposing reasonable restrictions on the rights conferring
restrictions on the exercise of such rights. It can be deciphered
from the said provisions that exercise of right to speech conferred
in clause (a) and right to assemble peacably 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. [Para 54-56] [632-D-G; 633-C]
2.3 The right of protestors u/Art. 19(1)(a) and 19(1)(b) and
the rights of the residents u/Art. 21 are to be balanced as both
the rights are fundamental rights. There may be situations where
conflict may arise between two fundamental rights. Situation can
be conflict on inter fundamental rights, intra fundamental rights
and, in certain peculiar circumstances, in respect of some person
one fundamental right enjoyed by him may come in conflict with
the other fundamental right guaranteed to him. In all such
situations, the Court has to examine as to where lies the larger
public interest while balancing the two conflicting rights. It is the
paramount collective interest which would ultimately prevail.
[Paras 57-58] [633-E-H]
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2.4 Right of people to hold peaceful protests and
demonstrations etc. is a fundamental right guaranteed under
Articles 19(1)(a) and 19(1)(b). 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, is accepted. 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 holding demonstrations and was earmarked by the
authorities as well. The principle of primacy cannot be given to
one right whereby the right of the other gets totally extinguished.
Total extinction is not balancing. Balancing would mean curtailing
one right of one class to some extent so that the right of the
other class is also protected. [Para 61] [639-D-G]
2.5 The pathetic conditions which were caused as a result
of the processions, demonstrations and agitations etc. at the
Jantar Mantar were primarily because of the reason that
authorities did not take necessary measures to regulate the same.
Had adequate and sufficient steps were taken by the authorities
to ensure that such dharnas and demonstrations are held within
their bounds, it would have balanced the rights of protestors as
well as the residents. For example, the dharnas and protests were
allowed to be stretched almost on the entire Jantar Mantar road,
on both sides, and even across the width of the road. Instead, a
particular area could have been earmarked for this purpose,
sufficiently away from the houses etc. so that there is no
unnecessary blockage of roads and pathways. Likewise, the
demonstrators were allowed to go on with non-stop slogans, even
at odd hours, at night, and that too with the use of loudspeakers
etc. The authorities could have ensured that such slogans are
within the parameters of noise pollution norms and there are no
shoutings or slogans at night hours or early morning hours. Again,
these dharnas, agitations and processions could be prohibited
on certain occasions, for example, whenever some foreign
dignitaries visit and pass through the said area or other such
sensitive occasions. The authorities could also ensure that the
protestors do not bring their trucks/buses etc. and park those
vehicles in and around the residential buildings; the protestors
are not allowed to pitch up their tents and stay for days together;
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they are not allowed to bathe or wash their clothes using Delhi
Jal Board tankers or defecate in the open, on pavements; and do
not create any unhygienic situations. 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. 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.
[Para 62] [639-G-H; 640-A-F]
2.6 While discussing the aspect of balancing of two rights,
certain relevant factors have to be kept in mind. It needs to be
noted is that a portion of Ramlila Maidan has been earmarked
for such demonstrations etc. Therefore, that space is already
available. One of the argument raised by the petitioner in the
writ petition and appellants in 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 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. Social media and various applications
like 'WatsApp', 'Twitter', 'Instagram' etc. which take no time in
spreading such events. Though holding protests and
demonstrations is an accepted right, at the same time, nobody
can claim that they 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 requirement. Again, this place in old
Delhi is a part of very congested area and it has its own limitations
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when it comes to using this area for such purposes. Therefore,
some other area is required. Since, Jantar Mantar was the area
chosen by the authorities and has been in use for quite sometime,
balancing can be done by permitting a limited part of this area for
holding peaceful public meetings, processions etc., at least to
small groups and, in such a manner, that there is no disturbance
or inconvenience of any nature whatsoever, insofar as residents
are concerned. [Para 64] [641-B-G]
2.7 The Commissioner of Police, New Delhi in consultation
with other concerned agencies, is directed 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. It is also clarified 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. [Para 65] [641-G-H;
642-A-B]
2.8 As regards, the boat club area to be available for
demonstrations, the respondents highlighted in equal measure
the sensitivity of this area because of its proximity to the Parliament
House, North and South Blocks and other Central Government
offices, including frequent visits of Heads of foreign States and
other such factors. The respondents are also justified in pointing
out that alarmingly large number of requests for holding
demonstrations at this place are made. Further, intelligence
reports reveal that some of such demonstrations, if allowed, may
cause serious law and order situation. The respondents are also
correct to the extent that this Court has not adopted 'clear and
present danger test', as applied by the US Courts, and instead it
is the 'apprehension of breach of peace test' which is to be used
in order to decide as to whether a particular demonstration/dharna
is to be allowed or not. When orders passed under Section 144
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Cr.P.C. are examined in this context, one may not find foul with
such orders. These orders do not, on their face, appear to be
infected with any illegality as they prohibit public meetings,
assembly of five or more persons, processions, demonstrations,
dharnas, etc. 'without written permission'. Further, such orders
are passed on the basis of intelligence reports which indicate
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. [Para 66] [642-C-G]
2.9 The reading of these orders would indicate that there
is no absolute prohibition from holding public meetings,
processions, demonstrations, etc. Such activities are to be
restricted in larger public interest and, therefore, before any group
of persons or person wants 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 said considerations,
there cannot be any quarrel as to the validity of such an order
made under Section 144 of the Cr.P.C. That is, however, not the
ground reality. [Para 68] [643-B-D]
2.10 An order passed under Section 144 Cr.P.C. 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 this position is accepted
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 'unrestricted'
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manner. However, in reality no such activities are allowed at all
and, therefore, the situation which is created amounts to 'banning'
these public meetings, demonstrations, dharnas, etc. altogether
rather than 'regulating' the same. [Para 69] [643-E-G]
2.11 The Commissioner of Police, New Delhi and other
official respondents can frame proper guidelines for regulating
such protests, demonstrations, etc. The orders issued under
Section 144 prohibit certain activities in the nature of
demonstrations etc. 'without permission', meaning thereby
permission can be granted in certain cases. There can, therefore,
be proper guidelines laying down the parameters under which
permission can be granted in the Boat Club area. It can be a very
restrictive and limited use, because of the sensitivities pointed
out by the respondents and also keeping in mind that Ramlila
Maidan is available and Jantar Mantar Road in a regulated
manner shall be available as well, in a couple of months. Thus,
the proposed guidelines may include the provisions for regulating
the numbers of persons intending to participate in such
demonstrations, prescribing the minimum distance from the
Parliament House, North and South Blocks, Supreme Court,
residences of dignitaries etc. within which no such demonstrations
would be allowed; imposing restrictions on certain routes where
normally the Prime Minister, Central Ministers, Judges etc pass
through; not permitting any demonstrations when foreign
dignitaries are visiting a particular place or pass through the
particular route; not allowing firearms, lathis, spears, swords, etc.
to be carried by demonstrators; not allowing them to bring animals
or pitch tents or stay overnight; prescribing time limits for such
demonstrations; and placing restrictions on such demonstrations,
etc. during peak traffic hours. Authorities can permit those
processions and demonstrations which are innocuous by their
very nature. Illustratively, school children carrying out procession
to advance some social cause or candle march by peace loving
group of persons against a social evil or tragic incident. These
are some of the examples given to signify that such demonstrations
can be effectively regulated by adopting various measures instead
of banning them altogether by rejecting every request for such
demonstrations. [Para 70] [643-H; 644-A-F]
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Bano Bee v. Union of India and Anr. Writ Petition
(Civil) No. 5000 of 2010; Madhu Limaye v. SubDivisional Magistrate (1970) 3 SCC 746 : [1971] 2
SCR 711; Bimal Gurun v. Union of India (2018) SCC
Online SC 233; Anita Thakur v. Government of Jammu
and Kashmir (2016) 15 SCC 525; Ramlila Maidan
Incident v. Home Secretary, Union of India and Others
(2012) 5 SCC 1 : [2012] 4 SCR 971; Babulal Parate v.
State of Maharashtra 1961 (3) SCR 423; Kameshwar
Prasad v. State of Bihar (1962) Supp 3 SCR 369; Himat
Lal K. Shah v. Commissioner of Police, Ahmedabad
(1973) 1 SCC 227 : [1973] 2 SCR 266; Subramanian
Swamy v. Union of India, Ministry of Law & Ors. (2016)
7 SCC 221 : [2016] 3 SCR 865; Asha Ranjan v. State
of Bihar and Others (2017) 4 SCC 397 - referred to.
De Jonge v. State of Oregon (1973) US Supreme Court;
Shuttlesworth v. City of Birmingham (1969) U.S.
Supreme Court; Thomas v. Collins (1945) US Supreme
Court; Laporte, R. (on the application of) v. Chief
Constable of Gloucesershire [2006] UKHL 55 -
referred to.
Case Law Reference
[1971] 2 SCR 711
referred to
Para 28
(2016) 15 SCC 525
referred to
Para 30
[2012] 4 SCR 971
referred to
Para 38
[1961] 3 SCR 423
referred to
Para 49
[1962] Supp 3 SCR 369
referred to
Para 50
[1973] 2 SCR 266
referred to
Para 51
[2016] 3 SCR 865
referred to
Para 59
(2017) 4 SCC 397
referred to
Para 60
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF
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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1153 of 2017
Under Article 32 of the Constitution of India.
WITH
C. A. Nos. 862, 863, 864 of 2018.
A. N. S. Nadkarni, ASG, Dr. Shiva Sharma, Rohit Vats, Ms. Monika
Sharma, Daya Krishan Sharma, Prashant Bhushan, KLDS Vinober,
A. Subba Rao, Riju Raj Jamwal, Ms. Madhusmita Bora, Chirag Joshi,
Ghanshyam Joshi, S. S. Shamshery, Rajat Nair, S. Santosh Rebello,
Ms. Nividita Nair, Ms. Sneha Tendulkar, Mayur Jai Singh, Mayri Chawla,
Ms. Ankhi, Adit Khurana, Ms. Kanu Agarwal, Manan Popli, B. V. Balaram
Das, Shadan Farasat, Suhail Rashid Bhat, Yoginder Handoo, Nishant
Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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
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 Cr.P.C. remains in force for a
period of 60 days, simultaneously on the expiry of the said period of
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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, according to the petitioner,
is the arbitrary exercise of power which infringes the fundamental right
of peaceful assembly guaranteed under Article 19(1)(b) of the
Constitution of India. It is stated that by these orders virtually the entire
Central Delhi area is declared a prohibited area for holding public meetings
and dharnas or peaceful protests. The petitioner has, thus, sought a writ
of certiorari seeking quashing of these orders passed under Section 144
of the Cr.P.C. and has also prayed for issuance of writ of mandamus or
any other direction laying down the guidelines for holding public meetings,
dharnas, etc. To be precise, the prayers made in the writ petition are of
the following nature:
"In view of the above-mentioned facts it is respectfully submitted
that this Hon'ble Court may be pleased to:
(a) Issue a writ of certiorari or any other direction to quash the
orders dated 24.01.2017, 25.03.2017, 24.05.2017, 23.07.2017,
22.09.2017 and 31.10.2017 or any other similar orders issued earlier
or subsequent to these dates by the Delhi Police vide which the
entire Central Delhi/New Delhi has been declared as a prohibited
area;
(c) Declare that imposing a blanket ban on all assemblies in Central
Delhi/New Delhi area as illegal;
(d) Declare that repeated promulgation of prohibitory orders under
Section 144 of Code of Criminal Procedure as illegal; and
(f) Pass any other or further appropriate writs, orders, 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
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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 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 system. The NGT after hearing the matter has rendered
its judgment on 5th October, 2017, allowing the Original Application of
Respondent Nos. 1 to 7 with the issuance of following directions:
"I. The respondent Government of Delhi, New Delhi Municipal
Corporation and Police Commissioner, Delhi to immediately stop
all the activities of dharna, protest, agitations, assembling of people,
public speeches, using of loud speakers, etc. at Jantar Mantar
Road.
II. NDMC is directed to remove all make shifts/temporary
structures, loud speakers and public address system from the said
stretch of Jantar Mantar road.
III. NDMC is also directed to remove the garbage/waste lying on
the stretch of Jantar Mantar Road and clear the entire area.
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IV. The respondent shall shift the protestors, agitators and the
people holding dharnas to the alternative site at Ram Leela Maidan,
Ajmeri Gate, forthwith.
V. The respondents are directed to comply with this order within
four weeks from the date of pronouncement of the judgment.
VI. The Chairman, New Delhi Municipal Corporation, the Police
Commissioner, Delhi and Government of NCT of Delhi shall file
their respective compliance report before the Tribunal within five
weeks from the date of the judgment.
When such reports are received, the registry is directed to register
the same and place before the Tribunal. There shall be no order
as to cost."
5. Civil Appeal No. 862 of 2018 has questioned the validity of the
said order on the ground that these 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 exservicemen, 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
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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 institutionalized in processes of the
government and is also used as a means of public audit across the country.
The MKSS has also been a strong supporter and an integral part of the
movement demanding the Right to Work, which played an important
role in ensuring the passage of the National Rural Employment Guarantee
Act (NREGA) in 2005 in India. The MKSS operates through community
support for its activities and honorarium for its volunteers. Full time
volunteers receive minimum wages as their honorarium. This comes
through non-tax deductible donations from individuals that the MKSS
receives.
10. It is pointed out in the petition that the Delhi Police has been
issuing such prohibitory orders under Section 144 of the Cr.P.C. for
several years. It issues fresh orders as soon as the previous order expires.
As per sub-section (4) of Section 144 Cr.P.C., an order can be issued
for a maximum period of two months, therefore, the Delhi Police has
adopted the tactic of issuing the same order repeatedly as a result of
which for the last several years, the entire Central Delhi area is a prohibited
area for the purposes of holding dharnas, peaceful demonstrations, etc.
11. The petitioner has annexed these orders dated 24th January,
2017, 25th March, 2017, 24th May, 2017, 23rd July, 2017, 22nd September,
2017 and 31st October, 2017 as Annexures P-1 to P-6 respectively. All
the orders are identically worded. For the sake of clarity, it would be
apposite to reproduce text of one such order dated 25th March, 2017,
which is as under:
" O R D E R
1. Whereas the areas known as Parliament House, North & South
Block, Central Vista lawns together with its surrounding localities
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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 Cr.P.C., 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 Vijay Chowk , then T/L upto South
Fountain, T/R Dalhousie Road upto R/A Dalhousie Road/ Rajaji
Marg/Dalhousie Road (exclusive R/A), T/R South Block, Rajpath,
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North Block, Central Sectt., Church Road upto Gate No. 35 of
Rashtrapati Bhawan including MP Flats, North Avenue upto R/A
RML (exclusive), Baba Khark Singh Marg upto Gole Dakkhana
(exclusive) T/R Ashoka Road T/L Jai Singh Road, excluding
Sansad Marg/Tolstoy Marg crossing, Sansad Marg upto Registrar
of Co-operative Societies, Old Court Building and Jantar Mantar
Road/Tolstoy Marg Crossing, Jantar Mantar Road upto R/A Jantar
Mantar Road and Ashoka Road. A details map of this area is
enclosed as Annexure to this order.
6. This order shall come into force with effect from 26.03.2017
and shall remain in force for a period of 60 days, i.e., up to
24.05.2017 (both days inclusive) unless withdrawn earlier.
7. Any person contravening this order shall be punishable under
Section 188 of Indian Penal Code.
8. As the notice cannot be served individually on all concerned,
the order is hereby passed 'Ex-Parte'. It shall be published for
the information of public through Press and by affixing copies on
the notice boards of the offices of all District Addl. CsP/DcsP/
Addl. DcsP, AcsP, Tehsil Offices, all Police Stations concerned
and the offices of the NDMs and MCD.
(Ved Bhushan)
Asst. Commissioner of Police,
Sub-Division Parliament Street
New Delhi District"
12. It is averted that Delhi is the national capital, the centre of
power and hence aggrieved citizens from all over the country throng the
city to get their voices heard. Mass protests have been prevalent in
Delhi since colonial times in the form of hartals, 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
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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
Cr.P.C. under the jurisdiction of the New Delhi District declaring certain
areas as prohibited area for holding any public meeting, dharna, peaceful
protest, etc. has been discontinued. Despite this, the practice of repeated
imposition of orders under Section 144 continues, severely restricting
the citizens' fundamental right to protest and peaceful assembly.
14.