IN RE- RAMLILA MAIDAN INCIDENT DT.4-5.06.2011 v. HOME SECRETARY, UNION OF INDIA & ORS

Citation: [2012] 4 S.C.R. 971

Court: Supreme Court of India

Bench: B.S. CHAUHAN, SWATANTER KUMAR

Case summary

IN RE- RAMLILA MAIDAN INCIDENT DT.4-5.06.2011 v. HOME SECRETARY, UNION OF INDIA & ORS.pdf

Judgment text

[2012] 4 S. C. R. 971 IN RE: RAMLILA MAIDAN INCIDENT DT. 4/5. 06. 2011 v. HOME SECRETARY, UNION OF INDIA & ORS. (Suo Motu Writ Petition (Crl. ) No. 122 of 2011) FEBRUARY 23, 2012 [DR. B. S. CHAUHAN AND SWATANTER KUMAR, JJ. ] Code of Criminal Procedure, 1973- s. 144 rlw s. 134 and the Delhi Police Standing Order 309 - Public agitation - Police crackdown at midnight on members of sleeping congregation - Action against erring police officials - Compensation to victims - Respondent no.

4- Trust had obtained permission of the Deputy Commissioner of Police for holding a yoga training camp between 1st June, 2011 to 20th June, 2011 at Ramlila Maidan, an enclosed public o ground in Delhi - On 4th June, 2011, Yoga Guru Baba Ramdev, who had been leading an Anti-corruption campaign, commenced hunger strike/fast at the said camp to protest against black money and corruption - Permission granted to hold the said camp subsequently revoked and on the night of 4th/5th June, 2011 while Baba Ramdev and his followers were sleeping in the Maidan, they were forcibly woken up in purported exercise of the police powers conferred uls. 144 CrPC on the strength of a prohibitory order dated 4th June, 2011 passed by the Assistant Commissioner of Police - Police resorted to use of teargas and lathi charge in order to disperse the assembly as a result of which a number of men and women were injured, some seriously and also finally resulted into the death of one Smt.

Rajbala - There was also damage to property - Suo motu proceedings by Supreme Court - Held: In the facts of the case, the State and the Police could have av_oided this tragic incident by exercising greater restraint, patience and resilience- The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed - The decision to forcibly evict the innocent public sleeping on the Ramlila Maidan in the midnight of 4th/5th June, 2011, whether taken by the police independently or in consultation with the Ministry of Home Affairs was amiss and suffered from element of arbitrariness and abuse of power to some extent - The restriction imposed on the right to freedom of speech 8 and expression was unsupported by cogent reasons and material facts - The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in the Indian Constitution - The police failed to establish that a situation had arisen where there was imminent need to intervene - Disciplinary action directed to be taken against erring police officers/personnel who indulged in brickbatting, resorted to lathi charge and excessive use of tear gas shells upon the crowd or did not help in transportation of sick and injured people to the hospitals - Direction for registration of criminal cases against police personnel as also members of the gathering at the Ramli/a Maidan (followers of Baba Ramdev or otherwise) who indulged in damage to property - Ad-hoc compensation of Rs.

5 lacs to legal heirs of Smt. Rajbala; Rs. 50,0001- each to persons who suffered grievous injuries and were admitted to hospital and Rs. 25, 0001- each to persons who suffered simple injuries and were taken to hospital but discharged after a short while - However, consequences of financial liability to pass, though to a limited extent, upon respondent no. 4-Trust as well - Respondent no. 4 was guilty of contributory negligence - The Trust and its representatives ought to have discharged their legal and moral duty and should have fully cooperated in the effective implementation of the order passed u/s. 144 CrPC - Due to the stature that Baba Ramdev enjoyed with his followers, it was expected of him to request the gathering to disperse peacefully and leave the Ramlila Maidan - Accordingly, in cases of death and grievous hurt, 25% of the awarded compensation to be paid by the Trust - Constitution of India, 1950 - Articles 19(1)(a), 19(1)(b), 19(2) and 19(3).

IN RE: RAMLILAMAIDAN INCIDENTDT. 4/5. 06. 2011 v. HOME 973 SECRETARY, UNION OF INDIA Human Rights - Right to sleep - Public agitation - Police crackdown at midnight on members of sleeping congregation - Suo motu proceedings by Supreme Court - Held (per Dr. B. S. Chauhan, J. ): Sleep is a fundamental and basic requirement without which the existence of life itself would be in peril - To disturb sleep would amount to torture which is now accepted as a violation of human right - A sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. Respondent no. 4-Bharat Swabhiman Trust, Delhi Area had obtained permission of the Deputy Commissioner of Police for holding a yoga training camp between 1st June, 2011 to 20th June, 2011 at Ramlila Maidan, an enclosed public ground in Delhi.

On 4th June, 2011, Yoga Guru Baba Ramdev, who had been leading an Anti-corruption campaign, commenced hunger strike/ fast at the said camp to protest against black money and corruption. The permission granted to hold the said camp was subsequently revoked and on the night of 4th/ 5th June, 2011 while Baba Ramdev and his followers were sleeping in the Maidan under tents and canopies, they were forcibly woken up in purported exercise of the police powers conferred under Section 144 CrPC on the strength of a prohibitory order dated 4th June, 2011 passed by the Assistant Commissioner of Police. The Police thereafter resorted to use of teargas and lathi charge in order to disperse the assembly which had, by that time, been declared unlawful. As a result of this action by the Police, a number of men and women were injured, some seriously. This also finally resulted into the death of one Smt. Rajbala. There was also damage to property.

The said police action was termed as brutal and uncalled for by the Press. Taking suo motu cognizance of the said Ramlila Maidan incident dated 4th/ 5th June, 2011, the Supreme Court examined issues pertaining to liberty and freedom, guaranteed to Indian citizens as fundamental rights under the Constitution and the possible lawful restrictions than can be imposed for curtailing such rights; as also the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 CrPC. Disposing of the suo motu writ petition, the Court HELD: Per Swatanter Kumar, J. 1. 1. Rights, restrictions and duties co -exist. As, on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, there, on the other, it is also necessary to place reins on 0 this freedom for the maintenance of social order. The term 'social order' has a very wide ambit.

It includes 'law and order', 'public order' as well as 'the security of the State'. [Para 30) [1014-A, BJ 1. 2. 'Security of the State' is paramount and the State can impose restrictions upon the freedom, which may comparatively· be more stringent than those imposed in relation to maintenance of 'public order' and 'law and order'. However stringent may these restrictions be, they must stand the test of 'reasonability'. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution. It is keeping this distinction in mind, the Legislature, under Section 144 Cr. P. C.

, has empowered the District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this SECRETARY, UNION OF INDIA Section exists and immediate prevention and/or speedy remedy is desirable. [Paras 35, 36] [1017-D-G] Babula/ Parate v. State of Maharashtra (1961) 3 SCR 423; State of West Bengal v. Subodh Gopal Bose AIR 1954 SC 92: 1954 SCR 587; Maneka Gandhi v. UOI AIR 1978 SC 597: 1978 (2) SCR 621; Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544: 1979 (1) SCR 192; S. Rangarajan v. Jagjivan Ram (1989) 2 SCC 574: 1989 (2) SCR 204; State of Madras v. V. G. Row AIR 1952 SC 196: 1952 SCR 597; Chintamanrao & Anr. v. State of Madhya Pradesh AIR 1951 SC 118: 1950 SCR 759; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others (2005) 8 SCC 534:2005 (4) Suppl.

SCR 582; Romesh Thappar v. State of Madras (1950) SCR 594; Dr. Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740: 1966 SCR 709; Dr. D. C. Saxena v. Hon'b/e the Chief Justice of India (1996) 5 SCC 216: 1996 (3) Suppl. SCR 677; Union of India v. Naveen Jindal and Anr. (2004) 2 SCC 510: 2004 (1) SCR 1038; Madhu Limaye v. Sub Divisional Magistrate and Ors. AIR 1971 SC 2481: 1971 SCR 742; Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. (1973) 1 SCC 227: 1973 (2) SCR 266; State of Kamataka v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684: 2004 (3) SCR 652; S. Pratap Singh v. The State of Punjab (1964) 4 SCR 733 and Oestruction of Public and Private Properties, In Re v. State of Andhra Pradesh and Ors. (2009) 5 SCC 212: 2009 (6) SCR 439 - referred to. Schenck v. United States [63] Led 1173 and Feiner v. New York (1951) 340 U. S. 315 - referred to. Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966; Constitution of India, (2nd Edn. ), Volume 1 by Dr.

L. M. Singhvi and 'Constitutional Law of India' by H. M. Seervai (Fourth Edn. ), Vol. 1 and Preamble, The Spirit and Backbone of the Constitution of India, by Justice R. C. Lahoti; Black's Law Dictionary - Twentieth Edn. ; Concise Oxford English Dictionary - Eleventh Edn. and Clerk & Lindsel/ on Torts, Twentieth Edition - referred to. The scope of an order made under Section 144 Cr. P. C.. 8 its implications and infirmities with reference to the facts of the case in hand 2. 1. An order passed in anticipation by the Magistrate empowered under Section 144 Cr. P. C. is not an encroachment of the freedom granted under Articles 19(1 )(a) and 19(1 )(b) of the Constitution and it is not regarded as an unreasonable restriction. It is an executive order, open to judicial review.

In exercise of its executive power the executive authority, by a written order and upon giving material facts, may pass an order issuing a direction requiring a person to abstain from doing certain acts or take certain actions/orders with respect to certain properties in his possession, if the officer considers that such an order is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person. On the bare reading of the language of Section 144 Cr. P. C. , it is clear that the entire basis of an action under this Section is the 'urgency of the situation' and the power therein is intended to be availed for preventing 'disorder, obstruction and annoyance', with a view to secure the public weal by maintaining public peace and tranquility. [Para 156) [1088-D-GJ 2. 2. In the instant case, the threat of going bn a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law.

It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence. The order passed under Section 144 Cr. P. C. does not give any material facts or such compelling circumstances that IN RE: RAMLll. AMAIDAN INCIDENTDT. 4/5. 06. 2011 v. HOME 977 SECRETARY, UNION OF INDIA would justify the passing of such an order at 11. 30 p. m. on 4th June, 2011. There should have existed some exceptional circumstances which reflected a clear and prominent threat to public order and public tranquility for the authorities to pass orders of withdrawal of permission at 9. 30 p. m. on 4th June, 2011. What weighed so heavily with the authorities so as to compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. The Order under Section 144 Cr.

PC does not contain material facts and it is also evident from the bare reading of the Order that it did not direct Baba Ramdev or respondent No. 4 to take certain actions or not take certain actions which is not only the purpose but is also the object of passing an Order under Section 144, Cr. P. C. [Paras 171, 174] [1097-B-D; 1098-E] 2. 3. From the record before this Court, it is not clear as to why the State did not expect obedience and cooperation from Baba Ramdev in regard to execution of its lawful orders, particularly when after withdrawal of the permission for holding dharna at Jantar Mantar, Baba Ramdev had accepted the request of the Police not to go to Jantar Mantar with his followers. The attendant circumstances appearing on record as on 3rd June, 2011 i. e. the preceding day did not show any intention on their part to flout the orders of the authorities or to cause any social disorder or show threat to public tranquility by their action.

Material facts, imminent threat and requirement for immediate preventive steps should exist simultaneously for passing any order under Section 144 Cr. P. C. The mere change in the purpose or in the number of persons to be gathered at the Ramlila Maidan simplicitor could hardly be the cause of such a grave concern for the authorities to pass the orders late in the night. In the circumstances of the case, it appears that it was not necessary for the executive authorities and the Police to pass orders under Section 144 Cr. P. C. and withdraw the permissions. The [2012] 4 S. C. R. matter could be resolved by mutual deliberation and intervention by the appropriate authorities. [Para 179] [1100-E-F-H; 1101-A-D] 2. 4. The events, right from January 2011, showed that all the camps and protests organized by the Trust, under B. the leadership of Baba Ramdev had been completed peacefully, without any damage to person or property and without any disturbance to anyone.

The action of the Police in revoking the permissions as well as that of the executive authorities in passing the order under Section 144 Cr. P. C. was a colourable exercise of power and was not called for in the facts and circumstances of the case. [Para 182] (1103-A-B] 2. 5. It is also not understandable that if the general 'threat perception' and likelihood of communal disharmony were the grounds for revoking the permission and passing the order under Section 144 Cr. P. C. , then why the order passed under Section 144 Cr. P. C. permitted all other rallies, processions which had obtained the Police permission to go on in the area of the same Police Division. The decision, therefore, appears to be contradictory in terms. [Para 183] [1103-C-D] 2. 6. Existence of sufficient ground is the sine qua non for invoking the power vested in the executive under Section 144 Cr. P. C. It is a very onerous duty that is cast upon the empowered officer by the legislature.

The perception of threat should be real and not imaginary or a mere likely possibility. The test laid down in this Section is not that of 'merely likelihood or tendency'. The legislature, in its wisdom, has empowered an officer of the executive to discharge this duty with great caution, as the power extends to placing a restriction and in certain situations, even a prohibition, on the exercise of the fundamental right to freedom of speech and expression. Thus, in case of a mere apprehension, without any material facts to indicate that the IN RE: RAMLILAMAIDAN INCIDENTDT. 4/5. 06. 2011 v. HOME 979 SECRETARY, UNION OF INDIA apprehension is imminent and genuine, it may not be proper for the authorities to place such a restriction upon the rights of the citizen. All the grounds stated were considered at various levels of the Government and the Police and they had considered it appropriate not to withdraw the permissions or impose the restriction of Section 144 Cr. P. C.

even till 3rd June, 2011. Thus, it was expected of the authorities to show before the Court that some very material information, fact or event had occurred between 3rd and 4th June, 2011, which could be described as the determinative factor for the authorities to change their mind and pass these orders. [Para 184] [1103-E-H; 1104-A-B] 2. 7. The administration, upon taking into consideration the intelligence inputs, threat perception, likelihood of disturbance to public order and other relevant considerations, had not only prepared its planned course of action but also declared the same. In furtherance thereto, the Police also issued directions for compliance to the organizers. The authorities, thus, had full opportunity to exercise their power to make a choice permitting continuation and/or cancellation of the programme and thereby prohibit the activity on the Ramlila Maidan.

However, in their wisdom, they opted to permit the continuation of the agitation and holding of the yoga shivir, thereby impliedly permitting the same, even in the changed circumstances, as alleged. Quinon prohibit qua prohibere protest asentire videthir (He who does not prohibit when he is able to prohibit assents to it). [Para 185] [1104-D-F] 2. 8. The authorities are expected to seriously cogitate over the matter in its entirety keeping the common welfare in mind. The Police have not placed on record any document or even affidavits to show such sudden change of circumstances, compelling the authorities to take the action that they took. Denial of a right to hold such meeting has to be under exceptional circumstances and strictly with the object of preventing public tranquility and public order from being disturbed. [Para 186] [1104- G-H; 1105-A] Gu/am Abbas v. State of Uttar Pradesh AIR 1981 SC 8 2198: 1982 (1) SCR 1077 - referred to.

Reasonable notice is a requirement of Section 144 Cr. P. C. 3. 1. The language of Section 144 Cr. P. C. does not contemplate grant of any time for implementation of the directions relating to the prevention or prohibition of certain acts for which the order is passed against the person(s). It is a settled rule of law that wherever provision of a statute does not provide for a specific time, the same 0 has to be done within a reasonable time. Again reasonable time cannot have a fixed connotation. It must depend upon the facts and circumstances of a given case. There may also be cases where the order passed by an Executive Magistrate under Section 144 Cr. P. C.

requires to be executed forthwith, as delay in its execution may frustrate the very purpose of such an order and may cause disastrous results like rioting, disturbance of public order and public tranquility, while there may be other cases where it is possible, on the principles of common prudence, that some time could be granted for enforcement and complete implementation of the order passed by the Executive Authority under Section 144 Cr. P. C. [Para 187] [1105-B-E] 3. 2. In the instant case, all the persons who had gathered in the tent at the Ramlila Maidan were sleeping when the Police went there to serve the order passed under Section 144 Cr. P. C. upon the representatives of the Trust; the order itself having been passed at 11. 30 p. m. on 4th June, 2011.

Nothing prevented the authorities SECRETARY, UNION OF INDIA from making proper announcements peacefully requiring the persons gathered at the Ramlila Maidan to leave for their respective homes early in the morning and before the yoga camp could resume. Simultaneously, they could also have prohibited entry into the Ramlila Maidan, as the same was being controlled by the Police itself. No facts or circumstances have been stated which could explain as to why it was absolutely necessary for the Police to wake up the people from their sleep and force their eviction, in a manner in which it has been done at the late hours of night. In absence of any explanation and special circumstances placed on record, in the facts of the present case, it was quite possible and even desirable for the authorities concerned to grant a reasonable time for eviction from the ground and enforcement of the orders passed under Section 144 Cr. P. C.

Except in cases of 0 emergency or the situation unexceptionally demanding so, reasonable notice/time for execution of the order or compliance of the directions issued in the order itself or in furtherance thereto is the pre-requisite. (Para 189] (1106-C-D, F-H; 1107-A-B] 3. 3. Non-grant of reasonable time and undue haste on the part of the Police authorities to enforce the orders under Section 144 Cr. P. C. instantaneously had resulted in the unfortunate incident of human irony which could i1ave been avoided with little more patience and control. It was expected of the Police authorities to bastion the rights of the citizens of the country. However, undue haste on the part of the Police created angst and disarray amongst the gathering at the Ramlila Maidan, which finally resulted in this sad cataclysm.

[Para 190] [1107-C- DJ Requirement of Police permission and its effect on the right conferred in terms of Articles 19(1)(a) and 19(1)(b) respectively with reference to the facts of the present ~ 4. 1. Associating Police as a pre-requirement to hold meetings, dharnas and protests, on large scale, would not infringe the fundamental rights enshrined under Articles 19(1 )(a) and 19(1 )(b) of the Constitution as this would squarely fall within the regulatory mechanism of s reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of the others, as contemplated under Article 21 of the Constitution of India. That would be the correct approach of law. [Para 220] [1120-E-F] 4. 2. In the instant case, however, the action of the Police was arbitrary. The Police action led to a terror in the minds of members of the assembly and finally the untoward incident.

Here the onus was on the Police Authorities to show existence of such circumstances at the spot when, admittedly, all persons were sleeping peacefully. The courts have to realize that the rights of the organizers and other members of the Society had to be protected if a law and order situation was created as a result of a given situation. [Paras 204, 205] [1114-A, D, E, F] Babula/ Parate v. State of Maharashtra (1961) 3 SCR 423; Madhu Limaye v. Sub Divisional Magistrate and Ors. AIR 1971 SC 2481: 1971 SCR 742; Amitabh Bachchan Corpn. Ltd. v. Mahi/a Jagran Manch & Ors. (1997) 7 SCC 91; R. K. Garg v. Superintendent, District Jail, Saharanpur & Ors. (1970) 3 SCC 227; State of Karnataka v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684: 2004 (3) SCR 652; Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. (1973) 1 SCC 227: 1973 (2) SCR 266; Destruction of Public and Private Properties, In Re v. State of Andhra Pradesh and Ors. (2009) 5 SCC 212: 2009 (6) SCR 439 and Union of India v.

Association of Democratic Reforms (2002) 3 SCC 696 referred to. IN RE: RAMLILAMAIDAN INCIDENTDT4/5. 06. 2011 v. HOME 983 SECRETARY, UNION OF INDIA Responsibility of the Trust, Members of the Assembly, their status and duty 5. 1. Once an order under Section 144 Cr. P. C. is passed by the competent authority and such order directs certain acts to be done or abstains from doing 8 certain acts and such order is in force, any assembly, which initially might have been a lawful assembly, would become an Linlawful assembly and the people so assembled would be required to disperse in furtherance to such order. A person can not only be held responsible for his own act, but, in light of Section 149 IPC, if the offence is committed by any member of the unlawful assembly in prosecution of a common object of that assembly, every member of such assembly would become member of the unlawful assembly. [Para 223) [1121-C-E] 5. 2.

In the instant case, the Police was concerned with the problem of law and order while respondent No. 4 and Baba Ramdev certainly should have been concerned about the welfare of their followers and the large gathering present at the Ramlila Maidan. Thus, to that extent, the Police and respondent No. 4 ought to . have acted in tandem and ensured that no damage to the person or property should take place, which unfortunately did not happen. Keeping in view the stature and respect that Baba Ramdev enjoyed with his followers, he ought to have exercised the moral authority of his office in the welfare of the people present. There exists a clear constitutional duty, legal liability and moral responsibility to ensure due implementation of lawful orders and to maintain the basic rule of law.

It would have served the greater public purpose and even the purpose of the protests for which the rally was being held, if Baba Ramdev had requested his followers to instantaneously leave Ramlila Maidan peacefully or had assured the Authorities that the morning yoga programme or protest programme would be cancelled and the people would be requested to leave for their respective places. Absence of performance of this duty and the gesture of Baba Ramdev led to an avoidable lacerating episode. Even if there was undue haste, adamancy and negligence on the part of the Police authorities, then also to this negligence, there was a contribution by respondent No. 4 as well. The role of Baba Ramdev at that crucial juncture could have turned the tide and probably brought a peaceful end rather than the heart rending end of injuries and unfortunate deaths.

Even if it is assumed that the action of the Police was wrong in law, it gave no right to others to commit any offence /njuria non excusat injuriam. [Para 233] [1126-C-H; 1127-A] 5. 3. Every law abiding citizen should respect the law and must stand in conformity with the rule, be as high an individual may be. Violation of orders has been made punitive under the provisions of Section 188 IPC, but still in other allied proceedings, it would result in fastening the liability on all contributory partners, may be vicariously, but the liability certainly would extend to all the defaulting parties. In the circumstances of the instant case, Baba Ramdev and the office bearers of respondent No. 4 contributed to the negligence leading to the occurrence in question and are vicariously liable for such action. [Para 234] [1127-B-C] Municipal Corporation of Greater Bombay v. Shri Laxman Iyer & Anr. AIR 2003 SC 4182: 2003 (4) Suppl. SCR 984 and Municipal Corporation of Delhi, Delhi v.

Association of Victims of Uphaar Tragedy and others [C. A. Nos. 7114- 7115 of 2003 with C. A. No. 7116 of 2003 and C. A. No. 6748 of 2004, pronounced on 13th October, 2011] - referred to. Nance v. British Columbia Electric Ry. (1951) A. C. 601 - referred to. IN RE: RAMULA MAIDAN INCIDENT DT4/5. 06. 2011 v. HOME 985 SECRETARY, UNION OF INDIA Clerk & Lindsell on Torts, Twentieth Edition, page 246 and Charlesworth & Percy on Negligence, Eleventh Edition, pages 195, 206 - referred to. Findings and Directions: 6. (i) In discharge of its judicial functions, the courts do not strike down the law or quash the State action with the aim of obstructing democracy in the name of preserving democratic process, but as a contribution to the governmental system, to make it fair, judicious and transparent. The courts take care of interests which are not sufficiently defended elsewhere and/or of the victims of State action, in exercise of its power of judicial review.

In the facts of the present case, the State and the o Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed. The decision to forcibly evict the innocent public sleeping on the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by the police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an invasion of the liberties and exercise of fundamental freedoms. The members of the assembly had legal protections available to them even under the provisions of the Cr. P. C. Thus, the restriction was unreasonable and unwarrantedly executed.

The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution. Except in cases of emergency or the situation unexceptionably demanding so, reasonable notice/time for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre-requisite. It was primarily an error of performance of duty both by the police and respondent No. 4 but the ultimate sufferer was the public at large. (ii) It is evident that it was not a case of emergency. The police have failed to establish that a situation had arisen where there was imminent need to intervene, having regard to the sensitivity and perniciously perilous consequences that could have resulted, if such harsh measures had not been taken forthwith. (iii) The State has a duty to ensure fulfillment of the freedom enshrined in our Constitution and so it has a duty to protect itself against certain unlawful actions.

It may, therefore, enact laws which would ensure such protection. The rights and the liberties are not absolute in nature and uncontrolled in operation. While placing the two, the rule of justice and fair play requires that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness or arbitrariness, resultantly vitiating the law, the procedure and the action taken thereunder. (iv) It is neither correct nor judicially permissible to say that taking of police permission for holding of dharnas, processions and rallies of the present kind is irrelevant or not required in law. Thus, the requirement of associating police, which is an important organ of the State for ensuring implementation of the rule of law, while holding such large scale meetings, dharnas and protests, would SECRETARY, UNION OF ! NOIA not infringe the fundamental rights enshrined under Articles 19(1 )(a) and 19(1 )(b) of the Constitution.

This would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article 21 of the Constitution of India. The police authorities, who are required to maintain the social order and public tranquility, should have a say in the organizational matters relating to holding of dharnas, processions, agitations and rallies of the present kind. However, such consent should be considered in a very objective manner by the police authorities to ensure the exercise of the right to freedom of speech and expression as understood in 0 its wider connotation, rather than use the power to frustrate or throttle the constitutional right. Refusal and/or withdrawal of permission should be for valid and exceptional reasons.

The executive power, to cause a restriction on a constitutional right within the scope of Section 144 Cr. P. C. , has to be used sparingly and very cautiously. The authority of the police to issue such permission has an inbuilt element of caution and guided exercise of power and should be in the interest of the public. Such an exercise of power by the Police should be aimed at attainment of fundamental freedom rather than improper suppression of the said right. (v) Respondent no. 4 is guilty of contributory negligence. The Trust and its representatives ought to have discharged their legal and moral duty and should have fully cooperated in the effective implementation of a lawful order passed by the competent authority under Section 144 Cr. P. C. Due to the stature that Baba Ramdev enjoyed with his followers, it was expected of him to request the gathering to disperse peacefully and leave the Ramlila Maidan.

He ought not have insisted on continuing with his activity at the place of occurrence. Respondent no. 4 and all its 8 representatives were bound by the constitutional and fundamental duty to safeguard public property and to abjure violence. Thus, there was legal and moral duty cast upon the members of the Trust to request and persuade people to leave the Ramlila Maidan which could have obviously avoided the confrontation between the police and the members of the gathering at the Ramlila Maidan. (vi) As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult it is to imagine existence of a right not coupled with a duty. The duty may be a direct or an indirect consequence of a fair assertion of the right. Part Ill of the Constitution, although confers rights, duties, regulations and restrictions are inherent thereunder. It can be stated with certainty that the freedom of speech is the bulwark of democratic Government.

This freedom is essential for the appropriate functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty in the hierarchy of liberties granted under our constitutional mandate. (vii) The provisions of Section 144 Cr. P. C. are attracted in emergent situations. Emergent power has to be exercised for the purposes of maintaining public order. The material facts, therefore, should demonstrate that the action is being taken for maintenance of public order, public tranquility and harmony. IN RE: RAMLILAMAIDAN INCIDENTDT. 4/5. 06. 2011 v. HOME 989 SECRETARY. UNION OF INDIA (viii) Even if an order under Section 144 Cr. P. C. had to be given effect to, still Respondent no. 4 had a right to stay at the Ramlila Maidan with permissible number of people as the land owning authority-MCD had not revoked its permission and the same was valid till 20th June, 2011.

The chain of events reveals that it was a case of police excesses and, to a limited extent, even abuse of power. (ix) From the material placed before the Court, it cannot be held that the order passed by the competent authority and execution thereof are ma/a fide in law or in fact or is an abdication of power and functions by the Police. The action, of course, partially suffers from the vice of arbitrariness but every arbitrary action necessarily need not be ma/a fide. Similarly every incorrect decision in law or on facts of a given case may also not be ma/a fide but every ma/a fide decision would be an incorrect and impermissible decision and would be vitiated in law. Upon taking into consideration the cumulative effect of the affidavits filed on record and other documentary evidence, one is unable to dispel the argument that the decision of the Ministry of Home Affairs, Union of India reflected its shadow on the decision-making process and decision of the police authorities.

(x) Also there would be no illegality if the police authorities had acted in consultation with the Union Ministry as it is the collective responsibility of various departments of the State to ensure maintenance of law and order and public safety in the State. (xi) Every person/body to whom such permission is granted, shall give an undertaking to the authorities concerned that he/it will cooperate in carrying out their duty and any lawful orders passed by any competent court/authority/forum at any stage of the commencement of an agitationldharnal procession and/or period during which the permission granted is enforced. This, of course, shall be subject to such orders as may be passed by the court of competent jurisdiction. (xii) Even on the touchstone of the principle of 'in terrorem', the police have not acted with restraint or adhered to the principle of 'least invasion' with the constitutional and legal rights available to respondent no.

4 and the members of the gathering at the Ramlila Maidan. (xiii) The present case is a glaring example of trust deficit between the people governing and the people to be governed. Greater confidence needs to be built between the authorities in power and the public at large. Thus, while considering the 'threat perception' as a ground for revoking such permissions or passing an order under Section 144 Cr. P. C. , 'care perception' has to be treated as an integral part thereof. 'Care perception' is an obligation of the State while performing its constitutional duty and maintaining social order. (xiv) The police authorities should take such actions properly and strictly in accordance with the Guidelines, Standing Orders and the Rules applicable thereto.

It is not only desirable but also a mandatory requirement of the present day that the State and the police authorities should have a complete and effective dispersement plan in place, before evicting the gathering by use of force from a particular place, in furtherance to an order passed by an executive authority under Section 144 of the Cr. P. C. IN RE: RAMLILA MAIDAN INCIDENT 014/5. 06. 2011 v. HOME 991 SECRETARY, UNION OF INDIA (xv) This is not a case where the Court can come to the conclusion that the entire police force has acted in violation to the Rules, Standing orders and have fallen stray in their uncontrolled zeal of forcibly evicting innocent public from the Ramlila Maidan. There has to be a clear distinction between the cases of responsibility of the force collectively and the responsibility of individual members of the forces.

It is found from the evidence on record that some of the police officers/personnel were very cooperative with the members of the assembly and helped them to vacate the Ramlila Maidan while others were violent, inflicted cane injuries, threw bricks and even used tear-gas shells, causing fire on the stage and total commotion and confusion amongst the large gathering at the Ramlila Maidan. Therefore, these two 0 classes of Police Force have to be treated differently.

(xvi) Thus, while directing the State Government and the Commissioner of Police to register and investigate cases of criminal acts and offences, destruction of private and public property against the police officers/personnel along with those members of the assembly, who threw bricks at the police force causing injuries to the members of the force as well as damage to the property, the following directions are issued: a) Take disciplinary action against all the erring police officers/personnel who have indulged in brick-batting, have resorted to lathi charge and excessive use of tear gas shells upon the crowd, have exceeded their authority or have acted in a manner not permissible under the prescribed procedures, rules or the standing orders and their actions have an element of criminality.

This action shall be taken against the officer/personnel irrespective of what ranks they hold in the hierarchy of police; b) The police personnel who were present in the panda/ and still did not help the evacuation of the large gathering and in transportation of sick and injured people to the hospitals have also rendered themselves liable for appropriate disciplinary action and c) The police shall also register criminal cases against the police personnel and members of the gathering at the Ramlila ground (whether they were followers of Baba Ramdev or otherwise) who indulged in damage to the property, brick-batting etc. All these cases have already been reported to the Police Station Kamla Market. The police shall complete the investigation and file a report under section 173 of the Cr. P. C. within three months. (xvii) Also, the persons who died or were injured in this unfortunate incident should be awarded ad hoc compensation. Smt.

Rajbala, who got spinal injury in the incident and subsequently died, would be entitled to the ad-hoc compensation of Rs. 5 lacs while persons who suffered grievous injuries and were admitted to the hospital would be entitled to compensation of Rs. 50,000/- each and persons who suffered simple injuries and were taken to the hospital but discharged after a short while would be entitled to a compensation of Rs. 25,000/- each. For breach of the legal and moral duty and for its contributory negligence, the consequences of financial liability would also pass, though to a limited extent, upon the respondent no. 4-Trust as well. Thus, it is directed that in cases of death and grievous hurt, 25% of the awarded compensation shall be paid by the Trust. The said amount shall be paid to the Commissioner of Police, who in turn, shall issue a cheque for the entire amount in favour of the injured or the person claiming for the deceased.

[Para 234) [1127-D-H; 1128-A-D, F-H; 1129-A-H; 1130-A-H; 1131- A-ff; 1132-A-H; 1133-A-H; 1134-A-H; 1135-A-F] IN RE: RAMLILAMAIDAN INCIDENT DT. 4/5. 06. 2011 v. HOME 993 SECRETARY, UNION OF INDIA 6. 2. The compensation awarded by this Court shall be treated as ad-hoc compensation and in the event, the deceased or the injured persons or the persons claiming through them institute any legal proceedings for that purpose, the compensation awarded in this judgment shall be adjusted in those proceedings. [Para 235) [1135- G-H; 1136-A] Per Dr. B. S. Chauhan, J. [Supplementing] HELD:1. 1. The right to peacefully and lawfully assemble together and to freely express oneself coupled with the right to know about such expression is guaranteed under Article 19 of the Constitution of India. Such a right is inherent and is also coupled with the right to freedom and liberty which have been conferred under Article 21 of the Constitution of India. [para 7) [1138-C] 1. 2.

In the instant case, the fact remains that implementation of promulgated prohibitory orders was taken when the crowd was asleep. The said assembly per-se, at that moment, did not prima facie reflect any apprehension of eminent threat or danger to public peace and tranquillity nor any active demonstration was being performed at that dead hour of night. [Para 8) [1138-E-F] 1. 3. It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state. A person cannot be presumed to be engaged in a criminal activity or an activity to disturb peace of mind when asleep. To presume that a person was scheming to disrupt public peace while asleep would be unjust and would be entering into the dreams of that person. [Paras 11, 12] [1139-G; 1141-B-C] 1. 4. There may be a reason available to impose prohibitory orders calling upon an assembly to disperse, but, there does not appear to be any plausible reason for [2012] 4 S. C. R.

the police to resort to blows on a sleeping crowd and to throw them out of their encampments abruptly. The affidavits and explanation given do not disclose as to why the police could not wait till morning and provide a reasonable time to this crowd to disperse peacefully. The undue haste caused a huge disarray and resulted in a catastrophe that was witnessed on Media and Television throughout the country. The incident in this litigation is an example of a weird expression of the desire of a tyrannical mind to threaten peaceful life suddenly for no justification. The precipitate action was nothing but a clear violation of human rights and a definite violation of procedure for achieving the end of dispersing a crowd. [Para 13] [1141-C-E, F-H] 1. 5. The State authorities are under a legal obligation to act in a manner that is fair and just. It has to act honestly and in good faith.

Privacy and dignity of human life has always been considered a fundamental human right of every human being like any other key values such as freedom of association and freedom of speech. Every act which offends or impairs human dignity tantamounts to deprivation pro tanto of his right to live and the State action must be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. [Paras 16, 17] [1142-E-G; 1143-A] 1. 6. Right to privacy has been held to be a fundamental right of the citizen being an integral part of Article 21 of the Constitution of India. Illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit in the right to life and liberty guaranteed under the Indian Constitution. However, right of privacy may not be absolute and in exceptional circumstance particularly surveillance in consonance with the statutory provisions may not violate such a right.

IN RE: RAMLILA MAIDAN INCIDENT 014/5. 06. 2011 v. HOME 995 SECRETARY, UNION OF INDIA [Para 21) [1144-C-D] GVK Industries Ltd. &. Anr. v. Income Tax Officer&. Anr. (2011) 4 SCC 36: 2011 (3) SCR 366; Nandini Sundar & Ors. v. State of Chhatisgarh AIR 2011 SC 2839: 2011 (7) SCC 547; H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia 8 Bahadur & Ors. v. Union of India AIR 1971 SC 530: 1971 (3) SCR 9; Mis Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. &. Ors. AIR 1979 SC 621: 1979 (2) SCR 641; D. K. Basu v. State of West Bengal AIR 1997 SC 610: 1996 (10) Suppl. SCR 284; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi &. Ors. AIR 1981 SC 746: 1981 (2) SCR 516; Kharak Singh v. State of U. P. & Ors. AIR 1963 SC 1295: 1964 SCR 332 Govind v. State of Madhya Pradesh & Anr. AIR 1975 SC 1378: 1975 (3) SCR 946; People's Union for Civil Liberties v. Union of India &. Anr. AIR 1997 SC 568: 1996 (10) Suppl. SCR 321; Wolf v. Colorado (1948) 338 US 25; Malak Singh etc. v.

State of Punjab & Haryana & Ors. AIR 1981 SC 760: 1981 (2) SCR 311; State of Maharashtra & Anr. v. Madhukar Narayan Mardikar AIR 1991 SC 207: 1991 (1) SCC 57; R. Rajagopal @R. R. Gopal &Anr. v. State of Tamil Nadu & Ors. AIR 1995 SC 264: 1994 (4) Suppl. SCR 353; PUCL v. Union of India & Anr. AIR 1997 SC 568: 1996 (10) Suppl. SCR 321; Mr. 'X' v. Hospital 'Z', (1998) 8 SCC 296; Sharda v. Dharmpal (2003) 4 SCC 493: 2003 (3) SCR 106; People's Union for Civil Liberties (PUCL) & Anr. v. Union of India & Anr. AIR 2003 SC 2363: 2003 (2) SCR 1136; District Registrar and Collector, Hyderabad & Anr. v. Canara Bank & Ors. (2005) 1 SCC 496: 2004 (5) Suppl. SCR 833; Bhavesh Jayanti Lakhani v. State of Maharashtra & Ors. (2009) 9 SCC 551: 2009 (12) SCR 861; Smt. Se/vi & Ors. v. State of Kamataka AIR 2010 SC 1974: 2010 (5) SCR 381; Ram Jethmalani & Ors. v. Union of India & Ors. (2011) 8 SCC 1; Rabin Mukherjee&. Ors. v. State of West Bengal&. Ors. AIR 1985 Cal.

222; Burrabazar Fireworks Dealers Association v. Commissioner of Police, Calcutta AIR 1998 Cal 121; Church of God (Full Gospel) in India v. K. K. R. Majestic Colony Welfare Assn. &. Ors. AIR 2000 SC 2773: 2000(3) Suppl. SCR 15; Forum, Prevention of Environment and Sound Pollution v. Union of India &. Ors. AIR 2006 SC 348: 2005 (4) Suppl. SCR 966 and Prithipal Singh & Ors. v. State of Punjab & Anr. (2012) 1 SCC 10 - referred to. 2. Section 144 Cr. P. C. deals with immediate prevention and speedy remedy. Therefore, before invoking such a provision, the statutory authority must be satisfied regarding the existence of the circumstances showing the necessity of an immediate action. The sine qua non for an order under Section 144 Cr. P. C. is urgency requiring an immediate and speedy intervention by passing of an order. The ? order must set out the material facts of the situation. Such a provision can be used only in grave circumstances for maintenance of public peace.

The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave. [Para 30] [1147-B-D] 3. 1. In the instant case, it is evident from the order passed under Section 144 Cr. P. C. itself that the people at large, sleeping in tents, had not been informed about such promulgation and were not asked to leave the place. There had been a dispute regarding the service of the orders on the organizers only. Therefore, there was utter confusion and the gathering could not even understand what the ? real dispute was and had reason to believe that police was trying to evict Baba Ramdev forcibly. At no point of time, the assembly was declared to be unlawful. In such a fact-situation, the police administration is to be blamed for not implementing the order, by strict adherence to the procedural requirements.

People at large have a legitimate expectation that Executive Authority would ensure strict compliance to the procedural requirements and would certainly not act SECRETARY, UNION OF INDIA in derogation of applicable regulations. Thus, the present is a clear cut case of Human Rights violation. [Para 35] [1150-D-G] 3. 2. There was no gossip or discussion of something untrue that was going on. To the contrary, it was 8 admittedly an assembly of followers, under a peaceful banner of Yogic training, fast asleep. The assembly was at least, purportedly, a conglomeration of individuals gathered together, expressive of a determination to improve the material condition of the human race. The aim of the assembly was prima facie unobjectionable and was not to inflame passions. It was to ward off something harmful.

What was suspicious or conspiratory about the assembly, may require an investigation by the appropriate forum, but the implementation appears to have been done in an unlawful and derogatory manner that did violate the basic human rights of the crowd to have a sound sleep which is also a constitutional freedom, acknowledged under Article 21 of the Constitution of India. [Para 36] [1150-H; 1151-A-C] 3. 3. Such an assembly is necessarily illegal cannot be presumed, and even if it was, the individuals were all asleep who were taken by surprise altogether for a simultaneous implementation and action under Section 144 Cr. P. C. without being preceded by an announcement or even otherwise, giving no time in a reasonable way to the assembly to disperse from the Ramlila Ground.

To the contrary, the sleep of this huge crowd was immodestly and brutally outraged and it was dispersed by force making them flee hither and thither,which by such precipitate action, caused a mayhem that was reflected in the media. [Para 37] [1151-D-E] 3. 4. An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. A sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such.

The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society. Forewarning is given to the respondents to prevent any repetition of such hasty and unwarranted act affecting the safe living conditions of the citizens/persons in this country. [Paras 38, 39] [1151-F; 1152-B-D] 0 Case Law Reference In the judgment of Swatanter Kumar, J. 63 Led 1173 referred to Para 5, 7 (1961) 3 SCR 423 referred to Paras 8,47,204 1954 SCR 587 referred to Para 12 1978 (2) SCR 621 referred to Para 14 1979 (1) SCR 192 referred to Para 14 1989 (2) SCR 204 referred to Para 22 \ 1952 SCR 597 referred to Para 26 1950 SCR 759 referred to Para 27 2005 (4) Suppl. SCR 582 referred to Para 28 (1950) SCR 594 referred to Para 30 1966 SCR 709 referred to Para 30 IN RE: RAMLILA MAIDAN INCIDENT DT4/5. 06. 2011 v.

HOME 999 SECRETARY, UNION OF INDIA 1996 (3) Suppl. SCR 677 referred to Para 32 2004 (1) SCR 1038 referred to Para 41 1971 SCR 742 referred to Paras 38, 203 1973 (2) SCR 266 referred to Paras 39, 212 2004 (3) SCR 652 referred to Paras 41, 203 (1951) 340 U. S. 315 referred to Para 43 (1964) 4 SCR 733 referred to Para 69 2009 (6) SCR 439 referred to Paras 83, 216 1982 (1) SCR 1077 referred to Para 156 (1997) 1 sec 91 referred to Para 203 (1970) 3 sec 221 referred to Para 203 (2002) 3 sec 696 referred to Para 217 (1951) A. C. 601 referred to Para 227 2003 (4 ) Suppl. SCR 984 referred to Para 229 In the judgment of Dr. B. S. Chauhan, J. : 2011 (3) SCR 366 referred to Para 14 2011 (7) sec 547 referred to Para 14 1971 (3) SCR 9 referred to Para 15 1979 (2) SCR 641 referred to Para 15 1996 (10) Suppl. SCR 284 referred to Para 16 1981 (2) SCR 516 referred to Para 17 1964 SCR 332 referred to Para 19 1975 (3) SCR 946 referred to Para 19 1996 (10) Suppl.

SCR 321 referred to Para 19 (1948) 338 us 25 referred to Para 20 1981 (2) SCR 311 referred to Para 21 1991 (1) sec 57 referred to Para 21 1994 (4) Suppl. SCR 353 referred to Para 21 1996 (10) Suppl. SCR 321 referred to Para 21 (1998) 8 sec 296 referred to Para 21 2003 (3) SCR 106 referred to Para 21 2003 (2) SCR 1136 referred to Para 21 2004 (5) Suppl. SCR 833 referred to Para 21 2009 (12) SCR 861 referred to Para 21 2010 (5) SCR 381 referred to Para 21 (2011) a sec 1 referred to Para 22 AIR 1985 Cal. 222 referred to Para 23 AIR 1998 Cal 121 referred to Para 23 2000 (3) Suppl. SCR 15 referred to Para 23 2005 (4) Suppl. SCR 966 referred to Para 23 (2012) 1 sec 10 referred to Para 28 CRIMINAL ORIGINAL JURISDICTION : SUO MOTU WRIT PETITION (CRL. ) NO. 122 OF 2011. Under Article 32 of the Constitution of India. P. P. Malhotra, ASG, Dr, Rajeev Dhavan (Amicus Curiae), Ram Jethmalani, P. H. Parekh, Udita Singh, L. R.

Singh, Shubhranshu Pedhi, Anil Katiyar, Lata Krishnamurti, Balaji Subramanian, Manu Sharma, Karan Kalia, Pranav Diesh, IN RE: RAMLILAMAIDAN INCIDENT DT. 4/5. 06. 2011 v. HOME 1001 SECRETARY, UNION OF INDIA Sanjay Jain, Vikas Garg, B. K. Prasad, Siddhartha Dave, Shailender Sharma, S. N. Terdal, D. P. Mohanty, Subhasree Chatterjee, Anand Shankar Jha, Ekansh Misra, (for Parekh & Co. ) Kamini Jaiswal, Shomila Bakshi, Abhimanyu Shrestha, Kumud L. Das for the appearing parties. The Judgment of the Court was delivered by SWATANTER KUMAR, J. 1. At the very outset, I would prefer to examine the principles of law that can render assistance in weighing the merit or otherwise of the contentious disputations asserted before the Court by the parties in the present suo moto petition.

Besides restating the law governing Articles 19(1)(a) and 19(1)(b) of the Constitution of India and the parallel restrictions contemplated under Articles 19(2) and 19(3) respectively, I would also gauge the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973 (for short 'Cr. P. C. '). 2. It appears justified here to mention the First Amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the American Bill of Rights. This Amendment added new dimensions to this right to freedom and purportedly, without any limitations. The expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction.

It reads as under : "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. '' 3. The effect of use of these expressions, in particular, was that the freedom of speech of press was considered absolute and free from any restrictions whatsoever. Shortly thereafter, as result of widening of the power of judicial review, the US Supreme Court preferred to test each case on the touchstone of the rule of 'clear-and-present-danger'. However, application of this rule was unable to withstand the pace of development of law and, therefore, through its judicial pronouncements, the US Supreme Court applied the doctrine of 'balancing of interests'.

The cases relating to speech did not simply involve the rights of the offending speaker but typically they presented clash of several rights or a conflict between individual rights and necessary functions of the Government. Justice Frankfurter often applied the above-mentioned Balancing Formula and concluded that "while the court has emphasized the importance of 'free speech', it has recognized that free speech is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if free expression of 0 ideas is not found to be the overbalancing considerations. " 4. The 'balancing of interests' approach is basically derived from Roscoe Pound's theories of social engineering. Pound had insisted that his structure of public, social and individual interests are all, in fact, individual interests looked at from different points of view for the purpose of clarity.

Therefore, in order to make the system work properly, it is essential that when interests are balanced, all claims must be translated into the same level and carefully labelled. Thus, a social interest may not be balanced against individual interest, but only against another social interest. The author points out that throughout the heyday of the clear-and-present-danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. [Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966] 5. Even in the United States there is a recurring debate in modern First Amendment Jurisprudence as to whether First Amendment rights are 'absolute' in the sense that the IN RE: RAMLILA MAIDAN INCIDENT DT4/5. 06. 2011 v. HOME 1003 SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.

] Government may not abridge them at all or whether the First Amendment requires the 'balancing of competing interests' in the sense that free speech values and the Government's competing justification must be isolated and weighted in each case. Although the First Amendment to the American Constitution provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time. In the case of Schenck v. United States [63 Led 1173], the Court held : "The character of every act depends upon the circumstances in which it is done.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force .... the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. " [Constitution of India, (2nd Edn. ), Volume 1 by Dr. L. M. Singhvi] 6. In contradistinction to the above approach of the US Supreme Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19(1 )(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1 )(b). However, these rights are not free from any restrictions and are not absolute in their terms and application.

Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein. 7. In face of this constitutional mandate, the American doctrine adumbrated in Schenck's case (supra) cannot be imported and applied. Under our Constitution, this right is not an absolute right but is subject to the above-noticed restrictions. Thus, the position under our Constitution is different. 8. In 'Constitutional Law of India' by H. M. Seervai (Fourth Edn. ), Vol. 1, the author has noticed that the provisions of the two Constitutions as to freedom of speech and expression are essentially different.

The difference being accentuated by the provisions of the Indian Constitution for preventive detention which have no counterpart in the US Constitution. Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide. {Babula/ Parate v. State of Maharashtra [(1961) 3 SCR 423]}. 9. The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind. For instance, the right to freedom of speech and expression is not-violated by a law which requires that name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper. 10.

Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. IN RE: RAMLILA MAIDAN INCIDENT DT4/5. 06. 2011 v. HOME 1005 SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J. ] The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a "basic human right", "a natural right" and the like.

With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press. 11. In order to effectively consider the rival contentions raised and in the backdrop of the factual matrix, it will be of some concern for this Court to examine the constitutional scheme and the historical background of the relevant Articles relating to the right to freedom of speech and expression in India. The framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression.

Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble, The Spirit and Backbone of the Constitution of India, by Justice R. C. Lahot1). These valuable fundamental rights are subject to restrictions contemplated under Articles 19(2) and 19(3), respectively. Article 19(1) was subjected to just one amendment, by the Constitution (44th Amendment) Act, 1979, vide which Article 19(1)(f) was repealed. Since the Parliament felt the need of amending Article 19(2) of the Constitution, it was substituted by the Constitution (First Amendment) Act, 1951 with retrospective effect. Article 19(2) was subjected to another amendment and vide the Constitution (Sixteenth Amendment) Act, 1963, the expression "sovereignty and integrity of India" was added.

The pre-amendment Article had empowered the State to make laws imposing reasonable restrictions in exercise of the rights conferred under Article 19(1 )(a) in the interest of 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 of an offence. To introduce a more definite dimension with regard to the sovereignty and integrity of India, this Amendment was made. It provided the right spectrum in relation to which the State could enact a law to place reasonable restrictions upon the freedom of speech and expression. 12. This shows that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint.

Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder. {Ref. : State of West Bengal Vs. Subodh Gopal Bose [AIR 1954 SC 92]}. 13. I consider it appropriate to examine the term 'liberty', which is subject to reasonable restrictions, with reference to the other constitutional rights. Article 21 is the foundation of the constitutional scheme. It grants to every person the right to life and personal liberty. This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established by law for deprivation of rights conferred by this Article must be fair, just and reasonable. The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of IN RE: RAMLIU\ MAIDAN INCIDENT DT. 4/5. 06. 2011 v. HOME 1007 SECRETARY, UNION OF INOIA [SWATANTER KUMAR, J.

] unreasonableness, thereby vitiating the law which prescribed that procedure and, consequently, the action taken thereunder. 14. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards - first, the action must be 8 within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable. The concept of 'procedure established by law' changed its character after the judgment of this Court in the case of Maneka Gandhi v.

UOI [AIR 1978 SC 597), where this Court took the view as under : "The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. " This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court took the following view: "Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels. " 15.

What emerges from the above principles, which has also been followed in a catena of judgments of this Court, is that the law itself has to be reasonable and furthermore, the action under that law has to be in accordance with the law so established. Non-observance of either of this can vitiate the action, but if the former is invalid, the latter cannot withstand. 16. Article 13 is a protective provision and an index of the importance and preference that the framers of the Constitution gave to Part Ill. In terms of Article 13(1), the laws in force before the commencement of the Constitution, in so far as they were inconsistent with the provisions of that Part were, to the extent of such inconsistency, void. It also fettered the right of the State in making laws. The State is not to make any law which takes away or abridges the rights conferred by this Part and if such law is made then to the extent of conflict, it would be void.

In other words, except for the limitations stated in the Articles contained in Part Ill itself and Article 13(4) of the Constitution, this Article is the reservoir of the fundamental protections available to any person/citizen. 17. While these are the guaranteed fundamental rights, Article 38, under the Directive Principles of State Policy contained in Part IV of the Constitution, places a constitutional obligation upon the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice - social, economic and political shall inform all the institutions of the national life. Article 37 makes the Directive Principles of State Policy fundamental in governance of the country and provides that it shall be the duty of the State to apply these principles in making laws. 18.

With the development of law, even certain matters covered under this Part relating to Directive Principles have been uplifted to the status of fundamental rights, for instance, the right to education. Though this right forms part of the Directive Principles of State Policy, compulsory and primary education has been treated as a part of Article 21 of the Constitution of India by the courts, which consequently led to the enactment of the Right of Children to Free and Compulsory Education Act, 2010. 19. Article 51A deals with the fundamental duties of the citizens. It, inter alia, postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony IN RE: RAMLILAMAIDAN INCIDENTDT. 415. 06. 2011 v. HOME 1009 SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J. ] and the spirit of common brotherhood, to safeguard public property and to abjure violence. 20. Thus, a common thread runs through Parts Ill, IV and IVA of the Constitution of India.

One Part enumerates the fundamental rights, the second declares the fundamental 8 principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always be advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these parts. It is necessary to be clear about the meaning of the word "fundamental" as used in the expression "fundamental in the governance of the State" to describe the directive principles which have not legally been made enforceable. Thus, the word "fundamental" has been used in two different senses under our Constitution. The essential character of the fundamental rights is secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pretendo void.

The word "fundamental" in Article 37 also means basic or essential, but it is used in the normative sense of setting, before the State, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles has attained greater significance through judicial pronouncements. 21. As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult it is to imagine the existence of a right not coupled with a duty. The duty may be a direct or indirect consequence of a fair assertion of the right. Part Ill of the Constitution of India although confers rights, still duties and restrictions are inherent thereunder. These rights are basic in nature and are recognized and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation.

Each one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the Parliament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place on record appropriate material justifying the restriction and its reasonability. Reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts.

Such limitations, therefore, indicate two purposes; one that the freedom is not absolute and is subject to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. The legislature has to exercise these powers within the ambit of Article 19(2) of the Constitution. 22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citizen or a group of citizens may assert.

The State also has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise. In the case of S. Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], this Court noticed as under : "45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly IN RE: RAMLILAMAIDAN INCIDENT DT. 4/5. 06. 2011 v. HOME 1011 SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J. ] be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.

The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg". " 23. Where the Court applies the test of 'proximate and direct nexus with the expression', the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i. e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest. 24. Now, I would examine the various tests that have been applied over the period of time to examine the validity and/or reasonability of the restrictions imposed upon the rights.

Upon the Rights Enshrined in the Constitution 25. No person can be divested of his fundamental rights. · They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:- (a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up. (b) Each restriction must be reasonable. (c) A restriction must be related to the purpose mentioned in Article 19(2). 26. The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review.

The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will 0 always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V. G. Row [AIR 1952 SC 196] held:- "It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases. " 27.

For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the IN RE: RAMLILAMAIDAN INCIDENTDT. 415. 06. 2011 v. HOME 1013 SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J. ) time, amongst others, enter into the judicial verdict. [See: Chintamanrao & Anr. v. State of Madhya Pradesh (AIR 1951 SC 118)]. 28. The courts must bear a clear distinction in mind with regard to 'restriction' and 'prohibition'. They are expressions 8 which cannot be used inter-changeably as they have different connotations and consequences in law.

Wherever a 'prohibition' is imposed, besides satisfying all the tests of a reasonable 'restriction', it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be detennined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:- "75.

Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the e