Karnataka High Court
Divya Balagopal vs The State Of Karnataka on 17 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 881, 2020 (2) AKR 466
Bench: Chief Justice, Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION No.52742 OF 2019 (GM-RES)
BETWEEN:
DIVYA BALAGOPAL
D/O SHRI G. BALAGOPAL
AGED ABOUT 47 YEARS
NO.7, BEL AIR
74, BROOKEFIELDS ROAD
BENGALURU - 560 037. ...PETITIONER
(BY SRI RAMANAND MUNDKUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
DEPARTMENT OF HOME
ROOM NO. 219
II FLOOR, VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE ADDITIONAL DIRECTOR GENERAL OF POLICE
(GRIEVANCES AND HUMAN RIGHTS)
POLICE HEAD QUARTERS
DG AND IGP OFFICE
BENGALURU - 560 001.
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3. THE SUPERINTENDENT OF POLICE
MILLERS ROAD
VASANTH NAGAR
BENGALURU - 560 052.
4. THE DEPUTY SUPERINTENDENT OF POLICE.
5. THE DEPARTMENT OF PUBLIC INSTRUCTION
GOVERNMENT OF KARNATAKA.
6. THE INSPECTOR OF POLICE (L AND O)
YELLAHANKA POLICE STATION
YELLAHANKA NEW TOWN
BENGALURU - 560 064. ...RESPONDENTS
(BY SRI V.G. BHANUPRAKASH, AGA FOR RESPONDENTS)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A)
ISSUE A WRIT OF CERTIORARI OR MANDAMUS OR ANY
OTHER WRIT, ORDER, RULE OR DIRECTION I) QUASHING
CLAUSE 3 OF THE LICENSING AND CONTROLLING OF
ASSEMBLIES AND PROCESSIONS (BENGALURU CITY)
ORDER, 2008, AS UNCONSTITUTIONAL, AND AS ULTRA
VIRES THE PROVISIONS OF THE KARNATAKA POLICE ACT,
1964, AND WITHOUT AUTHORITY OR FORCE OF LAW AND
ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
We have permitted the learned counsel appearing for the petitioner to proceed on the footing that the amendment has been granted in terms of the prayer made in I.A. No.2 of 2020. In support of the existing prayers, -3- additional averments are sought to be added by way of an amendment application.
2. The first prayer in the petition is for quashing clause 3 of the Licensing and Controlling of Assemblies and Processions (Bengaluru City) Order, 2008, (for short 'the said Order') on the ground that it is unconstitutional, and ultra vires the provisions of the Karnataka Police Act, 1964, (for short 'the said Act'). The second prayer is for quashing the document published on the official website of the Karnataka Police, captioned as "Permission for Peaceful Assembly and Procession" which is from page numbers 36, 37 onwards of the petition. The question is whether the said Order imposes unreasonable restrictions on the fundamental rights conferred by sub-clauses (a) and (b) of clause 1 of Article 19 of the Constitution of India.
3. The first submission of the learned counsel appearing for the petitioner is that clause 3 of the said Order is unconstitutional as it is a prior restraint on processions or public assemblies. His submission is that prior blanket restraint on the exercise of the rights guaranteed under clauses (a) and (b) Article 19(1) of -4- Constitution of India cannot be imposed and the provisions for licencing introduced by clause 3 of the said Order is prior restraint which is blanket in nature. He submits that penal action is contemplated for non-compliance with the requirement of obtaining license amounting to a disproportionate interference with the fundamental freedoms guaranteed by the Constitution of India.
4. He relies upon the concurring judgment of Mathew J. (as he then was) in the case of HIMAT LAL K. SHAH & ORS VS. COMMISSIONER OF POLICE AHMEDABAD & ORS.1 He invited our attention to clause (o) of sub- section (1) of Section 31 of the said Act which per se contemplates only regulation of the assemblies and processions. He submits that the said Order is issued in exercise of the power under clause (o) of sub-section (1) of Section 31 of the said Act, though the said clause does not permit prohibition of assemblies or processions under the guise of regulating processions and assemblies. The said Order which provides for prohibition of assemblies is contrary to clause (o) of sub-Section (1) of Section 31 of 1 (1973) 1 SCC 227 -5- the said Act. Paragraph 52 of the decision in the case of HIMAT LAL (supra) is relevant which reads thus:
"52. What the sub-section provides is making of rules for 'regulating' the conduct and behaviour, or action of persons constituting assemblies. The sub- section presupposes an assembly and authorises the making of rules for 'regulating' the conduct, behaviour or action of the persons who are members thereof. Rule 7 impliedly given power to the commissioner to refuse permission to hold a public meeting and, when a meeting is prohibited, there is no question of regulating the conduct, behaviour or action of persons constituting assembly, as, ex-hypothesi, no assembly has been constituted. The sub-section does not authorise framing of rules to regulate the conduct, behaviour or action or persons before an assembly is constituted. Before an assembly is constituted, every member of the public is a potential member of it, because every such member, if he so choose, might become a member of the assembly. Does, then, the sub-section authorise the making of rules to regulate the conduct, behaviour or action of every such member, before he becomes a member of the assembly? I think not."
5. He submitted that the definition of 'Procession' incorporated in the said Order and in particular in sub- clause (f) of clause (2) of the said Order which is so wide that even if more than twenty five school children are crossing a public street, it will amount to a 'procession' requiring a licence and if a licence is not obtained, penal action will follow. He would, therefore, submit that clause 3 -6- of the said Order deserves to be struck out as it is not only unconstitutional, but is also violative of the fundamental rights, and is ultra vires under clause (o) of sub-section (1) of Section 31 of the said Act.
6. We have considered the submissions. Clause
(o) of sub-section (1) of Section 31 of the said Act reads thus:
"(o) regulating the conduct of and behaviour or action of persons, constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes by which, the order in which, the order in which and the times at which the same may pass;"
In the context of clause (o), clause 3 of the said Order will have to be considered which reads thus:
"3. LICENCES TO BE OBTAINED FOR PROCESSIONS OR PUBLIC ASSEMBLIESE: (1) No processions or assemblies shall be allowed in Bangalore City without obtaining licence under this order.
(2) Application in Form No.1 in respect of every procession, if it is to be conducted on a route within the jurisdiction of one zone only shall be made to the Dy.
Commissioner of Police of the concerned zone. If it is to be conducted on a route passing through more than one zone, the application shall be made to the Addl.Commissioner of Police, Law and Order, Bangalore City. The application shall be accompanied by a demand draft of Rs.100(Rupees hundred only) payable in favour of the Commissioner of Police, Bangalore City. (3) In respect of the assembly, the application in form No.II accompanied by a demand draft of Rs.100/- (Rupees Hundred only) payable in favour of the Commissioner of -7- Police, Bangalore City be made to Dy.Commissioner of Police of the concerned zone where the assembly is proposed to be held.
(4) Every application for procession or assembly is proposed to be held. Provided in exceptional cases recorded in writing, the Licencing Authority may entertain an application with in a short notice."
7. All that clause (1) of clause 3 provides is that no processions or assemblies shall be allowed in Bengaluru City without obtaining a licence under this Order. It is a provision which provides for obtaining a licence which is essential and necessary for regulating the activities of the processions or assemblies. The term 'Assembly' is defined in sub-clause (c) of clause 2 of the said Order which reads thus:
"c. 'Assembly' means a congregation of more than 250 persons assembling at the same place with the intention of conducting a meeting, protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access: but does not include the concerts organized for public amusement and indoor meetings, whether they are organized in a public place or in private place."
'Procession' is defined in sub-clause (f) of clause 2 of the said Order which reads thus:
"f. 'Procession' means, (i) a congregation of the people who are accompanied by music or otherwise consisting of more than 25 persons passing in a group on any public road in Bangalore City, with a common object; or ii. includes processions organized by political parties, religious groups, social organizations, route -8- marches, but does not include marriage and funeral processions."
8. Thus, clause (c) quoted above provides that 'Assembly' means a congregation of more than 250 persons assembling at the same place with an intention of conducting a meeting, protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access. Therefore, merely because 250 people gather at the same place, per se such an assembly will not require a licence under sub-clause (1) of clause 3 of the said order. The Assembly of more than 250 persons has to be for the intension set out in clause
(c). As far as 'procession' is concerned, merely because there are 25 persons passing in a group, it does not automatically become a procession. For example, if at a traffic signal more than 25 persons with the common object of crossing a street start proceeding to cross the public street by using the Zebra crossing, it will not become a 'procession' which requires a licence to be obtained under clause 3 of the said Order. At a Zebra crossing, when green signal appears for the pedestrians, if more than 25 people start to crossing the street by using Zebra crossing, -9- that does not amount to congregation of the people consisting of more than 25 persons, to which the definition of 'procession' is attracted. Similarly if more than 25 school children together cross a public street for boarding a school bus which is parked on the other side of the street, it will not become a 'procession.'
9. We have perused paragraph 52 of the decision in the case of Himat Lal K Shah (supra). We do not think that clause 3 of the said Order is contrary of what is held at paragraph 52 of the said decision. The activity of the procession and public assembly has to be regulated. If more than 250 people assemble to hear a political, social or religious speech right at the centre of a public street, on a square or at a place opposite to a hospital, a school, an educational institution, there is nothing wrong if such activity is regulated and that is how sub-clause (o) of sub section (1) of Section 31 authorizes the Commissioner and District Magistrate to make an order for the purposes specified in clauses (a) to (z) of sub-section (1) of Section 31 and the said Order has been made by the District Magistrate and the Commissioner.
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10. If an application is made under sub-clause (1) of clause 3 of the said Order, the manner in which the same is to be proceeded is laid down in the said Order. The entire procedure is provided in the said Order. The factors which are to be considered by the Licencing Authority are also enlisted in clause 7. Merely because under Clause 8, there a power to refuse licence, it cannot be said that the said Order is not regulatory in nature. As stated earlier, if such Order is absent, there will be an 'assembly' of more than 250 persons at the middle of a busy public street or in and around the educational institutions, hospitals, Courts etc. The power to regulate will also include the power to prevent such assemblies or processions which will cause inconvenience to the members of the public. In fact, against the order of refusal to grant permission, an appeal is also provided under the said Order. The appeal is required to be decided within 24 hours from the time of receipt of the same.
11. Therefore, we fail to see how the said Order, in particular clause 3 of the said Order is unconstitutional or ultra vires the provisions of the said Act. It seeks to impose a reasonable restriction on the rights conferred by sub- clause (a) and (b) of clause (1) of Articles 19 of the
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Constitution of India which is permissible in view of clauses (2) and (3) of Articles 19. By making a law, reasonable restrictions can be imposed on the exercise of rights under sub-clauses (a) and (b) of clause (1) of Article 19 of the Constitution in the interests of public Order.
12. The official website of Karnataka Police gives information to the members of the public. It also provides in what manner the applications for conducting of processions have to be made. Therefore, there is nothing wrong in the material printed on the official website of the Police Department. It is not shown that what is published is inconsistent with the said Order or any provision thereof.
13. Therefore, the first two prayers which are substantive prayers cannot be granted.
14. Consequent to rejection of the first two prayers, we make it clear that no other relief can be granted in this writ petition. Accordingly, the writ petition is rejected.
15. The memo of retirement by the learned Senior counsel Sri C.K. Nanda Kumar is allowed and he is permitted to retire.
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16. Explanation of the Registry is accepted. No further action is required to be taken.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE HR