Bombay High Court
Bhim Army(Bharat Ekta Mission, ... vs State Of Mah. Thr. Principal Secretary ... on 21 February, 2020
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.174 OF 2020
1. Bhim Army (Bharat Ekta Mission, Nagpur),
a Social Organisation having Office at
Nirmal Nagri, Building No.A2-1/3A,
Umred Road, Nagpur-440 009,
through its District President,
Prafulla M. Shende.
2. Prafulla s/o. Manohar Shende,
Aged about 44 years,
Occupation : Electrical Contractor,
R/o. Plot No.260, Kukde Layout,
Rameshwari Road, Nagpur-440 027. : PETITIONERS
...VERSUS...
1. The State of Maharashtra,
through Principal Secretary,
Home Department, Mantralaya,
Mumbai-32.
2. The Commissioner of Police,
Nagpur.
3. The Deputy Commissioner of Police,
(Special Branch), Nagpur.
4. The Senior Police Inspector,
Police Station Kotwali,
Nagpur City, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri Firdos Mirza, Advocate for Petitioners.
Ms. K.S. Joshi, Addl. Public Prosecutor for Respondents.
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Coram : Sunil B. Shukre And
Madhav J. Jamdar, JJ.
Date : 21st February, 2020.
ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)
1. Heard. Rule. Heard finally by consent forthwith.
2. Petitioner No.1 claims itself to be a social organization working for assertion of fundamental and other rights of citizens of India through lawful means and further claims that it is committed to following the constitutional principles of Ambedkarian thoughts. It also declares itself to be a non-political organization. Petitioner No.2, an Indian Citizen, is a President of Nagpur District Unit of the petitioner No.1 and petitioner No.2 in particular has stated that he has no criminal antecedents.
3. Petitioners desire to hold a workers meet at a ground known as Reshimbagh ground on 22.2.2020 from 12.00 p.m. to 8.00 p.m. This ground belongs to Nagpur Improvement Trust, but being in possession of CP and Berar Education Society, Nagpur, it is under the control of the Society for the purpose of granting permission or otherwise to hold public meeting or social gathering. Petitioners, therefore, approached the Society seeking its permission to use the ground for holding a public meeting of workers of petitioner No.1 organization. The Society granted permission to petitioner No.1 to hold such meeting on 17.2.2020, subject to payment of user and allied charges, which were paid by the petitioners. The petitioners also ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 3/29 approached the Nagpur Improvement Trust as well as concerned Traffic Police having jurisdiction over the area for grant of no objection and both the Nagpur Improvement Trust vide its letter dated 13.2.2020 and Senior Police Inspector (Traffic Zone), Sakkardara, Nagpur city vide his letter dated 14.2.2020 respectfully gave no objection to hold the meeting, subject to various conditions mentioned in these two letters. According to the petitioner, as it was also the condition of no objection granted by the Traffic Police that permission for installing public address system be obtained from the concerned Police Station as well as to take abundant precaution, the petitioners filed an application before the Senior Police Inspector of Police Station Sakkardara and DCP (Special Branch), Nagpur for grant of permission to hold the workers meet at the said ground. The application was filed on 12.2.2020. It was, however, rejected by the concerned Senior Police Inspector, who is respondent No.4 here as per the communication dated 17.2.2020 on the ground that the workers meet, if held, may lead to disturbed law and order situation. This communication was followed by a notice dated 17.2.2020 to petitioner No.2 under Section 149 of the Code of Criminal Procedure directing him to not indulge in any sloganeering, road blockage, public demonstration etc. on the ground that the permission to hold workers meet had been rejected and that if the direction was violated in any manner, strict legal action would be taken against him and the organizers. Being aggrieved by the same, petitioners are before this Court in this criminal ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 4/29 writ petition.
4. A detailed reply to the petition has been filed by the respondent No.4 which appears to be also the reply of the remaining respondents. It has been stated in the reply that the petitioner No.2 has not approached this Court with clean hands as two criminal cases have been registered against him vide Crime No.675/2018 at Police Station Nandanvan, Nagpur and Crime No.355/2019 registered at Police Station Sadar, Nagpur city, Nagpur. It has been further stated that the Crime No.675/2018 has been registered against the petitioner No.2 and others for such offences as are punishable under Sections 143, 506 and 109 read with Section 149 of the Indian Penal code and Crime No.355/2019 has been registered against the petitioner No.2 and others for such offences as are punishable under Section 188 of the Indian Penal Code and Section 135 of the Maharashtra Police Act, 1951. It is further stated in the reply that the founder of petitioner No.1 organization, Chandrashekhar Azad, has criminal antecedents as offences punishable under Sections 505(1)(c), 505(2) and Section 120(B) of the Indian Penal Code and Section 66(F) of the Information Technology Act have been registered against him vide Crime No.243/2017 at Police Station Sadar Bazar, Saharanpur. The reply further states that these criminal antecedents have been suppressed by the petitioners from this Court.
5. The reply of respondent No.4 points out that even though the purpose of meeting is not stated in the application dated 12.2.2020, Police ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 5/29 have received the information that the intention of the organizers is to misuse the workers meet by converting it into a show of open demonstrations and protests against the Citizenship Amendment Act (CAA) and thus spread hatred amongst various communities and incite violence. For this submission, respondent No.4 places his reliance upon one pamphlet (Page 59), which indicates the real purpose of the workers meet and it is to publicly protest CAA and such issues as national register for citizens etc. The reply also states that the Additional Police Commissioner (Crime) Nagpur has issued a notification dated 7.2.2020 in exercise of his power vested in him under Section 37(1)(3) of the Maharashtra Police Act to regulate such meeting and protests. Reply states that the copy of this notification is annexed with it and marked as document No.8. However, we find that the copy of this notification has not been filed along with the reply and document No.8, contrary to what is stated in the reply, is a copy of the first information report dated 21.12.2019 filed by one Rakesh Kumar Sharma alleging that main leader of Bhim Army, Chandrashekhar Azad alias Ravan, delivered an inflammatory speech during Friday prayer held at Jama Masjid because of which, offences punishable under Sections 147, 148, 436, 427, 323, 186, 353, 332 and 120(B) read with Section 34 of the Indian Penal Code were registered against various persons, although the document does not disclose any particular names of the accused persons. So, taking any cognizance of said notification is not possible.
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6. Thus, it is the submission of the respondents that considering the real intention of the petitioners behind holding of workers meet and the tendency of the Chandrashekhar Azad, the founder of the petitioner No.1 to misuse the fundamental freedoms guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution of India the apprehension expressed by the Police is reasonable and it would, therefore, amount to imposing of reasonable restrictions within the meaning of the said Articles. It is also the contention of the respondents that in any case there is no fundamental freedom available to any citizen of India to hold demonstration or protest show at any particular place and what has been done by the impugned communication is only denial of permission to hold such protest or demonstration display at Reshimbagh ground only. It has been emphasized by the respondents that the impugned communication also urges the petitioners to hold the workers meet at some other place thereby indicating that the Police would not object to holding of such a meeting if the venue is changed.
7. Shri Firdos Mirza, learned counsel for the petitioners submits that it was a mistake on the part of the petitioner No.2 to have not mentioned anything about the criminal antecedents and to have made a statement that there were no criminal antecedents on his part but that was due to the fact that the petitioner No.2 himself was not aware of registration of these crimes against him and also owing to the fact that he was neither intimated of the ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 7/29 same nor was arrested in those crimes by Police. He also submits that in any case, this could not be a ground to drive the petitioners out of this Court when the petitioners have a serious grievance of violation of their fundamental rights. When we questioned the learned Additional Public Prosecutor about giving of intimation about arrest of petitioner No.2 in these two crimes, no definite information could be provided by the learned Additional Public Prosecutor and so, it is not known if the explanation given by the petitioner No.2 for his making a statement before this Court about his nil criminal antecedents is correct or not. If the petitioner No.2 was intimated about or had knowledge of the crimes registered against him, certainly petitioner No.2 would be guilty of suppression of material fact from this Court and, therefore, the petitioner No.2 would not deserve to be heard by this Court. In such a case same principle would apply even to petitioner No.1 as the petitioner No.1 could be said to be supporting the assertion deliberately made by petitioner No.2. But, if it is seen that the petitioner No.2 had no knowledge about the registration of those crimes against him, both the petitioners would deserve a hearing from this court. Here is a case in which neither the explanation given by the petitioners can be rejected nor can it be accepted, there being no specific reply given by the respondents to the assertions of the petitioners and, therefore, we would only go by the general principle that where a grievance is raised about violation of a right, the grievance would require hearing and redressal by this Court in accordance ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 8/29 with law and as such we would proceed to deal with the grievance raised in this petition on its own merit.
Shri Mirza, learned counsel for the petitioners submits that the right to assemble peaceably and without arms and right to deliver speech, subject to reasonable restrictions, are fundamental rights enshrined in Article 19(1)(b) and Article 19(1)(a) and, therefore, cannot be taken away on some ground which could not be seen to be reasonable in the light of the limitations imposed in these Articles. He further submits that the permission has been refused on the general ground of likelihood of creation of disturbed law and order situation without there being in existence any material to support it. He further submits that whatever has been stated in the reply of respondent No.4 finds no mention even generally in the impugned communication dated 17.2.2020. According to him, it is settled law that validity of an order passed by a statutory functionary has to be judged by the reasons mentioned in it and the order cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. He relies upon the law laid down by the Hon'ble Apex Court in the case of Mohinder Singh Gill and another vs. The Chief Election commissioner, New Delhi and others, reported in AIR 1978 SC 851 in this regard. Shri Mirza further submits that the petitioners are only holding a workers meet and have no intention to make any public protest or demonstration and, therefore, the petitioners cannot be deprived of their right to hold a workers meet at Reshimbagh ground by ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 9/29 imposing any unreasonable restrictions. He submits that there can be no denying the fact that there is no fundamental right to hold a protest or demonstration show at a particular public place but what has been sought here by the petitioners is to hold a public meet i.e. workers meet in a peaceful manner at Reshimbagh ground and as such if the petitioners are to be driven away from this venue, the petitioners would have a right to know the reasons for the same. He submits that no reasons, however, are stated in the impugned communication except for the vague ground of possible "law and order" situation and, therefore, the impugned communication amounts to unreasonably and arbitrarily taking away of the right of the petitioners to hold a workers meet at Reshimbagh ground. For this submission learned counsel for the petitioners relies upon the cases of Ramlila Maidan Incident, In Re, reported in (2012) 5 SCC 1 and Mazdoor Kisan Shakti Sangathan vs. Union of India and another, reported in (2018) 17 SCC 324.
8. Ms. K.S. Joshi, learned Additional Public Prosecutor submits that there is no fundamental right available to any one to hold protests or demonstrations at any particular place and by the impugned communication what has been denied is the permission to hold workers meet at Reshimbagh ground and not at other places, if proposed by the petitioners. She further submits that the impugned communication states reasons as it refers to creation of a disturbed law and order situation. She further submits that impugned communication is an example of executive function and, therefore, ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 10/29 it is not necessary for the authority to give detailed reasons to support it's decision and it is enough if the ground stated in it is supported by some material available on record. According to her, before issuing the impugned communication, respondent No.4 had collected relevant information and it was only on the basis of that information that he arrived at the conclusion that possibility of creation of law and order situation was not ruled out if the workers meet was allowed to be held at Reshimbagh ground and thus he refused the permission, and rightly so. She points out that the respondent No.4 had found from the information collected by him that the workers meet was actually going to be used as an excuse for holding public demonstrations and protests against CAA Act etc. and if that were to happen there would be a serious law and order issue, going by the past record of the petitioners, in particular of Chandrashekhar Azad alias Ravan, the founder of petitioner No.1 organization. She relies upon the allegations made against Chandrashekhar Azad in Crime No.250/2019, registered against him at Police Station Dariyaganj, Delhi and the pamphlet released by the petitioners regarding workers meet scheduled to be held on 22nd February, 2020 at Reshimbagh ground, Nagpur wherein, the purpose of the meet has been stated to be a public condemnation of and protests against CAA, NRC etc., they being against the Constitution of India and nation. She submits that Reshimbagh is a sensitive area as head-quarter of RSS is situated closely to it and that Hedgewar Smarak Bhavan is also located nearby. According to her, ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 11/29 considering the past record of the founder of petitioner No.1 organization, close situation of an organization whose ideology is opposed by an organization like the petitioner No.1 or at least its founder, possibility of provocative and violent demonstrations being held during the workers meet is not ruled out. She submits that such material indeed existed on record and it was only on the basis of this material that the impugned communication has been issued. Thus, learned Additional Public Prosecutor would support the impugned communication. She places reliance, apart from the case of Mazdoor Kisan Shakti Sangathan (supra) relied upon by the petitioners, upon cases of Dr. D.C. Saxena vs. Hon'ble the Chief Justice of India, reported in (1996)5 SCC 216 and Government of Tamil Nadu vs. P. Ayyakannu, reported in 2018(4) LW 558, decided by the Division Bench of Madras High Court.
9. In this case, the avowed purpose for which permission has been sought by the petitioners to use Reshimbagh ground is of holding of a workers meet. But, what is the purpose of the workers meet and what is going to be discussed therein has, however, been not disclosed by the petitioners. According to the respondents, there lurks a latent purpose beneath the frontage put up by the petitioners. The hidden agenda, the respondents maintain, needs to be looked into so as to determine appropriately the reasonableness of the restrictions imposed by the respondents. The petitioners submit that the respondents here have acted only on surmises and suspicion which cannot form any reasonable basis to deny the permission. ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 12/29 They also submit that willingness to grant allowance for another place would not make the denial for Reshimbagh ground reasonable. These rival arguments can be better appreciated, if we first have a broader view of the law governing the field.
10. Article 19(1)(a) and Article 19(1)(b) confer upon all citizens right of freedom of speech and expression and right to assemble peaceably and without arms. These freedoms are not absolute and are subject to reasonable restrictions. The restrictions could be imposed, so far as freedom of speech and expression is concerned, in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency, morality or in relation to contempt of Court, defamation and incitement to an offence. The restrictions to which fundamental right to assemble is subject are those which are in the interest of sovereignty and integrity of India and public order. In Ramlila Maidan Incident (supra), Hon'ble Supreme Court held that restriction must be reasonable and it must stand the scrutiny of judicial review. It further held that as rights, restrictions and duties co-exist, a balance must be struck in between them. We can get more precise idea of what reasonableness means in the context of restrictions on fundamental freedoms from the observations made in paras 35,36 and 39. They are reproduced thus :
35. The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 13/29 must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.
36. As already noticed, rights restrictions and duties coexist. 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 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". The security of the State is the core subject and public order as well as law and order follow the same.
39. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51-A are of relevant consideration. Article 51-A requires an individual to abide by the law, to safeguard public property and to abjure violence. It also requires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. Part IV of the Constitution relates to the directive principles of the State policy. Article 38 was introduced in the Constitution as an obligation upon the State to maintain social order for promotion of welfare of the people. By the Constitution (Forty-second Amendment) Act, 1976, Article 51-A was added to comprehensively state the fundamental duties of the citizens to complement the obligations of the State.
Thus, all these duties are of constitutional significance." In the same judgment of Ramlilal Maidam (supra), the Hon'ble Supreme Court observed that no person can be divested of his fundamental ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 14/29 rights and all that can be done by the State by exercise of its legislative power is the regulation of his right by imposing reasonable restrictions on it. Hon'ble Supreme Court laid down following test comprising three components to ascertain reasonableness of restrictions placed upon the fundamental freedoms. They are as follows:
"(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)."
11. In the case of Dr. D.C. Saxena vs. Hon'ble the Chief Justice of India (supra) explaining the rationale behind the exercise of balancing of the competing interests, Hon'ble Apex Court observed that while Society accepts free speech and expression, it also puts limits on such right and, therefore, interest of the people involved in the act of expression must be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction a publication may evoke, the purpose of the speech and the place and the form in which a citizen exercises his such freedom. Elaborating further, Hon'ble Apex Court said that each is entitled to dignity of person and of reputation and nobody has a right to belittle others' right to dignity or reputation and, therefore, freedom of ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 15/29 speech and expression is allowed only upto a point where it cannot be seen as malicious or libellous. Such defining of contours of right of free speech and expression by the Hon'ble Supreme Court is found in paragraph 31 of the said Judgment which reads as follows :
31. If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority.
Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others' right to person or reputation. Therefore, freedom of speech and expression is foster and ensure orderly and peaceful public discussion or public good should result from free speech in the market-place. If such speech or expression was untrue and so reckless as to its truth, the speaker, or the author does not get protection of the constitutional right. "
12. In the case of Mazdoor Kisan Shakti Sangathan (supra), the Hon'ble Apex Court reiterated the test of larger public interest to strike the balance between two competing rights and called upon the Courts to judge the reasonableness of restrictions by examining as to where would lie the larger public interest and traverse the path which leads to the larger public ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 16/29 interests. It held that wherever an individual's fundamental right comes in conflict with fundamental right of others, the Court must uphold that right which is consistent with larger public interest. Hon'ble Supreme Court referred to it's judgment in the case of Asha Ranjan Vs. State of Bihar and others, reported in (2017)4 SCC 397 and made insightful observations in paragraphs 58 and 60 thus :-
58. In the aforesaid context, it would be pertinent to point out that there may be situations where conflict may arise between two fundamental rights. Situation can be conflict on inter fundamental rights, intra fundamental rights and, in certain peculiar circumstances, in respect of some person one fundamental right enjoyed by him may come in conflict with the other fundamental right guaranteed to him. In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail.
60. In Asha Ranjan v. State of Bihar and Others 12, this test of larger public interest to balance two rights has been explained in the following manner:
"57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the "greater community interest" or "interest of the collective or social order" would be the principle to recognise and accept the right of one which has to be protected.
13. So, it is clear to us as to by which parameters the reasonableness of restrictions placed on fundamental freedoms is to be judged. Now, let us see what the law is on the question of expressing or asserting fundamental ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 17/29 freedoms at one particular place.
14. In Anita Thakur & ors v. Government of Jammu And Kashmir & ors reported in (2016) 15 SCC 525, Hon'ble Apex Court acknowledged that right to peaceful protest was a fundamental right under Article 19 (1) (b) and (c) of the Constitution of India which is subject to reasonable restrictions.
It held that while exercising powers under law, authorities need to act within limits of law and cannot indulge in excesses. It has been laid down that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people and such a right can be traced to the fundamental freedoms guaranteed under Articles 19 (1) (a), 19 (1) (b) and 19 (1) (c) of the Constitution of India subject to imposition of reasonable restrictions. Discussing various provisions of the Indian Penal Code and the Code of Criminal Procedure, Hon'ble Apex Court held that those provisions are in the form of statutory provisions giving powers to the State to ensure that such public assemblies, protests, dharnas or marches are peaceful and they do not become "unlawful", but at the same time, it has cautioned the State authorities against indulging in excesses.
15. An emphatic proposition of law regarding fundamental right to hold a public meeting at a particular place, however, came much earlier in the case of Railway Board, New Delhi & anr v. Niranjan Singh reported in AIR 1969 SC 966.
15. In Railway Board, New Delhi (supra), Hon'ble Apex Court held ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 18/29 that there is no fundamental right for any one to hold a meeting in government premises and the mere fact that those who worked in public office can go there would not confer any right upon them of holding a meeting in that office even if it be the most convenient place to do so, unless there is such right conferred under law or by usage. The Hon'ble Apex Court found that the freedom of speech or the freedom to assemble or to form association does not confer any right to exercise any of these freedoms at whatever place a person chooses to do so and that the exercise of the freedom would come to an end as soon as the right of someone else to hold his properties is intervened. This limitation, has been found by the Hon'ble Apex Court as inhering in fundamental freedoms guaranteed under Article 19 and, therefore, it need not be judged by the tests prescribed by sub-clause (2) and (3) of Article 19. Paragraph 13 is relevant in this regard and, therefore, it is reproduced as below :
13. It is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form-
associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged by the tests prescribed by sub Articles (2) and (3) of Article 19. In other words the contents of the freedoms guaranteed under Clauses (a), (b) and (c), the only freedoms with which we are concerned in this appeal, do ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 19/29 not include the right to exercise them in the properties belonging to others. If Mr. Garg is right in his contentions then a citizen of this country in the exercise of his right under clauses (d) and (e) of Article 19(1) could move about freely in a public-office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights."
16. A Division Bench of the Madras High Court, in the case of Government of Tamil Nadu vs. P. Ayyakannu, ( supra), following the above referred principles, did not permit the respondent therein to conduct fasting struggle at Marina beach to espouse cause of agriculturists in Tamil Nadu.
17. From the above discussion, the propositions of law that emerge are that though fundamental freedoms guaranteed under Article 19 cannot be denied to any citizen, no citizen can be permitted to exercise the freedoms in absolute and unbridled manner and that these freedoms are subject to reasonable restrictions. The reasonableness of restrictions has to be judged in the context of the restrictions mentioned under Articles 19 (2) and 19 (3) of the Constitution of India and that there is no fundamental right to hold a protest meet or hold assembly at a particular place, unless right to hold such a meet or assembly at a particular place is conferred under any particular law or by long usage. These freedoms have been seen as pillars of democracy making functioning of a democratic Government transparent, vibrant and effective. In fact, right to protest is now recognized as a fundamental right and it includes right to dissent. It is crucial to a democracy and it makes a democracy flourish. This right has been viewed as virtually the life force of ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 20/29 a democracy. A democracy gains and gathers in it's strength by enabling direct participation to it's citizenery in public affairs and fundamental freedoms make it possible for the individual to organize and express resentment, grievances, point out flaws in governance and demand accountability from the State authorities as well as powerful entities. This right to protest, in particular, works wonders in a democratic nation like India, which is home to not only citizens having diverse religious and socio- cultural background, but also those who are marginalized and very poor.
18. At this juncture, we cannot but resist from referring to the reflections of Hon'ble Dr. Shri Justice Dhananjay Chandrachud on right to dissent in a democracy, which appeared in Time of India, newspaper dated 21.2.2020, under the caption "What binds India together : Labelling dissent as anti-national strikes at the heart of constitutional values". His Lordship said thus :-
"The destruction of spaces for questions and dissent destroys the basis of all growth - political, economic, cultural and social. In this sense, dissent is the safety valve of democracy. The silencing of dissent and the generation of fear in the minds of people go beyond the violation of personal liberty and a commitment to constitutional values - it strikes at the heart of a dialogue-based democratic society which accords to every individual equal respect and consideration."
Such being the significance of fundamental freedom of speech and expression, authorities while placing restrictions on them must keep themselves within the limits of law discussed earlier. ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 21/29
19. These principles would serve as beacon light for us to achieve the goal of balancing the competing interests of different sections of the citizenry in our attempt to examine the validity of the communication impugned here.
20. The impugned communication is of the date of 17.2.2020. It rejects the application dated 13.1.2020 of the petitioner seeking permission of Police Station Kotwali, Nagpur city to organize and hold workers meet of the petitioner No.1 during the time from 12.00 noon to 8.00 p.m. at Reshambagh ground. The impugned communication is entirely in Marathi and its translated English version has not been filed on record by the petitioner. It is, therefore, reproduced in Marathi as under :
iksyhl LVs'ku dksrokyh ukxiwj 'kgj fn-17-02-2020&44 fo"k; % 'kfuokj fn- 22-02-2020 yk fHke vkehZ dk;ZdrkZ esGkok dfjrk jsf'keckx eSnku ;sFks nq- 12-00 rs lk;a 20-00 i;Zar dk;Zdzekph ijokuxh feG.ksckcr-
lanHkZ % vkiys fn- 13-01-2020 ps i=k vUo;s-
mijksDr lanHkkZafdr fo"k;kUo;s lknj vkgs dh vki.k vkiys fn-13-01-2020 ps i=k vUo;s 'kfuokj fn- 22-02-2020 yk fHke vkehZ dk;ZdrkZ esGkok dfjrk jsf'keckx eSnku ;sFks nq- 12-00 rs lk;a 20-00 i;Zar dk;Zdzekph ijokuxh feG.ksckcr vtZ lknj dsyk vkgs ;kckcr ekfgrh dk<yh vlrk dk;Zdzekps fBdk.kh dk;Zdzekps njE;ku dk;nk o lqO;oLFksps iz'u gks.;kph 'kD;rk ukdkjrk ;sr ukgh-
djhrk mijksDr dkj.kkus vki.k vkiY;k vtZ vUo;s dsysyh fouarh vkekU; dj.;kr ;sr vlqu 'kfuokj fn-22-2-2020 yk fHke vkehZ dk;ZdrkZ esGkok dfjrk jsf'keckx eSnkuoj gks.kk&;k dk;Zdzekph ijokuxh ukdkj.;kr ;sr vkgs-
vki.k vkiys dk;Zdze brj fBdk.kh ?ks.;kr ;kok fg fouarh-
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21. According to Shri Mirza, learned counsel for the petitioners, the impugned communication gives no reason and on this ground alone it is liable to be quashed and set aside for it exudes arbitrariness and unreasonableness. We do not think so as far as criticism of it being unreasoned is concerned. . The communication is terse, nevertheless, it gives the reason. The reason is that possibility of creation of situation of disturbance in public order and law is not ruled out, if the permission to hold workers meet is granted. The impugned communication displays an executive or administrative decision which, as per the settled law, does not have for its validity the pre-requisite of detailed reasons, unlike judicial adjudication. In the case of State of NCT of Delhi and another vs. Sanjeev alias Bittoo, reported in (2005) SCC (Cri) 1025, the Hon'ble Apex Court held that scope of judicial review of administrative orders is limited, with the consideration being confined to the legality of decision making process and not legality of the order per se. In other words what the Court has to look for is, whether or not the reason briefly stated in the administrative order is based upon any material which is capable of being seen as existing in the official file or record and if it is found that the material does exist to support the short reason stated in the order under review, the High Court must not interfere with the order. This test is well known and called the test of Wednesbury principle of unreasonableness.
22. By applying the test "Wednusbury unreasonableness", we have to see here as to whether any material exists on official record to support the ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 23/29 reasons stated in the impugned order. According to Shri Mirza, learned counsel for the petitioners, no material not forming part of the order, can be examined in judging the validity of executive order. Relying upon the law laid down by the Hon'ble Apex Court in the case of Mohinder Singh Gill & anr v, The Chief Election Commissioner, New Delhi & ors reported in AIR 1978 SC 851, he submits that validity of the order passed by a statutory functionary must be judged by only the reasoning given in the order and fresh reasons submitted by way of reply or affidavit cannot be considered to examine the validity of an executive order. In the present case, the impugned communication is not the result of discharge of a duty under a particular Statute, but is the product of performance of a duty generally imposed on a Police Inspector regarding maintenance of public order. Therefore, with due respect, we would say that Mohinder Singh Gill's case (supra) does not help the cause of the petitioners and the cause would get its support from Wednesbury doctrine which arrived on the legal scenario in the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. reported in ALL ER pp 682 H-683 A which has been accepted and followed by Hon'ble Supreme Court in several cases including that of Sanjeev @ Bittoo (supra).
23. Coming back to the impugned communication, we find that though detailed reasons are not given at least one reason is stated. It is of "possibility of creation of disturbance in law and order situation". Reply of respondent No.4, however, gives many more reasons. It states that although ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 24/29 the permission has been sought on the pretext of holding of workers meet, the real intention of the meet is different. It is to use the meet for lodging public protest and holding public demonstration against the Citizenship Amendment Act and other related issues. It further states that the main founder of the petitioner No.1 is one Chandrashekhar Azad (Ravan), Advocate, and he is having criminal antecedents with registration of FIRs in Delhi and District Saharanpur, UP and that he is known to deliver hate speeches. According to respondent No.4, this may all result in a very disturbed situation of public order and law. It is also stated that the head- quarter of Rashtriya Syayam Sevak Sangh is situated nearby and it's close situation may flare up the sitution as the participants would be wanting to be more provocative in their speeches.
24. These reasons given as supplement to the sole reason stated in the impugned communication cannot be looked into unless they are sourced from the material available on record and the material which has been actually considered by the Authority issuing the impugned communication. This is what the doctrine of Wednesbury unreasonableness would say. We had called upon the learned APP to produce before us all the record available with respondent no. 4 who issued the impugned communication and it was produced before us. On its perusal, we could not find any material existing in the official record to justify the subjective satisfaction of respondent no. 4 regarding possibility of creation of situation of disturbed public order. We, ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 25/29 therefore, find that the reason stated in the impugned communication is more in the nature of arbitrary apprehension than a reasonable belief. This is one reason why we would call the impugned communication as arbitrary and unreasonable. There are a few more reasons which make the impugned communication unsustainable in law.
25. Impugned communication denies permission for one place and grants it for another. This is self contradictory. If the apprehension is that petitioners and participants may indulge in hate speeches, it does not appeal to reason to say that at one place they may do so and at another they may not. Whole approach adopted in the impugned communication is thus arbitrary.
26. Reliance has been placed upon the criminal antecedents of petitioner no. 2 as also Chandrashekhar Azad, one of the founder leaders of petitioner no. 1 to submit that apprehension expressed is reasonable. Our attention has been invited to copies of First Information Reports registered against these two persons. We have perused them. We find that they could hardly form any basis for apprehending that the workers meet, if permitted to be held at Reshimbagh ground, would reasonably be misused for some ulterior motive, including that of intentionally disturbing public order and peace. Crime No.675/2018 for offences punishable under Section 143, 506 and 109 read with Section 149 of the Indian Penal Code has been registered against the petitioner No.2 and other persons in September, 2018. Crime ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 26/29 No.355/2019 was also registered against the petitioner No.2 and others at Police Station Sadar for an offence punishable under Section 188 of the Indian Penal Code and also an offence under Section 135 of the Maharashtra Police Act, in August 2019. Both these crimes were registered respectively in September 2018 and August 2019 thereby indicating that they have no proximate relation with the apprehension or the danger suggested in the impugned communication. Same is true about the crimes registered against Chandrashekhar Azad (Ravan) Advocate at Police Station Dariyaganj, Delhi (Crime No.250/2019 registered in December 2019 and Police Station Sadarbazar Saharanpur (Crime No.243/2017) registered in May 2017. Therefore, we find that these criminal antecedents of petitioner No.2 and also of the main speaker Chandrashekhar Azad (Ravan) would have no relevance for deciding the question of grant of permission to hold a workers meet at Reshimbagh ground and yet, it appears to us, they have been considered, if reply of respondent No.4 is to be believed and, therefore, the impugned communication has to be termed as arbitrary also on the ground that it relies upon irrelevant material.
27. Suspicion has been expressed about the hidden agenda of the workers meet by relying upon the pamphlet advertising the workers meet scheduled on 22nd February, 2020 at Reshimbagh ground, Nagpur. We would say that respondent No.4, in issuing the impugned communication, has placed too much reliance upon this pamphlet and ignored the purpose specifically ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 27/29 stated in petitioner's application dated 13.2.2020 for holding of the workers meet. The purpose stated in the application dated 13.2.2020 is of workers meet only and nothing more than that, though pamphlet says that in this workers meet, there would also be a public protest of CAA, NRC and NPR. If the respondent No.4 felt alarmed by declarations in the pamphlet, he could have granted a conditional permission holding the petitioner as bound only to what they had clearly expressed to be the purpose of the proposed meet in the application dated 13.2.2020. The respondent No.4 also could have added additional conditions but he did not do so. We are of the view that just to rule out transgressions and crossing the limits of law, if any, suitable conditions can be imposed by this Court also, while quashing the impugned communication.
28. It is also stated in the reply that the main speaker Chandrashekhar Azad (Ravan) Advocate is known to deliver instigatory speeches. However, no material whatsoever is available on record and which has been shown to us except for what appears in the nature of FIRs. to indicate his such proclivity. These FIRs, however, do not contain any excerpts of the speeches allegedly given by the main founder of the petitioner No.1. The argument made in this regard, therefore, requires no further consideration.
29. Thus, we find that the impugned communication is unreasonable and arbitrary and it cannot be sustained in the eye of law. The impugned communication deserves to be quashed and set aside and permission needs to ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 28/29 be granted subject to suitable conditions.
30. In the result, the petition deserves to be allowed conditionally :
31. The petition is allowed conditionally.
32. The impugned communication dated 17.2.2020 is hereby quashed and set aside.
33. Permission to hold workers meet of petitioner No.1 at Reshimbagh ground, Nagpur is granted on following conditions :
(i) The meet shall be held for avowed purpose of workers meet only as disclosed in the application dated 12.2.2020 and it shall not be converted into public demonstration and public protest.
(ii) The workers meet shall be held only between 2.00 p.m. and 5.00 p.m. of 22.2.2020.
(iii) Workers meet shall not be used for any political purpose.
(iv) No inflammatory speeches and no such speeches as would tend to or incite violence or spread hatred amongst citizens or communal ill-
feelings or which would lower down the dignity and reputation of the citizens and nation or prejudicially affect the sovereignty and integrity of India or public order, shall be given by anybody taking part in the meeting.
(v) Workers meet shall be conducted in an atmosphere of peace and dignity.
(vi) After the workers meet is over at 5.00 p.m., Reshimbagh ground shall be vacated completely latest by 6.00 p.m. ::: Uploaded on - 29/04/2020 ::: Downloaded on - 11/06/2020 02:55:03 ::: J-cwp174...20.odt 29/29 The petitioners and main speaker Chandrashekhar Azad shall give a written undertaking that they would abide by and ensure compliance with the above referred conditions to this Court, through Registrar of this Court, before start of the meet which undertaking shall form part of this order.
34. If any of the conditions is/are breached the violator shall be liable not only for the criminal law action, but also contempt of Court action.
35. Authenticated copy of this order be furnished to the learned counsel appearing for the parties.
36. Learned Public Prosecutor is requested to provide copy of this judgment to the Principal Secretary, Home Department, Government of Maharashtra, Mumbai and the Director General of Police, M. S., Mumbai for information.
JUDGE JUDGE
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