Calcutta High Court (Appellete Side)
Bharatiya Janata Party vs State Of West Bengal & Others on 20 December, 2018
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
20.12.18
Item No.13
Court No.15
rpan
W.P. No. 25614 (W) of 2018
Bharatiya Janata Party
- Versus -
State of West Bengal & Others
Mr. S. K. Kapoor,
Mr. Saptangsu Basu,
Mr. Kumar Jyoti Tewari,
Mr. Phiroze Edulji,
Mr. Rajdeep Biswas,
Mr. Brajesh Jha,
Mr. Tarun Jyoti Tewari,
Mr. Subassis Das Gupta,
Mr. Rajdeep Biswas,
Mr. Indrajit Das Gupta,
Mr. Subhas Ray,
Mr. Gautam Sardar,
Mr. Pradip Kumar Mondal,
Mr. Soumen Sarkar,
Ms. Mainalini Majumdar,
Mr. C. S. Jha,
Mr. Soumen Bhattacharya,
Ms. Debjani Ghosal,
Mr. Pramod Kumar Darolia,
Mr. Daya Sankar Mishra,
Mr. Ravi Ranjan Kumar,
Mr. Manabendra Bandopadhyay,
Mr. Chirantan Dan,
Mr. Debasis Saha,
Mr. Partha Ghosh,
Mr. Subhojit Seal
... for the petitioner.
Mr. Kishore Datta, Ld. A. G.,
Mr. Abhratosh Majumdar, Ld. A.A.G.,
Mr. Sirsanya Bandopadhyay,
Ms. S. Shaw,
Mr. Arka Kumar Nag
... for the State respondents.
Mr. Anand Grover, Mr. Suhaan Mukherji, Ms. Kajal Dalal ... for the respondent nos.5-6.
The present writ petition has been preferred challenging inter alia an order dated 15th December, 2018 passed by the Chief Secretary, Government of West Bengal, the Principal Secretary, Department of Home & Hill Affairs and the Director 2 General of Police, Government of West Bengal, being the respondent nos.2, 3 and 4 respectively.
Shorn of unnecessary details the facts are that the petitioner is the West Bengal Unit of Bharatiya Janata Party, a political party within the meaning of the Representation of People Act, 1951. A programme was undertaken by the petitioner to organise three yatras/rallies under the banner of "Ganatantra Banchao Yatra". By a letter dated 29th October, 2018, the respondent no.3 was requested to allow a small delegation of the petitioner to meet with him on 5th November, 2018 or earlier as per his convenience to place the programme itineraries and other details. A similar prayer was made to the Home Secretary, Government of West Bengal through a letter dated 5th November, 2018. As the said letters were not responded to, a further letter was submitted to the Home Secretary, Government of West Bengal on 12th November, 2018. Intimating the respondent no.2 about some changes in the overall plan of the yatras/rallies itineraries, a further letter was issued on 20th November, 2018 attaching the synopsis of yatra / rally programmes. In the midst thereof another letter was issued to the respondent no.4 on 14th November, 2018 giving the details of three yatras/rallies. On and from 26th November, 2018 to 5th December, 2018 several letters were also issued by the petitioner to the Superintendents of Police and the District Magistrates of various districts. None of the said letters was replied to and aggrieved thereby the petitioner preferred a writ petition, being W. P. No.24263 (W) of 2018 inter alia praying for issuance of necessary directions upon the respondents to grant permission to organise the three yatras/rallies. The said writ petition was listed for 3 hearing on 4th December, 2018 and was taken up for hearing on 5th December, 2018. In course of hearing on 5th December, 2018, Mr. Datta, learned Advocate-General appearing for the respondent nos.1, 2 and 3 submitted that the petitioner's prayer would be considered by the competent authority and a decision would be taken and that he would be apprising the Court about such decision on 6th December, 2018. On 6th December, 2018, Mr. Datta placed before this Court a letter dated 5th December, 2018, issued by the District Magistrate, Cooch Behar to the Additional Secretary to the Government of West Bengal, Department of Home & Hill Affairs and a letter of the same date issued by the Superintendent of Police, DIB, Cooch Behar to the respondent no.4. In both the letters it was observed that permission for such yatras/rallies should not be granted. By an order dated 6th December, 2018, passed in W. P. No. 24263 (W) of 2018, this Court issued a direction upon the Superintendents of Police of all the districts to grant an opportunity of hearing to the district president or the district secretary of the petitioner in the respective districts and to take a decision as to whether permission can be granted to the petitioner to hold the rallies and to communicate a decision to the petitioner peremptorily by 21st December, 2018 and the writ petition was made returnable on 9th January, 2019. Aggrieved by the said order the petitioner preferred an appeal, being MAT No.1522 of 2018 and in the same an order was passed on 7th December, 2018. The operative part of the said order runs as follows:
"In such circumstances as stated above, we propose to modify the order dated 6th December, 2018, passed by the learned Single Judge as follows:
The Chief Secretary, Government of West Bengal, the Principal Secretary, Department of Home & Hill Affairs and the Director General of Police, Government of West Bengal, shall 4 meet the authorised representatives of the appellant/writ petitioner (not exceeding three) latest by next Wednesday (12.1.2.2018) and take a decision in the matter supported with cogent reasons and communicate the same to the appellant/writ petitioner by next Friday (14.12.2108)".
Pursuant to such direction the committee consisting of the respondent nos.2, 3 and 4 heard the representatives of the petitioner and communicated an order dated 15th December, 2018.
Mr. Kapoor, learned senior counsel appearing for the petitioner submits that it would be explicit from the impugned order that the decision communicated was at the behest of the State Government. The committee constituted by the Hon'ble Appeal Court was vested with the authority to decide the dispute but the order passed does not reflect any independent application of mind on the part of the members of the said committee and as such, the said order is not sustainable in law. From the contents of the said order passed by the Hon'ble Appeal Court, it would be explicit that the Court reposed faith upon the highest officials of the State. However, the said officers rejected the petitioner's prayer in a mechanical manner. The said committee did not even consider the petitioner's representations forwarded to them by the Additional Secretary to the Hon'ble Governor.
He further submits that the perusal of the impugned order would reveal that the petitioner has been denied permission to organise the yatras/rallies merely on the basis of an apprehension that the yatras/rallies would lead to a major breach of peace and communal violence. Such apprehension is, however, not based on requisite evidence. The consequence of such an order is very serious inasmuch as the same affects the fundamental right of the petitioner.
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Drawing the attention of this Court to a letter dated 5th December, 2018 issued by the Superintendent of Police, DIB, Cooch Behar, which was produced on the date of hearing of the earlier writ petition, he submits that the Superintendent of Police, DIB, Cooch Behar observed that permission for such yatras/rallies should not be granted in the background of overall communal scenario and happenings around the country and as the said district is highly sensitive. On the basis of such vague intelligence input, the petitioner cannot be denied to organise the yatras/rallies. Referring to a further letter issued on the self-same date by the District Magistrate, Cooch Behar to the Chief Secretary to the Government of West Bengal, Department of Home & Hill Affairs, he submits that the said officer observed that permission cannot be provided as the persons named therein would be holding a meeting and their associates may be backed by communal forces. The said observations are based on individualistic and egocentric perception of the concerned officers. The State Government wants to stop the yatras/rallies on the basis of such vague inputs. The said order has no reasonable basis and has been passed on mere surmises. As the State is not agreeable to grant inspection of the intelligence inputs to the learned advocate appearing for the petitioner, the Court need not look into the same. In support of such contention he has placed reliance upon a judgment delivered in the case of Hindustan Motors Limited & Ors. vs. T. N. Kaul & ors., reported in 1971 CLJ 181.
According to Mr. Kapoor, holding of a yatra / rally, is a natural demonstration of political activities of a political party and a decision to restrict or prohibit such yatra / rally must invoke an element of subjectivity on cogent and convincing 6 materials. The yatras/rallies cannot be restricted by law as long as they are within the limits of public law and order. It is an inherent duty of the State to maintain such law and order for which they can only impose reasonable restrictions. The highest officials of the State, however, have totally denied such permission to the petitioner to hold such yatras/rallies and have not even applied their minds and have not considered as to whether such permission can be granted upon imposition of reasonable restrictions and as such the said order is not sustainable in law and the petitioner should be permitted to hold the yatras/rallies, as prayed for. In support of such argument, reliance has been placed upon a judgment delivered in the case of State of West Bengal & Ors. vs. Dr. Anindya Gopal Mitra & Ors., reported in 1997 CWN 587.
Placing reliance upon the judgment delivered in the case of Ramlila Maidan (supra), Mr. Kapoor submits that no person can be divested of his fundamental rights and they are incapable of being taken away or abridged. All that State can do, by exercise of its legislative power, is to regulate those rights by imposition of reasonable restriction on them. Such restriction must have a direct and proximate nexus with the object sought to be achieved. Merely by making a statement that there is an apprehension of breach of peace, the State cannot divest itself of its jurisdiction to ensure law and order in society.
Per contra, Mr. Datta, learned Advocate General appearing for the respondent nos. 1 to 3 submits that the right exercised under Article 19 of the Constitution of India is not an inchoate or absolute right but is subject to the public order meaning thereby the sovereign can restrict and prohibit any individual or 7 group to conduct a yatra/rally. If an order is passed by the State of law and order, it cannot be impinged on the ground of unreasonableness. The fact that the religious overtone of the yatras/rallies will turn into communal propaganda would be explicit from the contents of the leaflets annexed at page 212 of the writ petition. The State respondents should be allowed to use an affidavit-in-opposition to specifically deal with the allegations levelled against them in the writ petition.
He further submits that in the order dated 7th December, 2018 the Hon'ble Appeal Court has observed that all the issues raised in the letters dated 5th December, 2018, as annexed at pages 176 to 178 of the present petition, may have serious consequences all over the State and that the issues need to be considered by the highest officials of the State. The maintenance of the law and order is within the realm of the executive powers and executive functions leave hardly any scope for interference by the judiciary in exercise of the power of judicial review under Article 226 of the Constitution of India. Wisdom in administrative action is the property of the executive and judicial interference is very limited.
He further submits that a perusal of the impugned order would reveal that the decision denying permission to the petitioner to organize such yatras/rallies stand supported with requisite evidence and is an informed decision. The same is neither perverse nor illogical and has not been issued on extraneous consideration. When the order was passed by the highest officials of the State, it should be presumed that the discretion vested in such high authority will not be an abuse. There is always a presumption that public officers discharge their duties honestly and in accordance with the rules of law. The Court should not go into the 8 correctness of the decision taken by the highest officers of the State and it should not substitute its own decision. Scope of judicial review is limited to the deficiency in the decision making process and not the decision, otherwise the rule of law would stand replaced by the individual perception.
In support of such argument, reliance has been placed upon the judgments delivered in the case of Organo Chemical Industries & Anr. Vs. Union of India & Ors. reported in (1979) 4 SCC 573, Ram Saran vs. IG of Police CRPF & Ors. reported in (2006) 2 SCC 541, State of Karnataka & Anr. Vs. Dr. Praveen Bhai Thogadia reported in (2004) 4 SCC 684, State of U.P. & Anr. Vs. Johri Mal reported in (2004) 4 SCC 714, State of U.P. & Ors. vs. Rakesh Kumar Keshari & Anr. reported in (2011) 5 SCC 341, Dharam Chand vs. Chairman, New Delhi Municipal Council & Ors. reported in (2015) 10 SCC 612, State of Punjab & Anr. Vs. Gurdial Singh & Ors. reported in (1980) 2 SCC 471.
Drawing the attention of this Court, provision of Section 12 of the Police Act, 1861 and Regulation 134 of the Police Regulation of Bengal he submits that on the basis of authority conferred by Section 12, regulations have been framed which permit the State to refuse permission with a view to secure public safety and convenience.
He further submits that the expression 'regulation' is a term which is capable of being interpreted broadly and that in a given case, it may amount to total prohibition. The decision taken to that effect by the highest officials of the State is based on the intelligence inputs received from several districts and as such it cannot be argued that the decision is perverse. Such a decision taken by the highest 9 officials of the State do not have adjudicative disposition and may not strictly fall for consideration before a judicial review court. In support of such argument reliance has been placed upon a judgment delivered in the case of Talcher Municipality vs. Talcher Regulated Market Committee & Anr. reported in (2004) 6 SCC 178.
Placing reliance upon a judgment delivered in the case of Wasiuddin Ahmed vs. District Magistrate, Aligarh, U.P. and others reported in (1981) 4 SCC 521, Mr. Datta submits that there is no provision towards supply of copy of the intelligence inputs as received by the State to the petitioner. On the basis of the said inputs, the highest officials of the State, in exercise of their discretion have decided to deny permission to the petitioner. Such a decision can neither be termed as perverse nor it can be said to be unreasonable.
Mr. Datta further submits that judgment delivered in the case of Himmatlal vs. Commissioner of Police, Ahmedabad & Ors. reported in (1973) 1 SCC 227 is not applicable to the facts of the present case inasmuch as the Court was only dealing with the rules pertaining to holding of public meeting and the rule for any procession was not under challenge in the same.
Reliance has also placed on the judgment in the case of Ramlila Maidan Incident In Re: reported in (2012) 5 SCC 1 in support of his argument that for maintenance of public order the State has every authority to restrict a procession and that public order as referred to under Article 19(2) of the Constitution of India may qualify for a greater degree of restriction.
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Mr. Datta submits that the judgment delivered in the case of Dr. Anindya Gopal Mitra (supra) is totally distinguishable on facts inasmuch as the Court was considering an issue pertaining to refusal of permission in respect of a meeting held in a single date. In the instant case the petitioner wants to organize three rallies and from the averments made in paragraph 29 of the writ petition it has been stated by the petitioner that each of such rally is expected to be of 1,500 persons. The judgment delivered in the case of Hindustan Motors Limited (supra) is also distinguishable on facts.
Mr. Grover, learned senior advocate appearing for the respondent nos. 3 to 5 submits that the nature of the yatras needs to be taken into consideration prior to grant of any permission. The said yatras/rallies would be continuing for more than a month and would be covering all the districts of West Bengal. The petitioner is intending to organize the yatras/rallies describing the same as 'Rath Yatra', as would be explicit from the graffiti and posters. In the same, image of Rath has been incorporated which gives rise to a perception of religious overtone. Such perception is also backed by intelligence inputs which cannot be ignored. Applying the 'apprehension of breach of peace', to the facts of the present case the authorities have rightly refused permission to organise the yatras/rallies. In support of such contention reliance has been placed upon the judgment delivered in the case of Majdoor Kishan Shakti Sangathan vs. Union of India & Ors. reported in (2018) SCC Online 724.
Placing reliance upon a judgment delivered in the case of Pratap & Anr. Vs. Union of India reported in (1997) 5 SCC 87 and in the case of Laxmikant vs. Union of 11 India reported in (1997) 4 SCC 739, he submits that imposition of total prohibition is permissible on the part of the State.
Mr. Grover, however, has submitted that in the event the petitioner approaches the authorities for holding some meetings, the authorities would certainly consider the same and grant permission, in accordance with law.
In reply, Mr. Kapoor submits that a decision is an authority for what it decides and not what can logically be deduced therefrom. Even a slight distinction in fact or an additional fact may make a lot of difference in the decision making process.
In the case of Johorimal (supra), the issue was pertaining to appointment and selection of advocates as government counsel. In the case of State of Punjab (supra), the Court was dealing with an issue of acquisition of land. The case of Ramsaran (supra) was pertaining service conditions of a constable. The said judgments are distinguishable on facts, however, in the same it has also been observed that on the ground of unreasonableness, the Court can interfere with administrative action.
In Talcher Municipality (supra), the issue was involving requisition and the constitutional validity of a regulatory statute was under consideration. In the case of K. Ramanathan (supra), the constitutional validity of a regulatory statute was being examined. In the case of Mirzapur Moti Quereshi Kassab Jamat (supra) the Court was considering the provisions of Article 19(1)(g) and Article 48 of the Constitution of India. In the case of Pratap Pharma (supra) the Court was considered in the prohibition imposed upon a drug and interference was called for since the prohibition was found to be reasonable a restriction. In the case of 12 Laxmikant (supra) the Court did not interfere with the ban imposed with the use of tobacco in toothpaste and toothpowder as the same was found to be prone to cancer.
The provisions under the Police Act of 1981 and the Police Regulation of Bengal as relied upon apply in a different field occasioning applications for permission when apprehension is anticipated of public tranquility on an impeccable and discreet materials and report and not on mere surmises and conjecture, assumption or presumption. There should be a reasonable basis to form an opinion and the provisions of Police Regulation of Bengal do not vest upon the State, an absolute power to prohibit a rally.
The maintenance of law and order is within the domain of the State and the decision to prevent and protect any untoward incident should be founded on convincing materials and not merely on the basis of an apprehension that the yatras would turn into communal propaganda. The standard of 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.
Indisputably, none of the representations submitted by the petitioner on and from 29th October, 2018 till 5th December, 2018, as annexed to the present writ petition, were answered by the respondents. No reason was given as to why the same were not responded to. During the said period, there was no intelligence input. Answering the query of the Court when the earlier writ petition was first taken up for hearing on 5th December, 2018, it was submitted that the petitioner's 13 prayer would be considered by the competent authority and a decision would be taken and the Court would be apprised of the same on the next date. Accordingly, on 6th December, 2018 two letters were produced. In the first letter dated 5th December, 2018 issued by the District Magistrate, Cooch Behar it was observed as follows:
"Mr. Amit Shah, an M.P. of BJP, Mr. S. S. Ahluwalia, MOS, Electronic & IT, GoI, Mr. Biplab Deb, Chief Minister of Tripura, Mr. Sarbananda Sonewal, Chief Minster of Assam, Mr. Kailash Vijaybarjiya, Mr. Mukul Roy, Mr. Dilip Ghosh, MLA and Ms. Roopa Ganguly, M.P. will hold a meeting and Rath Yatra on 7th December, 2018 without permission at or nearby Cooch Behar and such exercise of them and their associates may be backed by communal forces. It appears from Intelligence police inputs that there is every apprehension that this exercise will instigate serious communal disharmony which may cause deep fault lines and violence in civic society resulting harm to property and even to life.
Under such circumstances permission could not be provided."
In the second letter dated 5th December, 2018 issued by the Superintendent of Police, DIB, Cooch Behar, it was observed as follows:
"Information indicates that some communal provocateurs and rowdy elements have already become active and they have designs to create disturbances in the backdrop of this programme. In the background overall communal scenario and happenings around the country and also because of the ill designs of the communal provocateurs in the district there has been an alarming incidents of assault and attempted lynching by "Gorakshak" of persons of different community carrying cow meat which has generated huge tension and apprehension in the locality. On this issue vide Kotwali PS Case 14 No.738/18 dated 01-12-2018 u/s 143/ 341/ 325/ 307/ 379/ 506 IPC has been started and 3 (three) persons have been arrested."
Both the said letters were pertaining to the district of Cooch Behar and in support of the input, it was only stated in one letter that only one criminal case has been registered, being Kotwali P. S. Case no.738 of 2018 dated 1st December, 2018. On that date, admittedly, no further intelligence input from any other district was existing. The Hon'ble Appeal Court heard the matter on 7th December, 2018 and a meeting was fixed on 12th December, 2018 and a decision was stating inter alia that the said officers had 'obtained intelligence inputs from D.Ms., CPs and SPs and also the assessment of the Intelligence Branch' and that according to said officers the 'areas proposed to be covered by the Yatra are because of publicity and propaganda gradually turning into communally sensitive pockets.' It was also observed that the intelligence reports indicated 'that public perception is that the religious overtones of the Yatra will be termed into communal propaganda' and that 'in several districts organizations with overtly communal agenda such as the RSS, Bajrang Dal and VHP would actively join the Yatra.' From the said remarks, it appears that the concerned officials were considering intelligence reports in several districts. However, the names of the concerned districts were not disclosed and even without any form of report pertaining to the other districts, the petitioner has been mechanically denied permission to organise the yatras/rallies. The letters, which were first produced before this Court on 6th December, 2018, were, however, in respect of a single district and an apprehension of beach of peace occasioned, according to the authorities, since one criminal case was registered.
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In the said conspectus of facts, it cannot be stated that the concerned officials had sufficient material to totally deny permission to the petitioner to organise the said yatra/rally without even making an endeavour to ascertain as to whether the yatra can be allowed to be organised by imposing reasonable restrictions. The judgments, upon which reliance have been placed as regards the scope of judicial review, disclose a consistent stand that the discretion exercised by the administrative authorities can certainly be interfered with in exercise of this Court's power of judicial review when such power has been exercised in a whimsical and unreasonable manner. In the instant case, without providing for reasonable restrictions, the authorities have passed an order towards total exclusion, which in my opinion, does not satisfy the test of reasonableness. When the yatras/rallies are not for any unlawful purposes, the same ought not to be totally prohibited unless there is an imminent threat to the breach of public order; even then, the restraint must be just and reasonable. The threat to public peace and tranquility should be real and not imaginary or a mere likely possibility.
Till 5th December, 2018, several representations made by the petitioner were not attended to. When the earlier writ petition came up for hearing, two letters were produced pertaining to one district. No reason is forthcoming as to why intelligence inputs were not called for immediately upon receipt of the first representation of the petitioner submitted on 29th October, 2018. Whenever the State proposes to impose a restriction on the exercise of fundamental rights, such restriction has to be reasonable and free from arbitrariness. The order impugned does not disclose the data on the basis of which a total prohibition was required. It 16 also does not disclose that any attempt was made by the concerned officers to weigh the circumstances and for issuance of reasonable restriction.
Applying the proposition of law to the facts of the present case, I am of the opinion that it would be appropriate to permit the petitioner to organise the yatras/rallies, as prayed for. The impugned order dated 15th December, 2018 is, accordingly, set aside.
The petitioner, through its learned advocate, undertakes before this Court that:
a) the petitioner shall inform the Superintendent of Police of the concerned district in which the yatra/rally shall enter, at least 12 hours before entering the concerned district;
b) the petitioner will ensure conducting the yatra/rally in an orderly fashion, in a peaceful manner and abiding by all ecological norms;
c) the yatra/rally shall not impede the normal movement of vehicular traffic;
d) the yatra/rally shall be held in consonance with the rules and regulations governing and regulating the traffic system.
It is made clear that the petitioner shall abide by every just direction of the State administration and the petitioner shall also be vicariously liable for any wrongful loss and damage to the public.
The police administration shall deploy adequate police force to ensure that there is no breach of law and order.
With the above observations and directions, the writ petition is disposed of. There shall, however, be no order as to costs.
17After the order is passed, Mr. Datta, learned Advocate General appearing for the State respondents, prays for stay of operation of the order.
Such prayer is considered and rejected.
Photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be given to the learned advocates appearing for the parties on their usual undertakings.
(Tapabrata Chakraborty, J.)