Kerala High Court
Peoples Council For Social Justice, ... vs State Of Kerala And Ors. on 28 July, 1997
Equivalent citations: AIR1997KER309, AIR 1997 KERALA 309, 1997 A I H C 4275, ILR(KER) 1997 (3) KER 466, (1997) 2 KER LT 301, (1997) 4 RECCIVR 197, (1997) 2 KER LJ 113
Bench: P.K. Balasubramanyan, J.B. Koshy
JUDGMENT Balakrishnan, J.
1. These three Original petitions have been filed seeking a writ of mandamus or other appropriate order directing the respondents to ensure that all demonstrations or processions of any form within the Cochin Corporation area are conducted without obstructing in any way the free movement of pedestrians and vehicular traffic. O.P, No. 12343 of 1991 is filed by a public spirited citizen. In O.P. No, 3040 of 1988 and O.P. No. 7827 of 1994 are filed by a registered Societies. When these matters came before the learned single Judge it was felt that the questions of law involved in these Original Petitions are of general importance and these cases were referred to a Bench.
2. We heard counsel for the petitioners, learned Advocate General and some of the counsel for respondents.
3. Petitioners allege that though Ernakulam city is commercially very important, the roads, such as, Banerji Road, M.G. Road, Shanmugham Road and Chittoor Road are not very much wide and except M.G. Road, all other roads are not sufficient to accommodate the every increasing vehicular traffic. These roads are maintained by the Cochin Corporation. Various institutions like Courts, Hospitals, Colleges and Schools, Banks and other establishments are located within a small area and they are accessible only through the roads mentioned above. The bus services, boat service, railway and airport etc. can be approached only through the main roads of the Cochin city. If any of these important roads is blocked the entire flow of traffic will be paralysed.
4. One of the important problems faced by the general public is that these roads are often blocked by the authorities to facilitate the political parties or other organisations to take out processions or demonstrations through public streets. Whenever procession or demonstration passes through any of these roads the entire vehicular traffic is blocked. This causes undue hardship to the public. Sometimes processionists stage 'dharna' in front of the State Government Offices and Central Government Offices. Even if there are very few persons in the procession its participants block the roads completely and prevent vehicular traffic and most often they do not allow the pedestrians to cross to roads. According to the petitioners, the blocking of roads and completely stopping the movements of the pedestrians and vehicles are serious violations of the rights of the public. Those who want urgent medical attention or to attend public examination or interviews or to reach Airport to catch the flight find it extremely difficult and the participants of demonstration and procession prevent these persons from going to their destination and the authorities are not doing anything to avoid the hardships of the public. Though the political parties and religious congregations have a right to assemble peacefully and move through these roads they have no right to create unreasonable obstruction which may cause inconvenience to others. Petitioners allege that under Section 149 of the Criminal Procedure Code and Section 19 of the Police Act it is the duty of the police to prevent the commission of any public nuisance. The police have a duty to prevent the obstruction on the road. Therefore, the petitioners pray that there shall be a writ of mandamus or other appropriate direction directing the authorities to ensure that all demonstrations and processions of any form within the Cochin Corporation area is conducted without obstructing in any way the free movement of pedestrians and vehicular traffic.
5. A counter-affidavit is filed by first respondent in O.P. 12343 of 1991. It is conceded that the demonstrations and processions result in traffic blockade and it causes inconvenience to the public, but it is contended that there is no any action on me part of the authorities in preventing such demonstrations and processions. It is submitted that the police are helpless in preventing such things, even though they are taking all possible steps to inform the public in advance about the possibility of traffic blockade due to processions and demonstrations so that the public can schedule their programmes in such a way to avoid the inconvenience caused by such demonstrations. Often traffic is deviated through alternative routes. In the absence of definite guidelines based on public policy and for lack of resources, it is not possible for the police to prevent demonstrations and processions invoking the provisions of law. Demonstrations and processions being an accepted practice in an open society, the police are not expected to use force to check such mass movement of people. They cannot be treated on par with isolated groups causing public nuisance on disturbance in the streets. It is further stated that it would be physically impossible for the police force available in the City to prevent thousands of unarmed people marching through the streets under the banner of political parties, religious groups and other organisations. It is submitted that it would be ideal if the parties and groups themselves come forward to evolve guidelines based on self-imposed code of conduct.
6. Freedom of association and assembly are linked with human rights and individual has a right to associate with groups in order to make his or her views known publicly and obtain public support. Clearly a protest or plea for support will be more effective if carried out collectively rather than individually. All free societies recognise the need, firstly to allow citizens to join or support groups which express a view at variance with the government view and secondly to allow such groups to assemble in order to express their views publicly. Allowing citizens to engage in public protest is one of the main distinctions between a totalitarian society and a democracy. Freedom of association would almost cease to exist if citizens could join a group but could not meet regularly with it. Freedom of assembly includes freedom to engage in an entirely spontaneous demonstration and is closely associated with freedom of speech.
7. In a decision of the Privy Council reported in Said Manzur Hassan v. Saiyid Muhammed Zaman, AIR 1925 PC 36 Lord Dunedin held :
"There is a right to conduct a religious procession with its appropriate observances along a highway. Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thorugh fare or breaches of the public peace; and a suit lies for the declaration of such right. But a claim by one sect, for the exclusive use of the highway for their worship is untenable."
8. In a Full Bench decision reported in Vijiaraghava Chartar v. Emperor, (1903) ILR 26 Madras 555 the Madras High Court considered the question of religious procession on highways. One Tengalai sect had obtained a decree in a civil suit declaring their rights entitled to hold certain offices connected with a temple, and as such office-holders were entitled to recite certain hymns in processions. Another sect by name Vadagali tried to interfere with the rights of Tangalai sect in the recital of hymns. After the court decree the Tengali sect was conducting religious procession along a public highway chanting hymns. It was contended against Tengalai sect that they were using the highway and, therefore, it was unlawful. Justice Benson Held:
"There is nothing illegal, in India (where highways have from time immemorial been used for the passing of religious processions), in a procession or assembly engaging in worship while passing along a highway. If it were necessary to refer the origin of the use of highways for religious processions to a dedication of the highway to such use, such a dedication could reasonably be presumed, history, literature and tradition showing that such processions have formed a feature of the national life from the earliest times, and it being unreasonable to suppose that a dedicator would make a reservation against religious processions, which would be wholly opposed to the sentiment of the community."
9. In Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166, Rule 4A of the Bihar Government Servants' Conduct Rules, 1956 which prohibited any form of demonstrations for the redress of the grievance of Government servants was challenged on the ground that it was violative of the fundamental rights guaranteed to them under Article 19(1)(a) and (b) of the Constitution. A Constitution Bench of the Supreme Court considered the question whether right to make demonstrations is covered by the fundamental rights under Clauses (a) and (b) of Article 19(1) of the Constitution. In paragraph 13 of the judgment if was held that:
"A 'demonstration' is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party sect or society........ as by a parade or mass-meeting". Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Article 19(1)(a) or 19 (1)(b). A demonstration might lake the form of an: assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Article 19(1)(a) & 19 (1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances."
10. It was held in Life Insurance Corporation of India v. Manubhai D. Shah, AIR 1993 SC 171 that:
"Freedom of speech and expression is a natural right which a human being acquires on birth. It is, therefore, a basic human right. The words 'freedom of speech and expression' has to be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities".
11. The scope and ambit of the right of freedom of speech and expression was considered in detail in Maneka Gandhi v. Union of India, AIR 1978 SC 597.
It was held by Justice P. N. Bhagwati as he then was jointly with Untwalia and Murtaza Fazal Ali, JJ. that:
"There are no geographical limitations to freedom of speech and expression guaranteed under Article 19(1)(a) and this freedom is exercisable not only in India but also outside and if State action sets up barriers to its citizen's freedom of expression in any country in the world, it would violate Article 19(1)(a) as much as if it inhibited such expression within the country. This conclusion would on a parity of reasoning apply equally in relation to the fundamental right to practise any profession or to carry on any occupation, trade or business guaranteed under Article 19(1)(a)".
It was held at para 77 of the judgment that:
"Even if, a right is not specifically named in Article 19(1), it, may still be a fundamental right covered by some clause of that Article if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right.......... What is necessary to be seen is, and that is the test which must be applied, whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right."
12. The right to assemble peaceably and the right to form association or union and to have freedom of speech and expression for such association or union are valuable fundamental rights recognised under our Constitution. The right to take procession along the highway is a part of this right. However, these rights should be exercised without causing injury or annoyance to others. As regards procession and street marches, the authorities have got every right to impose reasonable restrictions just as the participant of these processions and marches have got right to use the highway the ordinary citizens and pedestrians have also got equal right to pass and re-pass along the highway.
13. Demonstrations and processions along the public street are restricted in so many ways. In Kerala there is a Police Act where there are provisions to impose restrictions. Section 19 of the Kerala Police Act reads as follows :
"Section 19. Regulations of public assemblies and processions and music in streets.--
The Superintendent of Police may, as occasion requires, subject to any order or direction, if any, issued by the District Magistrate--
(i) direct the conduct of assemblies and processions in any street and specify, by general or special notice, the routes by which and the times at which, such procession may pass;
(ii) require by general or special notice on being satisfied that any person or class of persons intend to convene on collect an assembly in any street or to form a procession which would in his judgment, if uncontrolled, be likely to cause a breach of the peace, that the persons convening or collecting such assembly or directing or promoting such procession shall not do so without applying for and obtaining a licence;
And on such application being made, the Superintendent may issue a licence specifying the names of the licensees and defining the conditions on which alone such assembly or procession is to be permitted to take place;
(iii) prevent obstruction on the occasion of all processions and assemblies and in the neighbourhood of all places of worship during the time of public worship, and in all cases when any street or public place or place of public resort may be thronged or liable to be obstructed; or
(iv) prohibit or regulate the use of music or sound amplifiers or drums; tom toms or other noisy instruments in any street or public place and in any private place if their use may cause annoyance to neighbours".
14. There is also the Central Act viz. the Prevention of Damage to Public Property Act, 1984 (Act No. 3 of 1984). Section 3 of the Act says that whoever commits mischief by doing any act in respect of any public properly other than public property of the nature referred to in Sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
15. The grievance of the petitioners is that in spite of the powers conferred on the police under Section 19 of the Kerala Police Act no effective steps are being made to control processions and marches along the highway. It is contended by the petitioners that on many occasions demonstrations and processions along the public roads continue for hours together and almost all the main roads are blocked and pedestrians and vehicles are not allowed to pass through the roads and the police become silent spectators of these unauthorised use of highways. Just as the participants of demonstrations and processions have got a right to use the roads the passengers and other citizens have also got equal rights to use the roads for passing and re-passing. Quite often the pedestrians are not allowed to cross the roads by cutting across the moving procession, In a city like Cochin where there are no link-roads it would be difficult for the ordinary persons to reach their destinations when there is demonstration or procession covering entire streets for hours together. It is the duty of the police to regulate these public assemblies and processions in an orderly manner. Under no circumstance these processionists and demonstrators shall be allowed to obstruct the road completely so that it would be impossible for others to use the road. Under Section 19(iii) of the Police Act it is the duty of the police to prevent obstruction on the occasion of all processions and assemblies and in the neighbourhood of all places of worship during the time of public worship, and in all cases when any street or public place or place of public resort may be thronged or liable to be obstructed. The organizers of these assemblies or processions are bound to give prior notice to the police authorities. If the police apprehends that there would be any serious public disorder or serious damage to property they shall take all precautions. The police would be well within their authority to give direction as to the timings of the procession and the members of the marchers who are permitted to go and the police can prohibit it from entering any public place or direct in which direction the processionists shall go.
16. Learned Advocate-General submitted that there are sufficient provisions in the Criminal Procedure Code and in the Police Act to regulate public procession and all steps are taken by the authorities. It is submitted that in certain cases the processionists carry lengthy banners that occupy almost all the tarred space of the road. However, the police try their level best to cause least hardships to the pedestrians. But, counsel for the petitioners contend that whenever there is a procession or demonstration the entire traffic is blocked and the pedestrians are not allowed to pass and re-pass through the road and even if the number of participants in the procession or demonstration is very much less the inconvenience caused to the public is the same. Petitioners' counsel also pointed out that similar question came up for consideration before this Court in Sankaranarayanan v. State of Kerala, 1985 Ker LT 722 : (AIR 1986 Kerala 82). There was an assurance on the part of the Government that the Police would take all possible steps and the then Advocate-General of the State Government gave an undertaking and the same was recorded by the Court in the following lines (at p. 86 of AIR) :
"The Original Petitions are disposed of in the light of the assurances contained in the counter-affidavit, and the submission of the, Advocate General that the State Government will take up forthwith the enactment of a law to regulate the use of public places by public processions, political, religious and otherwise, in such a manner as not to obstruct the use of public streets and other public places by the ordinary citizens".
But the petitioners' counsel pointed out that no such enactment was made and public processions and demonstrations are continued causing great inconvenience to the public.
17. In the light of the provisions contained in the Kerala Police Act under Section 19, the Government could have issued strict instructions to the police regarding the manner in which processions and demonstrations are to be conducted. It is a fact that in the absence of specific direction the police find it difficult to control the same. In view of the circumstances, we are constrained to give the following directions as otherwise the valuable fundamental rights guaranteed to the pedestrians under Articles 19 and 21 of the Constitution will be in danger. Therefore, in the interest of the public, there should be some restrictions and limit to processions and demonstrations in the public places.
(i) The organizers of the procession or demonstration shall give advance notice to the highest Police Officer of the District or such other officer authorised by the Government at least six days before the procession or demonstration is intended to be held. The notice must contain a brief note giving the reasons and purpose of the demonstration or procession and the approximate number of participants.
(ii) The participants of procession/demonstration shall not be allowed to occupy the entire breadth of the road so as to obstruct the passing and re-passing of pedestrians or vehicles through the road. The processionists shall not be allowed to carry lengthy banners so as to occupy the entire breadth of the road. The police should restrict the length of the banners if it is likely that the same would cause obstruction to the pedestrians and vehicular traffic.
(iii) In all road junctions pedestrians shall be allowed to cut across the procession/demonstration and the police shall help the pedestrians to cross the road. Such crossing shall be once in every 10 minutes in every road junction and the police shall help and regulate the same by appropriate directions.
(iv) If any participant in the demonstration/ procession engages in disorderly conduct he shall be dealt with according to law.
(v) Participants of processions/demonstrations shall not be allowed to carry any weapons or instruments that could be used as dangerous weapons.
(vi) There shall be sufficient contingent of police and the police shall take all possible steps to regulate public assemblies and processions as envisaged under Section 19 of the Police Act and shall see that it shall be peaceful and cause least inconvenience to the public.
(vii) Any wrongful act or omission upon or near public street by any of participants in the demonstration/procession whereby the public are prevented from freely, safely and conveniently passing along such public road shall be dealt with according to law.
(viii) Road picketting and dharnas on public roads, being clear violations of law, shall strictly be prohibited and the police shall see that the persons who cause such obstruction to the pedestrians and vehicular traffic be removed from the road.
(ix) The Government shall issue appropriate circulars to the police authorities impressing upon them the need to enforce the provisions contained in the Police Act.
With the above directions, the Original Petitions are disposed of.