2018 Supreme(SC) 732

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
MAZDOOR KISAN SHAKTI SANGATHAN – PETITIONER(S)
VERSUS
THE UNION OF INDIA & ANR. – RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 1153 OF 2017 WITH CIVIL APPEAL NO. 863 OF 2018 CIVIL APPEAL NO. 862 OF 2018 AND CIVIL APPEAL NO. 864 OF 2018
Decided On : 23-07-2018

IMPORTANT POINTS
Right to protest through peaceful assembly although recognised as a fundamental right, is subject to reasonable restrictions.
Principles applied for balancing inter fundamental rights are different than the principles applied in intra-conflict between the same fundamental right. Accentuated public interest has to be given primacy.
Certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed. At the same time, it should be ensured that no inconvenience of any kind is caused to the residents.
Proper guidelines should be framed for regulating such protests, demonstrations, etc.

Headnote:(a) Constitution of India – Article 19(1)(b) – Right to protest through peaceful assembly recognised as a fundamental right – State should not only protect this right but also must aid the right – Yet, rights under Article 19(1)(a) and 19(1)(b) not untrammeled and unlimited in their scope – Subject to reasonable restrictions. (Para 51, 54, 55, 56)

       (1961) 3 SCR 423; (1962) Supp 3 SCR 369; (1973) 1 SCC 227; (2016) 15 SCC 525 – Relied upon

       (b) Constitution of India – Part III – Fundamental rights – Conflict between two fundamental rights – Different situations – Inter fundamental rights; intra fundamental rights; and, one fundamental right enjoyed by a person coming in conflict with the other fundamental right guaranteed to him – Court required to balance the two conflicting rights keeping in mind the larger public interest – Principles applied for balancing inter fundamental rights – Different than the principles applied in intra-conflict between the same fundamental right – Accentuated public interest has to be given primacy. (Para 58, 61)

       (2016) 7 SCC 221; (2017) 4 SCC 397 – Relied upon

       Writ Petition (Civil) No. 5000 of 2010; (1970) 3 SCC 746; (2012) 5 SCC 1; (1978) 1 SCC 226; (1973) 1 SCC 227; (1983) 4 SCC 522; (1973) US Supreme Court; (1945) US Supreme Court; [2006] UKHL 55; (1970) 3 SCC 746; (2018) SCC Online SC 233; Original Application No. 63 of 2016 (NGT); (2005) 5 SCC 733; (2015) 7 SCC 779; 1959 Suppl (1) SCR 904; AIR 1985 Cal 222; AIR 1993 Kerala 1 – Referred

       (c) Constitution of India – Article 19 – Protests at Jantar Mantar – Making situation of residents pathetic – NGT banning protests/demonstrations at Jantar Mantar – Denying protestors their fundamental right – Held, certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed – At the same time, it should be ensured that no inconvenience of any kind is caused to the residents – Directions given. (Para 62, 63, 65)

       (d) Code of Criminal Procedure, 1973 – Section 144 – Prohibitory orders – `Apprehension of breach of peace test' – Requirement of written permission – Cannot be faulted looking to intelligence reports etc – Such orders being repeated in continuum creating a situation of perpetuity – Not proper – Authorities directed to frame proper guidelines for regulating such protests, demonstrations, etc. (Para 66, 69, 70)

       Facts of the case:

       Writ Petition (Civil) No. 1153 of 2017 challenges the repeated imposition of police order under Section 144 of Code of Criminal Procedure, 1973 whereby ban is imposed by the Assistant Commissioner of Police, Sub-Division, Parliament Street, New Delhi District prohibiting the following activities without written permission in the areas known as Parliament House, North and South Block, Central Vista Lawns together with its surrounding localities and areas:-

       "i) The holding of any public meeting;

       ii) Assembly of five or more persons;

       iii) Carrying of fire-arms, banners, placards, lathis, spears, swords, sticks, brickbats etc.

       iv) Shouting of slogans;

       v) Making of speeches etc.

       vi) Processions and demonstrations;

       vii) Picketing or dharnas in any public place within the area specified in the Schedule and site plan appended to this order"

       Civil Appeal No. 862 of 2018 has laid challenge to the judgment and order passed by the National Green Tribunal, Principal Bench, New Delhi in Original Application No. 63 of 2016 filed by Respondent Nos. 1 to 7, who are the residents of Jantar Mantar Road.

       The prayer made in the Original Application was to pass appropriate orders directing the Police Commissioner and other government authorities (who were arrayed as respondents) to disallow the protestors of Jantar Mantar Road stretch between Ashoka Road and Parliament Street or prevent them from using loudspeaker or public announcement system. The NGT allowed the Original Application of Respondent Nos. 1 to 7

       The appellant in Civil Appeal No. 863 of 2018, aggrieved by the same order of NGT, states that she is the sufferer for many years for the grave offence of rape by a police officer on 16th June, 2010 and to attract attention of the concerned persons for redressal for her grievance she has been continuously sitting on dharna at Jantar Mantar and with the ban of such dharna by the NGT, her valuable fundamental right is affected.

       Civil Appeal No. 864 of 2018 is filed by Indian Ex-Serviceman Movement. This organisation, which is fighting for the rights of the ex-servicemen, had been holding dharnas, assembly, speeches, etc. at Jantar Mantar, is precluded from raising its voice because of the order passed by the NGT imposing ban on such types of assemblies.

       Finding of the Court:

       Certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed. At the same time, it should be ensured that no inconvenience of any kind is caused to the residents

       Result: Writ petitions and appeals disposed of.