ORDER :

1. We have permitted the learned counsel appearing for the petitioner to proceed on the footing that the amendment has been granted in terms of the prayer made in I.A. No.2 of 2020. In support of the existing prayers, additional averments are sought to be added by way of an amendment application.

2. The first prayer in the petition is for quashing clause 3 of the Licensing and Controlling of Assemblies and Processions (Bengaluru City) Order, 2008, (for short ‘the said Order’) on the ground that it is unconstitutional, and ultra vires the provisions of the Karnataka Police Act, 1964, (for short ‘the said Act’). The second prayer is for quashing the document published on the official website of the Karnataka Police, captioned as “Permission for Peaceful Assembly and Procession” which is from page numbers 36, 37 onwards of the petition. The question is whether the said Order imposes unreasonable restrictions on the fundamental rights conferred by sub-clauses (a) and (b) of clause 1 of Article 19 of the Constitution of India.

3. The first submission of the learned counsel appearing for the petitioner is that clause 3 of the said Order is unconstitutional as it is a prior restraint on processions or public assemblies. His submission is that prior blanket restraint on the exercise of the rights guaranteed under clauses (a) and (b) Article 19(1) of Constitution of India cannot be imposed and the provisions for licencing introduced by clause 3 of the said Order is prior restraint which is blanket in nature. He submits that penal action is contemplated for non-compliance with the requirement of obtaining license amounting to a disproportionate interference with the fundamental freedoms guaranteed by the Constitution of India.

4. He relies upon the concurring judgment of Mathew J. (as he then was) in the case of HIMAT LAL K. SHAH & ORS VS. COMMISSIONER OF POLICE AHMEDABAD & ORS.1 He invited our attention to clause (o) of subsection (1) of Section 31 of the said Act which per se contemplates only regulation of the assemblies and processions. He submits that the said Order is issued in exercise of the power under clause (o) of sub-section (1) of Section 31 of the said Act, though the said clause does not permit prohibition of assemblies or processions under the guise of regulating processions and assemblies. The said Order which provides for prohibition of assemblies is contrary to clause (o) of sub-Section (1) of Section 31 of (1973) 1 SCC 227 the said Act. Paragraph 52 of the decision in the case of HIMAT LAL (supra) is relevant which reads thus:

“52. What the sub-section provides is making of rules for ‘regulating’ the conduct and behaviour, or action of persons constituting assemblies. The subsection presupposes an assembly and authorises the making of rules for ‘regulating’ the conduct, behaviour or action of the persons who are members thereof. Rule 7 impliedly given power to the commissioner to refuse permission to hold a public meeting and, when a meeting is prohibited, there is no question of regulating the conduct, behaviour or action of persons constituting assembly, as, ex-hypothesi, no assembly has been constituted. The sub-section does not authorise framing of rules to regulate the conduct, behaviour or action or persons before an assembly is constituted. Before an assembly is constituted, every member of the public is a potential member of it, because every such member, if he so choose, might become a member of the assembly. Does, then, the sub-section authorise the making of rules to regulate the conduct, behaviour or action of every such member, before he becomes a member of the assembly? I think not.”

5. He submitted that the definition of ‘Procession’ incorporated in the said Order and in particular in sub-clause (f) of clause (2) of the said Order which is so wide that even if more than twenty five school children are crossing a public street, it will amount to a ‘procession’ requiring a licence and if a licen