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2024 Supreme(Online)(CAL) 4392
IN THE HIGH COURT AT CALCUTTA
Ravi Krishan Kapur, J.
Joint Platform of Doctors & Ors. – Appellant
Versus
State of West Bengal & Ors. – Respondent
W.P.A. 26117 of 2024
For the petitioners: Mr. Bikash Ranjan Bhattacharyya, Sr. Adv., Mr. Samim Ahammed, Mr. Tapas Maity, Mr. Siddhartha Sankar Mondal, Mr. Satwick Majumdar, Mr. Saptarshi Banerjee, Mr. Rajit Lal Maitra, Mr. Arka Maiti, Ms. Ambiya Khatoon, Mr. Saloni Bhattacharjee, Mr. Nazimuddin Siddique
For the State : Mr. Kishore Dutta, Ld. A. G., Mr. Amitesh Banerjee, Sr. Adv., Mr. Debangshu Dinda, Adv.
The court affirmed that the right to protest is fundamental and any restrictions must be reasonable, proportionate, and justified to avoid arbitrariness.
Headnote:
Bharitiya Nagarik Suraksha Sanhita, 2023 - Section 163(1)(3) - Protest - Assembly Rights -The court found the prohibition on assembly unjustified, emphasizing the fundamental rights to freedom of expression and peaceful assembly under the Constitution, and ruled against arbitrary state restrictions.
Fact of the Case:
The petitioners challenged a police order prohibiting their assembly on the same day as a state-organized event, citing violations of their constitutional rights following a tragic incident involving a medical trainee.
Finding of the Court:
The court ruled that the state's order was arbitrary and disproportionate, infringing on the petitioners' rights to assemble and express dissent, and emphasized the necessity of maintaining law and order without excessive restrictions.
Issues: Whether the police order prohibiting the petitioners' assembly violated their constitutional rights to freedom of expression and peaceful assembly.
Ratio Decidendi: The court held that while the state has powers to maintain order, such powers must not infringe upon fundamental rights without justifiable reasons, and the order was excessively broad and arbitrary.
Final Decision: The writ petition was allowed, permitting the petitioners to hold the 'Droher Carnival' with necessary security arrangements.
ORDER
1. The grievance of the petitioners is directed against an order dated 14 October, 2024 issued by the Commissioner of Police, Kolkata under section 163 (1) and (3) of the Bharitiya Nagarik Suraksha Sanhita (BNSS), 2023.
2. By the impugned order, any unlawful assembly of five or more persons doing any act which is likely to cause any breach of peace and disturbance of public tranquility within the area in the town of Kolkata has been prohibited. The impugned order has been purportedly passed for preventing danger, obstruction or inconvenience to the public in connection with the “Immersion Carnival” being conducted by the State of West Bengal.
3. Briefly, the petitioners represent an umbrella association comprising of health service doctors and health service associates of West Bengal. The petitioner no.2 is a member of petitioner no.1 association and a practising doctor. The petitioner no.3 is a citizen of India.
4. Significantly, petitioners have been espousing a gruesome and spine-chilling incident pertaining to the alleged rape and murder of an on-duty post graduate trainee doctor at the R. G. Kar Medical College and Hospital on 9 August, 2024.
5. The crux of the grievance of the petitioners is directed against the refusal of the State respondents to permit the petitioners to conduct a “Droher Carnival” – Doctors and Citizens Assembly on 15 October, 2024.
6. By a communication dated 11 October, 2024, the petitioners had duly written to the respondent authorities seeking permission to conduct the above event on 15 October, 2024 at 4 P.M. at Rani Rashmoni Road, Dharmatolla, Kolkata. By a reply dated 13 October, 2024, the respondent no.3 being the Commissioner of Police had rejected the above request primarily on the ground that it coincided with a Pujo Carnival being organized by the State Government at Red Road, Kolkata. It was also alleged that being in close vicinity any demonstration would hamper safety and security of the concerned participants and visitors at the said Pujo Carnival. Subsequently, on 14 October 2024, the respondent no.3 issued the impugned order prohibiting any kind of assembly for a period of one day, i.e. on 15 October, 2024.
7. On behalf of the petitioners, it is contended that refusal to grant a No Objection for the purposes of conducting the above Droher Festival as well as the issuance of the impugned order is in violation of the fundamental rights of the petitioners guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution of India. The sweeping restrictions imposed on peaceful assembly and the freedom of expression as contained in the impugned order is unjustified, unwarranted and without any authority of law. In any event, a blanket ban on such a nature is disproportionate and cannot be necessary for maintaining law and order.
8. On behalf of the State respondents, it is submitted that there is no reason at all as to why the petitioners should want to hold the “Droher Carnival” on 15 October, 2024, i.e. the very same day as to when the State is to conduct an “Immersion Carnival”. The choice of venue by the petitioners which is in close proximity to the venue of the “Immersion Carnival” is with ulterior motive and there is every likelihood of breach of peace and tranquility. The impugned order is reasoned. In support of such contentions, the State respondents rely on the decisions of Mazdoor Kisan Shakti Sangathan vs. Union of India & Anr. (2018) 17 SCC 324 and Amit Sahni (Shaheen) Bagh, vs. Commissioner of Police and Ors. (2020) 10 SCC 439. It is also submitted by the State respondents that in view of the orders passed by the Hon’ble Supreme Court of India in Suo Motu Writ (Crl) No.2 of 2024, this Court should not pass any order in view of the fact that the larger issue is pending before the Hon’ble Supreme Court.
9. In Mazdoor Kisan Shakti Sangathan (Supra), it has been held as follows:
“54. The right to protest is, thus, recognized as a fundamental right under the Constitution. This right
