2012 Supreme(SC) 164

2012 (2) Supreme 36
SUPREME COURT OF INDIA
Swatanter Kumar & Dr. Dr. B.S. Chauhan, JJ .
In Re : Ramlila Maidan Incident Dt. 4/5.06.2011 — Appellant
versus
Home Secretary, Union Of India & Ors. — Respondents
Suo Motu Writ Petition (Crl.) No. 122 Of 2011
Decided On : 23-02-2012

VERY IMPORTANT POINTS
1.The provisions of Section 144 Cr.P.C. empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquility is not ultra vires the Constitution. 2. Provisions of Section 144 Cr.P.C. cannot be resorted to merely on imaginary or
likely possibility or likelihood or tendency of a threat. It has not to be a mere tentative perception of threat but a definite and substantiated one. 3.The executive power, to cause a restriction on a constitutional right within the scope of Section 144 Cr.P.C., has to be used sparingly and very cautiously.
4.Order under Section 144 Cr.P.C. affects the right vested in a person and it is not unreasonable to expect the authorities to grant adequate time to implement such orders, wherever the circumstances so permit. Enforcement of the order in undue haste may sometimes cause a greater damage than the good that it expected to achieve. 5.Wherever the State proposes to impose a restriction on the exercise of the fundamental rights, such restriction has to be reasonable and free from arbitrariness. 6. Once an order under Section 144 Cr.P.C. is passed, it is expected of all concerned to implement said order unless it has been rescinded or modified by a forum of competent jurisdiction. Important Points-1. Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide.2. The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind.3.There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint.4. Law itself has to be reasonable and furthermore, the action under that law has to be in accordance with the law so established. Non-observance of either of this can vitiate the action, but if the former is invalid, the latter cannot withstand.5. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.

Headnote:Code of Criminal Procedure, 1973 - Section 144 -Fast unto death by Baba Ramdev and his supporters at Ramlila Maidan - Imposition of an order under Section 144 Cr.P.C. – Refusal of Baba Ramdev and his supporters to comply with the orders -Forcible eviction and dispersion of persons present at the site by Police at midnight by use of teargas, water cannons and finally lathi charge - Several people including women received injuries- -Contention of amicus curiae that neither the withdrawal of permissions for Ramlila Maidan and Jantar Mantar nor the imposition of restriction by passing an order under Section 144 Cr.P.C. was for valid and good cause/reason-Held in the facts of the present case, State and Police could have avoided this tragic incident by exercising greater restraint, patience and resilience- The orders were passed by authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed- The decision to forcibly evict innocent public sleeping at the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent- The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts- It was an invasion of the liberties and exercise of fundamental freedoms- The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution- Except in cases of emergency or the situation unexceptionably demanding so, reasonable notice/time for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre- requisite(para234)

       Police permission for holding of dharnas-Whether infringes fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution -Held It is neither correct nor judicially permissible to say that taking of police permission for holding of dharnas, processions and rallies is irrelevant or not required in Law- Requirement of associating police, which is an important organ of the State for ensuring implementation of the rule of law, while holding large scale meetings, dharnas and protests, would not infringe fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution- This would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3)- Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article 21 of the Constitution of India- The police authorities, should have a say in organizational matters relating to holding of dharnas, processions, agitations and rallies - However, such consent should be considered in a very objective manner by the police authorities to ensure exercise of the right to freedom of speech and expression, rather than use the power to frustrate or throttle the constitutional right (para234)

       Contributory Negligence-Indefinite Hunger strike by Baba Ramdev and his followers at Ramlila Maidan-Imposition of an order under Section 144 Cr.P.C. –Forcible eviction and dispersion of persons present at the site by Police at midnight by use of teargas, water cannons and finally lathi charge-Whether Baba Ramdev guilty of contributory negligence-Held Baba Ramdev was guilty of contributory negligence- The Trust and its representatives ought to have discharged their legal and moral duty and should have fully cooperated in the effective implementation of a lawful order passed by competitive authority under Section 144 Cr.P.C. - Due to the stature that Baba Ramdev enjoyed with his followers, it was expected of him to request gathering to disperse peacefully and leave the Ramlila Maidan- He ought not have insisted on continuing with his activity at the place of Occurrence- Respondent no.4 and all its representatives were bound by constitutional and fundamental duty to safeguard public property and to abjure violence- Thus, there was legal and moral duty cast upon the members of the Trust to request and persuade people to leave the Ramlila Maidan which could have obviously avoided the confrontation between the police and the members of the gathering at the Ramlila Maidan- For breach of legal and moral duty and for its contributory negligence, consequences of financial liability would also pass, though to a limited extent, upon respondent no.4- Trust as well- Hence direction given that in cases of death and grievous hurt, 25% of awarded compensation shall be paid by Trust. (para234)

       Code of Criminal Procedure, 1973 - Section 144 -Fast unto death by Baba Ramdev and his supporters at Ramlila Maidan - Forcible eviction and dispersion of persons present at the site by Police at midnight -Police Action if justified- Held that police authorities should take such actions properly and strictly in accordance with the Guidelines, Standing Orders and Rules applicable thereto- This was not a case where entire police force had acted in violation to Rules, Standing orders and had fallen stray in their uncontrolled zeal of forcibly evicting innocent public from the Ramlila Maidan- Evidence on record showed that some of police officers/personnel were very cooperative with the members of assembly and helped them to vacate the Ramlila Maidan while others were violent, inflicted cane injuries, threw bricks and even used tear-gas shells, causing fire on the stage and total commotion and confusion amongst the large gathering at the Ramlila Maidan- Therefore, these two classes of Police Force had to be treated Differently-Direction given for taking disciplinary action against all erring police officers/personnel who had indulged in brick-batting, had resorted to lathi charge and excessive use of tear gas shells upon the crowd, had exceeded their authority or had acted in a manner not permissible under prescribed procedures, rules or standing orders and their actions had an element of criminality(para234)

       Code of Criminal Procedure, 1973 - Section 144 -Fast unto death by Baba Ramdev and his supporters at Ramlila Maidan - Forcible eviction and dispersion of persons present at the site by Police at midnight by use of teargas, water cannons and finally lathi charge - Several people including women received injuries- Direction given that persons who died or were injured in this unfortunate incident should be awarded ad hoc compensation- Smt. Rajbala, who got spinal injury in the incident and subsequently died, would be entitled to the ad- hoc compensation of Rs.5 lacs while persons who suffered grievous injuries and were admitted to the hospital held entitled to compensation of Rs.50,000/- each and persons who suffered simple injuries and were taken to hospital but discharged after a short while held entitled to a compensation of Rs.25,000/- each.(para234)

       Code of Criminal Procedure, 1973 - Section 144 - Order passed under Section 144 Cr.P.C.-Whether is a reasonable restriction-Held An order passed under Section 144 Cr.P.C. is a restriction on enjoyment of fundamental rights- It has been held to be a reasonable restriction- Once an order is passed under Section 144 Cr.P.C. within the framework and in accordance with the requirements of the said Section, then it is a valid order which has to be respected by all concerned- Its enforcement is the natural consequence -Instantly officers of the Police had come to inform Baba Ramdev and/or the representatives of respondent No. 4 about the passing of said order, but they did not receive the requisite cooperation from that end- On the contrary, Baba Ramdev did not receive the order though obviously he had come to know about the said order(para230)

       Constitution of India,1950- Articles 19(1)(a), 19(1)(b)-Right to freedom of speech and expression and Right to assemble peacefully and without arms -Whether State has power to impose reasonable restrictions on said rights-Held Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a)- It also provides right to assemble peacefully and without arms to every citizen of country under Article 19(1)(b)- However, these rights are not free from any restrictions and are not absolute in their terms and application- Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen- Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in said clause- Similarly, Article 19(3) enables State to make any law imposing reasonable restrictions on exercise of right conferred, again in interest of factors stated therein(para6)

       Constitution of India,1950- Article 21 - Right to life and personal liberty- Article 21 is the foundation of constitutional scheme- It grants to every person right to life and personal liberty- This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law- The procedure established by law for deprivation of rights conferred by this Article must be fair, just and reasonable- The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that procedure and, consequently, the action

       taken thereunder.(para13)

       Constitution of India,1950-Fundamental Rights-Whether can be abridged or taken away-Held, No person can be divested of his fundamental rights- They are incapable of being taken away or abridged- All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them- The restriction can be imposed only by or under the authority of law- It cannot be imposed by exercise of executive power without any law to back it up- Each restriction must be reasonable-A restriction must be related to the purpose mentioned in Article 19(2)(para25)

       Fundamental Rights guaranteed under Constitution-Imposition of reasonable restrictions on–Test of reasonableness-For adjudging the reasonableness of a restriction, factors such as duration and extent of the restrictions, circumstances under which and the manner in which that imposition had been authorized, the nature of right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict- Restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review- It cannot be arbitrary or excessive- It must possess a direct and proximate nexus with the object sought to be achieved- Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution. (paras27,29)

       Code of Criminal Procedure, 1973 - Section 144 -Scope and ambit of-Legislature, under Section 144 Cr.P.C., has empowered District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this Section exists and immediate prevention and/or speedy remedy is desirable- By virtue of Section 144A Cr.P.C., District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, carrying of arms in any procession or the organizing or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of the public order- Section 144 Cr.P.C, therefore, empowers an executive authority, backed by these provisions, to impose reasonable restrictions vis-`-vis the fundamental rights- The provisions of Section 144 Cr.P.C. provide for a complete mechanism to be followed by Magistrate concerned and also specify the limitation of time till when such an order may remain in force (para36)

       Code of Criminal Procedure, 1973 - Section 144 -Provision of section 144 is attracted only in emergent situations-One of the important precept of exercise of power in terms of Section 144 Cr.P.C. is that right to hold meetings in public places is subject to control of the appropriate authority regarding time and place of meeting- Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace- Such orders constitute reasonable restriction upon the freedom of speech and expression- If the authority anticipates an imminent threat to public order or public tranquility, it would be free to pass desirable directions within parameters of reasonable restrictions on the freedom of an individual- However, it must be borne in mind that provisions of Section 144 Cr.P.C. are attracted only in emergent situations(para44)

       Code of Criminal Procedure, 1973 - Section 144 -Order under section 144 should be an order in writing- An order under Section 144 Cr.P.C. being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case- This is because , it is an order placing a restriction upon fundamental rights of a citizen andmay adversely affect the interests of the parties - Apart from that under the provisions of the Cr.P.C., such an order is revisable and is subject to judicial review- Hence held appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction(para45)

       Code of Criminal Procedure, 1973 - Section 144 -Essential Requirements of-An order under section 144 can be passed against an individual or persons residing in a particular place or area or even against the public in general- Such an order can remain in force, not in excess of two months- The Government has the power to revoke such an order and wherever any person moves Government for revoking such an order, State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 Cr.P.C. - Out of said requirements, requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance- The most onerous duty that is cast upon the empowered officer by legislature is that perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility(para47)

       Code of Criminal Procedure, 1973 - Section 144 -An order passed under Section 144 Cr.P.C.-Scope of Application and enforcement of -Once an order under Section 144 Cr.P.C. is passed, it is expected of all concerned to implement said order unless it has been rescinded or modified by a forum of competent jurisdiction- Its enforcement has legal consequence- One of such consequences would be dispersement of an unlawful assembly and, if necessitated, by using permissible force- An assembly which might have lawfully assembled would be termed as an `unlawful assembly' upon the passing and implementation of such a preventive order- The empowered officer is also vested with adequate powers to direct dispersement of such assembly- In this direction, he may even take the assistance of concerned officers and armed forces for purposes of dispersing such an assembly- An order under Section 144 Cr.P.C. would have an application to an `actual' unlawful assembly as well as a `potential' unlawful assembly- This is precisely the scope of application and enforcement of an order passed under Section 144 Cr.P.C.(para49)

       Code of Criminal Procedure, 1973 - Section 144 -An order passed under Section 144 Cr.P.C –Whether serves larger public interest –Held An order under Section 144 Cr.P.C., though primarily empowers the executive authorities to pass prohibitory orders vis-`-vis a particular facet, but is intended to serve larger public interest- Restricted dimensions of the provisions are to serve the larger interest, which at the relevant time, has an imminent threat of being disturbed- The order can be passed when immediate prevention or speedy remedy is desirable- The legislative intention to preserve public peace and tranquility without lapse of time, acting urgently, if warranted, giving thereby paramount importance

       to the social needs by even overriding temporarily, private rights, keeping in view the public interest, is patently inbuilt in the provisions under Section 144 Cr.P.C. (para157)

       Code of Criminal Procedure, 1973 - Section 144 -An order passed under Section 144 Cr.P.C –Whether . is an encroachment of the freedom granted under Articles 19(1)(a) and 19(1)(b) of the Constitution - Held an order passed in anticipation by the Magistrate empowered under Section 144 Cr.P.C. is not an encroachment of the freedom granted under Articles 19(1)(a) and 19(1)(b) of the Constitution and it is not regarded as an unreasonable restriction- It is an executive order, open to judicial review- In exercise of its executive power the executive authority, by a written order and upon giving material facts, may pass an order issuing a direction requiring a person to abstain from doing certain acts or take certain actions/orders with respect to certain properties in his possession, if the officer considers that such an order is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person- Entire basis of an action under this Section is the `urgency of the situation' and the power therein is intended to be availed for preventing `disorder, obstruction and annoyance', with a view to secure the public weal by maintaining public peace and tranquility(para156)

       Facts of the Case-

       A. On 4th June, 2011, Baba Ramdev's hunger strike began with the motto of `bhrashtachar mitao satyagraha. Baba Ramdev had been granted permission to hold satyagraha at Jantar Mantar, of course, with a very limited number of persons. Despite the assurance given by Acharya Virendra Vikram, the event was converted into an Anshan and the crowd at the Ramlila Maidan swelled to more than fifty thousand. No yoga training was held for the entire day. At about 1.00 p.m., Baba Ramdev decided to march to Jantar Mantar for holding a dharna along with the entire gathering. Keeping in view the fact that Jantar Mantar could not accommodate such a large crowd, the permission dated 24/26th May, 2011 granted for holding the dharna was withdrawn by the authorities.

       B. At about 11.30 p.m., a team of Police, led by the Joint Commissioner of Police, met Baba Ramdev and informed him that the permission to hold the camp had been withdrawn and that he would be detained. At about 12.30 a.m., a large number of CRPF, Delhi Police force and Rapid Action Force personnel, totaling approximately to 5000 reached the Ramlila Maidan. At this time, the protestors were peacefully sleeping. Thereafter, at about 1.10 a.m., the Police reached the dais/platform to take Baba Ramdev out, which action was resisted by his supporters. At 1.25 a.m., Baba Ramdev jumped into the crowd from the stage and disappeared amongst his supporters. He, thereafter, climbed on the shoulders of one of his supporters, exhorting women to form a barricade around him. A scuffle between the security forces and the supporters of Baba Ramdev took place and eight rounds of teargas shells were fired. By 2.10 a.m., almost all the supporters had been driven out of the Ramlila Maidan.

       C. It was the submission of learned amicus curiae that neither the withdrawal of permissions for Ramlila Maidan and Jantar Mantar nor the imposition of restriction by passing an order under Section 144 Cr.P.C. was for valid and good cause/reason. On the contrary, it was for political and mala fide reasons. The purpose was to somehow not permit the continuation of the peaceful agitation at any of these places and for that reason, there was undue force used by the Government. The entire exercise was violative of the rights of an individual. A mere change in the number of persons present and an apprehension of the Police could not be a reasonable ground for using teargas and lathi charge and thereby unduly disturbing the people who were sleeping peacefully upto 1.00 a.m. on the night of 4/5th June, 2011 at Ramlila Maidan.

       D. It was further submitted that the imposition of restriction, passing of the order under Section 144 and the force and brutality with which the persons present at the Ramlila Maidan were dispersed was nothing but a show of power of the State as opposed to a citizen's right. Even the test of `in terrorum' requires to act in a manner and use such force which is least invasive and is in due regard to the right to assemble and hold peaceful demonstration. The threat perception of the authorities was more of a created circumstance to achieve the ultimate goal of rendering the agitation and the anshan unsuccessful by colourable exercise of State power.

       Findings of the Court-

       A. The Court held that State and Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed. The decision to forcibly evict innocent public sleeping at the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an invasion of the liberties and exercise of fundamental freedoms. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution.

       B. The Court further held that it was neither correct nor judicially permissible to say that taking of police permission for holding of dharnas, processions and rallies was irrelevant or not required in Law. Requirement of associating police, which is an important organ of the State for ensuring implementation of the rule of law, while holding large scale meetings, dharnas and protests, would not infringe fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution. This would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article 21 of the Constitution of India.The police authorities, should have a say in organizational matters relating to holding of dharnas, processions, agitations and rallies. However, such consent should be considered in a very objective manner by the police authorities to ensure exercise of the right to freedom of speech and expression, rather than use the power to frustrate or throttle the constitutional right.

       C. All the persons who had gathered in the tent at the Ramlila Maidan were sleeping when the Police went there to serve the order passed under Section 144 Cr.P.C. upon the representatives of the Trust; the order itself having been passed at 11.30 p.m. on 4th June, 2011. The Court held that nothing prevented the authorities from making proper announcements peacefully requiring the persons gathered at the Ramlila Maidan to leave for their respective homes early in the morning and before the yoga camp could resume. Simultaneously, they could also have prohibited entry into the Ramlila Maidan, as the same was being controlled by the Police itself. No facts or circumstances had been stated which could explain as to why it was absolutely necessary for the Police to wake up the people from their sleep and force their eviction, in a manner in which it had been done at the late hours of night. It was quite possible and even desirable for the authorities concerned to grant a reasonable time for eviction from the ground and enforcement of the orders passed under Section 144 Cr.P.C.

       D. Except in cases of emergency or the situation unexceptionally demanding so, reasonable notice/time for execution of the order or compliance of the directions issued in the order itself or in furtherance thereto is the pre-requisite. Non-grant of reasonable time and undue haste on the part of Police authorities to enforce the orders under Section 144 Cr.P.C. instantaneously had resulted in the unfortunate incident of human irony which could have been avoided with little more patience and control. It was expected of the Police authorities to bastion the rights of the citizens of the country. However, undue haste on the part of the Police created angst and disarray amongst the gathering at the Ramlila Maidan, which finally resulted in this sad cataclysm.

       E. The Court held Baba Ramdev was guilty of contributory negligence. The Trust and its representatives ought to have discharged their legal and moral duty and should have fully cooperated in the effective implementation of a lawful order passed by competitive authority under Section 144 Cr.P.C. Due to the stature that Baba Ramdev enjoyed with his followers, it was expected of him to request gathering to disperse peacefully and leave the Ramlila Maidan. He ought not have insisted on continuing with his activity at the place of Occurrence. Respondent no.4 and all its representatives were bound by constitutional and fundamental duty to safeguard public property and to abjure violence. Thus, there was legal and moral duty cast upon the members of the Trust to request and persuade people to leave the Ramlila Maidan which could have obviously avoided the confrontation between the police and the members of the gathering at the Ramlila Maidan. For breach of legal and moral duty and for its contributory negligence, consequences of financial liability would also pass, though to a limited extent, upon respondent no.4- Trust as well. Hence direction was given that in cases of death and grievous hurt, 25% of awarded compensation shall be paid by Trust.

       F. This was not a case where entire police force had acted in violation to Rules, Standing orders and had fallen stray in their uncontrolled zeal of forcibly evicting innocent public from the Ramlila Maidan. Evidence on record showed that some of police officers/personnel were very cooperative with the members of assembly and helped them to vacate the Ramlila Maidan while others were violent, inflicted cane injuries, threw bricks and even used tear-gas shells, causing fire on the stage and total commotion and confusion amongst the large gathering at the Ramlila Maidan. Therefore, these two classes of Police Force had to be treated Differently. Direction was given for taking disciplinary action against all erring police officers/personnel who had indulged in brick-batting, had resorted to lathi charge and excessive use of tear gas shells upon the crowd, had exceeded their authority or had acted in a manner not permissible under prescribed procedures, rules or standing orders and their actions had an element of criminality.

       G. Direction was given that persons who died or were injured in this unfortunate incident should be awarded ad hoc compensation. Smt. Rajbala, who got spinal injury in the incident and subsequently died, would be entitled to the ad- hoc compensation of Rs.5 lacs while persons who suffered grievous injuries and were admitted to the hospital held entitled to compensation of Rs.50,000/- each and persons who suffered simple injuries and were taken to hospital but discharged after a short while held entitled to a compensation of Rs.25,000/- each.