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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION SUO MOTU WRIT PETITION (CRL.) NO.

122 OF 2011

IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME SECRETAR ! UNION OF INDIA " ORS.

J UDGMENT S#$%$&%'( )*+$(! J. 1. At the very outset, I would prefer to examine the principles of

law that can render assistance in weighing the merit or otherwise of the contentious disputations asserted before the Court by the parties in the present suo moto petition. Besides restating the law governing Articles 19 1! a! and 19 1! b! of the Constitution of India and the parallel restrictions contemplated under Articles 19 "! and 19 #! respectively, I would also gauge the dimensions of legal provisions in relation to the exercise of $urisdiction by the

empowered officer in passing an order under %ection 1&& of the Code of Criminal 'rocedure, 19(# for short )Cr.'.C.*!. ". It appears $ustified here to mention the +irst Amendment to

the ,nited %tates ,%! Constitution, a bellwether in the pursuit of expanding the hori-on of civil liberties. .his Amendment provides for the freedom of speech of press in the American Bill of /ights. .his Amendment added new dimensions to this right to freedom and purportedly, without any limitations. .he expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction. It reads as under 0 1Congress shall ma2e no law respecting an establishment of religion, or prohibiting the free exercise thereof3 or abridging the freedom of speech, or of the press3 or the right of the people peaceably to assemble, and to petition the 4overnment for a redress of grievances.5 #. .he effect of use of these expressions, in particular, was that

the freedom of speech of press was considered absolute and free from any restrictions whatsoever. %hortly thereafter, as a result of widening of the power of $udicial review, the ,% %upreme Court preferred to test each case on the touchstone of the rule of )clear6 2

and6present6danger*. 7owever, application of this rule was unable to withstand the pace of development of law and, therefore, through its $udicial pronouncements, the ,% %upreme Court applied the doctrine of )balancing of interests*. .he cases relating to speech did not simply involve the rights of the offending spea2er but typically they presented a clash of several rights or a conflict between individual rights and necessary functions of the 4overnment. 8ustice +ran2furter often applied the above6mentioned Balancing +ormula and concluded that 1while the court has emphasi-ed the importance of )free speech*, it has recogni-ed that free speech is not in itself a touchstone. .he Constitution is not unmindful of other important interests, such as public order, if free expression of ideas is not found to be the overbalancing considerations.5 &. .he )balancing of interests* approach is basically derived from

/oscoe 'ound*s theories of social engineering. 'ound had insisted that his structure of public, social and individual interests are all, in fact, individual interests loo2ed at from different points of view for the purpose of clarity. .herefore, in order to ma2e the system wor2 properly, it is essential that when interests are balanced, all 3

claims must be translated into the same level and carefully labelled. .hus, a social interest may not be balanced against .he

individual interest, but only against another social interest.

author points out that throughout the heyday of the clear6and6 present6danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. 9 Freedom of Speech: The Supreme Court and Judicial Review, by :artin %hapiro, 19;;< =. >ven in the ,nited %tates there is a recurring debate in

modern +irst Amendment 8urisprudence as to whether +irst Amendment rights are )absolute* in the sense that the 4overnment may not abridge them at all or whether the +irst Amendment re?uires the )balancing of competing interests* in the sense that free speech values and the 4overnment*s competing $ustification must be isolated and weighted in each case. Although the +irst

Amendment to the American Constitution provides that Congress shall ma2e no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional 4

4overnment to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some

circumstances against incitements to commit unlawful acts. +reedom of speech, thus, does not comprehend the right to spea2 on any sub$ect at any time. In the case of Schenck v. United States 9;# @ ed 11(#<, the Court held 0 1.he character of every act depends upon the circumstances in which it is done. .he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an in$unction against uttering words that have all the effect of forceA.the ?uestion in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.5 9Constitution of India, "nd >dn.!, Bolume 1 by Cr. @.:. %inghvi< ;. In contradistinction to the above approach of the ,% %upreme

Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19 1! a!. It also provides the right to assemble peacefully and without arms to every citi-en of the country under Article 19 1! b!. 7owever, these rights are not 5

free from any restrictions and are not absolute in their terms and application. Articles 19 "! and 19 #!, respectively, control the

freedoms available to a citi-en. Article 19 "! empowers the %tate to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. %imilarly, Article 19 #! enables the %tate to ma2e any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein.

(.

In face of this constitutional mandate, the American doctrine

adumbrated in Schencks case supra! cannot be imported and applied. ,nder our Constitution, this right is not an absolute right but is sub$ect to the above6noticed restrictions. .hus, the position under our Constitution is different. D. In )Constitutional Law of India* by 7.:. %eervai +ourth >dn.!,

Bol.1, the author has noticed that the provisions of the two Constitutions as to freedom of speech and expression are essentially different. .he difference being accentuated by the

provisions of the Indian Constitution for preventive detention which 6

have no counterpart in the ,% Constitution. /easonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the ?uestion of reasonableness is a ?uestion primarily for the Court to decide. E a!ulal "arate v. State of #aharashtra 9 19;1! # %C/ &"#<F. 9. .he fundamental right enshrined in the Constitution itself

being made sub$ect to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional ob$ect in mind. +or instance, the right to freedom of speech and expression is not violated by a law which re?uires that name of the printer and publisher and the place of printing and publication should be printed legibly on every boo2 or paper. 1G. .hus, there is a mar2ed distinction in the language of law, its

possible interpretation and application under the Indian and the ,% laws. It is significant to note that the freedom of speech is the bulwar2 of democratic 4overnment. .his freedom is essential for proper functioning of the democratic process. .he freedom of 7

speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. +reedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a 1basic human right5, 1a natural right5 and the li2e. Hith the development of law in India, the right to freedom of speech and expression has ta2en within its ambit the right to receive information as well as the right of press. 11. In order to effectively consider the rival contentions raised and

in the bac2drop of the factual matrix, it will be of some concern for this Court to examine the constitutional scheme and the historical bac2ground of the relevant Articles relating to the right to freedom of speech and expression in India. .he framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. .his gave to the citi-ens of this country a very valuable right, which is the essence of any democratic system. .here could be no 8

expression without these rights. @iberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. 'laced as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. /ef. "ream!le$ The Spirit and ack!one of the

Constitution of India$ !% Justice R&C& Lahoti !. .hese valuable fundamental rights are sub$ect to restrictions contemplated under Articles 19 "! and 19 #!, respectively. Article 19 1! was sub$ected to $ust one amendment, by the Constitution && th Amendment! Act, 19(9, vide which Article 19 1! f! was repealed. %ince the

'arliament felt the need of amending Article 19 "! of the Constitution, it was substituted by the Constitution +irst

Amendment! Act, 19=1 with retrospective effect.

Article 19 "! was

sub$ected to another amendment and vide the Constitution %ixteenth Amendment! Act, 19;#, the expression 1sovereignty and integrity of India5 was added. .he pre6amendment Article had 9

empowered the %tate to ma2e laws imposing reasonable restrictions in exercise of the rights conferred under Article 19 1! a! in the interest of the security of the %tate, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. .o introduce a

more definite dimension with regard to the sovereignty and integrity of India, this Amendment was made. It provided the right

spectrum in relation to which the %tate could enact a law to place reasonable restrictions upon the freedom of speech and expression. 1". .his shows that the %tate has a duty to protect itself against

certain unlawful actions and, therefore, may enact laws which would ensure such protection. .he right that springs from Article .here cannot be any

19 1! a! is not absolute and unchec2ed.

liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. 7ad there been no

restraint, the rights and freedoms may become synonymous with anarchy and disorder. E/ef.0 State of 'est ose 9AI/ 19=& %C 9"<F. en(al )s& Su!odh *opal

10

1#.

I consider it appropriate to examine the term )liberty*, which is

sub$ect to reasonable restrictions, with reference to the other constitutional rights. Article "1 is the foundation of the

constitutional scheme. and personal liberty.

It grants to every person the right to life .his 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. .he procedure

established by law for deprivation of rights conferred by this Article must be fair, $ust and reasonable. .he rules of $ustice and fair

play re?uire that %tate action should neither be un$ust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that procedure and, conse?uently, the action ta2en thereunder. 1&. Any action ta2en by a public authority which is entrusted with

the statutory power has, therefore, to be tested by the application of two standards 6 first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If

any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established 11

under which that action is ta2en is itself unreasonable. .he concept of )procedure established by law* changed its character after the $udgment of this Court in the case of #aneka *andhi v. U+I 9AI/ 19(D %C =9(<, where this Court too2 the view as under 0 1.he principle of reasonableness, which legally as well as philosophically is an essential element of e?uality or non arbitrariness pervades Article 1& li2e a brooding omnipresence and the procedure contemplated by Article "1 must answer the test of reasonableness in order to be right and $ust and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the re?uirement of Article "1 would not be satisfied.5 .his was also noted in the case of #adhav ,a%awadanrao ,oskot v& State of #aharashtra -./012 3 SCC 455 where this Court too2 the following view0 1'rocedure established by law are words of deep meaning for all lovers of liberty and $udicial sentinels.5 1=. Hhat emerges from the above principles, which has also been

followed in a catena of $udgments of this Court, is that the law itself has to be reasonable and furthermore, the action under that law 12

has to be in accordance with the law so established.

Ion6

observance of either of this can vitiate the action, but if the former is invalid, the latter cannot withstand. 1;. Article 1# is a protective provision and an index of the

importance and preference that the framers of the Constitution gave to 'art III. In terms of Article 1# 1!, the laws in force before

the commencement of the Constitution, in so far as they were inconsistent with the provisions of that 'art were, to the extent of such inconsistency, void. ma2ing laws. It also fettered the right of the %tate in

.he %tate is not to ma2e any law which ta2es away

or abridges the rights conferred by this 'art and if such law is made then to the extent of conflict, it would be void. In other words,

except for the limitations stated in the Articles contained in 'art III itself and Article 1# &! of the Constitution, this Article is the reservoir of the fundamental protections available to any

personJciti-en. 1(. Hhile these are the guaranteed fundamental rights, Article #D,

under the Cirective 'rinciples of %tate 'olicy contained in 'art IB of 13

the Constitution, places a constitutional obligation upon the %tate to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which $ustice 6 social, economic and political 6 shall inform all the institutions of the national life. Article #( ma2es the Cirective 'rinciples of %tate 'olicy fundamental in governance of the country and provides that it shall be the duty of the %tate to apply these principles in ma2ing laws.

1D.

Hith the development of law, even certain matters covered

under this 'art relating to Cirective 'rinciples have been uplifted to the status of fundamental rights, for instance, the right to education. .hough this right forms part of the Cirective 'rinciples of %tate 'olicy, compulsory and primary education has been treated as a part of Article "1 of the Constitution of India by the courts, which conse?uently led to the enactment of the /ight of Children to +ree and Compulsory >ducation Act, "G1G. 19. Article =1A deals with the fundamental duties of the citi-ens.

It, inter alia, postulates that it shall be the duty of every citi-en of 14

India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to ab$ure violence. "G. .hus, a common thread runs through 'arts III, IB and IBA of

the Constitution of India. Kne 'art enumerates the fundamental rights, the second declares the fundamental principles of

governance and the third lays down the fundamental duties of the citi-ens. be Hhile interpreting any of these provisions, it shall always to examine the scope and impact of such

advisable

interpretation on all the three constitutional aspects emerging from these parts. It is necessary to be clear about the meaning of the word 1fundamental5 as used in the expression 1fundamental in the governance of the %tate5 to describe the directive principles which have not legally been made enforceable. .hus, the word

1fundamental5 has been used in two different senses under our Constitution. .he essential character of the fundamental rights is

secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pretendo void. .he word 1fundamental5 in Article #( also means 15

basic or essential, but it is used in the normative sense of setting, before the %tate, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles has attained greater significance through $udicial pronouncements. "1. As difficult as it is to anticipate the right to any freedom or

liberty without any reasonable restriction, e?ually difficult it is to imagine the existence of a right not coupled with a duty. .he duty may be a direct or indirect conse?uence of a fair assertion of the right. 'art III of the Constitution of India although confers rights, still duties and restrictions are inherent thereunder. .hese rights are basic in nature and are recogni-ed and guaranteed as natural rights, inherent in the status of a citi-en of a free country, but are not absolute in nature and uncontrolled in operation. >ach one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the 'arliament or the %tate @egislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause 1! of Article 19 of the 16

Constitution, on a prima facie case of such violation being made out, the onus shifts upon the %tate to show that the legislation comes within the permissible restrictions set out in clauses "! to ;! of Article 19 and that the particular restriction is reasonable. It is for the %tate to place on record appropriate material $ustifying the restriction and its reasonability. /easonability of restriction is a matter which s?uarely falls within the power of $udicial review of the Courts. %uch limitations, therefore, indicate two purposes3 one that the freedom is not absolute and is sub$ect to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. .he legislature has to exercise these powers within the ambit of Article 19 "! of the Constitution.

"".

+urther, there is a direct and not merely implied responsibility

upon the 4overnment to function openly and in public interest. .he /ight to Information itself emerges from the right to freedom of speech and expression. ,nli2e an individual, the %tate owns a It has to maintain and ensure 17

multi6dimensional responsibility.

security of the %tate as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citi-en or a group of citi-ens may assert. .he %tate also has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise. In the case of S& Ran(ara6an v. Ja(6ivan Ram 9 19D9! " %CC =(&<, this Court noticed as under 0 145. .he problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19 "! may briefly be touched upon here. .here does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of e?ual weight. Kur commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. .he anticipated danger should not be remote, con$ectural or far6fetched. It should have proximate and direct nexus with the expression. .he expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably loc2ed up with the action 18

contemplated li2e the e?uivalent of a 1spar2 in a power 2eg5.5 "#. Hhere the Court applies the test of )proximate and direct

nexus with the expression*, the Court also has to 2eep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. .he Court would also ta2e into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest. "&. Iow, I would examine the various tests that have been applied

over the period of time to examine the validity andJor reasonability of the restrictions imposed upon the rights.

U,-& %.' R/0.%1 E&1.(/&'2 /& %.' C-&1%/%*%/-& "=. Io person can be divested of his fundamental rights. .hey are

incapable of being ta2en away or abridged. All that the %tate can do, by exercise of its legislative power, is to regulate these rights by

19

imposition of reasonable restrictions on them. ,pon an analysis of the law, the following tests emerge06 a! .he 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 bac2 it up. b! >ach restriction must be reasonable. c! A restriction must be related to the purpose mentioned in Article 19 "!. ";. .he ?uestions before the Court, thus, are whether the

restriction imposed was reasonable and whether the purported purpose of the same s?uarely fell within the relevant clauses discussed above. .he legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to $udicial review. .he $udgments of this Court have been consistent

in ta2ing the view that it is difficult to define or explain the word 1reasonable5 with any precision. It will always be dependent on

the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible 20

nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. .his Court in

the case of State of #adras v& )&*& Row 9AI/ 19=" %C 19;< held 06 1It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases.5 "(. +or ad$udging the reasonableness of a restriction, factors such

as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authori-ed, the nature of the 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 $udicial verdict. 9%ee0 Chintamanrao 7 8nr& v& State of #adh%a "radesh AI/ 19=1 %C 11D!<. "D. .he courts must bear a clear distinction in mind with regard

to )restriction* and )prohibition*. .hey are expressions which cannot 21

be used inter6changeably as they have different connotations and conse?uences in law. Hherever a )prohibition* is imposed, besides satisfying all the tests of a reasonable )restriction*, it must also satisfy the re?uirement that any lesser alternative would be inade?uate. +urthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a ?uestion of fact which has to be determined with regard to facts and circumstances of each case. .his Court in the case of State of *u6arat v& #ir9apur #oti :ureshi :assa! Jamat and +thers 9 "GG=! D %CC =#&< held as under06 1(=. .hree propositions are well settled0 i! LrestrictionL includes cases of LprohibitionL3 ii! the standard for $udging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inade?uate3 and iii! whether a restriction in effect amounts to a total prohibition is a ?uestion of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that rightA..5 "9. .he obvious result of the above discussion is that a restriction

imposed in any form has to be reasonable and to that extent, it 22

must stand the scrutiny of $udicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the ob$ect sought to be achieved. Hhenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framewor2 of the prescribed law, as subscribed by Article 19 "! of the Constitution. #G. As already noticed, rights, restrictions and duties co6exist.

As, on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, there, on the other, it is also necessary to place reins on this freedom for the maintenance of social order. wide ambit. .he term )social order* has a very

It includes )law and order*, )public order* as well as .he security of the %tate is the core

)the security of the %tate*.

sub$ect and public order as well as law and order follow the same. In the case of Romesh Thappar v& State of #adras 919=G %C/ =9&<, this Court too2 the view that local breaches of public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. .his led to the Constitutional +irst Amendment!

Act, 19=1 and conse?uently, this Court in the case of ;r& Ram 23

#anohar Lohia v& State of

ihar 9AI/ 19;; %C (&G< stated that an

activity which affects )law and order* may not necessarily affect )public order* and an activity which might be pre$udicial to )public order* may not necessarily affect )security of the %tate*. Absence of )public order* is an aggravated form of disturbance of public peace which affects the general current of public life. Any act which

merely affects the security of others may not constitute a breach of )public order*. #1. .he expression )in the interest of* has given a wide amplitude

to the permissible law which can be enacted to impose reasonable restrictions on the rights guaranteed by Article 19 1! of the Constitution. #". .here has to be a balance and proportionality between the

right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate

emphasis is placed upon the right of a citi-en without considering the significance of the duty. .he true source of right is duty.

Hhen the courts are called upon to examine the reasonableness of 24

a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article =1A are of relevant consideration. Article =1A re?uires an individual to abide by the law, to safeguard public property and to ab$ure violence. It also re?uires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. 'art IB of

the Constitution relates to the Cirective 'rinciples of the %tate 'olicy. Article #D was introduced in the Constitution as an

obligation upon the %tate to maintain social order for promotion of welfare of the people. By the Constitution +orty6%econd

Amendment! Act, 19(;, Article =1A was added to comprehensively state the fundamental duties of the citi-ens to compliment the obligations of the %tate. .hus, all these duties are of constitutional significance. It is obvious that the 'arliament reali-ed the need for

inserting the fundamental duties as a part of the Indian Constitution and re?uired every citi-en of India to adhere to those duties. .hus, it will be difficult for any Court to exclude from its any of the above6mentioned Articles of the

consideration

Constitution while examining the validity or otherwise of any 25

restriction relating to the right to freedom of speech and expression available to a citi-en under Article 19 1! a! of the Constitution. .he restriction placed on a fundamental right would have to be examined with reference to the concept of fundamental duties and non6interference with liberty of others. .herefore, a restriction on the right to assemble and raise protest has also to be examined on similar parameters and values. In other words, when you assert your right, you must respect the freedom of others. Besides

imposition of a restriction by the %tate, the non6interference with liberties of others is an essential condition for assertion of the right to freedom of speech and expression. In the case of ;r& ;&C&

Sa<ena v& ,on!le the Chief Justice of India 9 199;! = %CC "1;<, this Court held0 1#1. If maintenance of democracy is the foundation for free speech, society e?ually is entitled to regulate freedom of speech or expression by democratic action. .he reason is obvious, vi-., that society accepts free speech and expression and also puts limits on the right of the ma$ority. Interest of the people involved in the acts of expression should be loo2ed at not only from the perspective of the spea2er but also the place at which he spea2s, the scenario, the audience, the 26

reaction of the publication, the purpose of the speech and the place and the forum in which the citi-en exercises his freedom of speech and expression. .he %tate has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. .here is a correlative duty not to interfere with the liberty of others. >ach is entitled to dignity of person and of reputation. Iobody has a right to denigrate othersL right to person or reputation. .herefore, freedom of speech and expression is tolerated so long as it is not malicious or libellous, so that all attempts to foster and ensure orderly and peaceful public discussion or public good should result from free speech in the mar2et6place. If such speech or expression was untrue and so rec2less as to its truth, the spea2er or the author does not get protection of the constitutional right.5 ##. >very right has a corresponding duty. of India although confers 'art III of the and duties,

Constitution

rights

restrictions are inherent thereunder. /easonable regulations have been found to be contained in the provisions of 'art III of the Constitution of India, apart from clauses "! to &! and ;! of Article 19 of the Constitution E%ee Union of India v& =aveen Jindal and 8nr& 9 "GG&! " %CC =1G<F.

27

#&.

As I have already discussed, the restriction must be provided

by law in a manner somewhat distinct to the term )due process of law* as contained in Article "1 of the Constitution. If the orders

passed by the >xecutive are bac2ed by a valid and effective law, the restriction imposed thereby is li2ely to withstand the test of reasonableness, which re?uires it to be free of arbitrariness, to have a direct nexus to the ob$ect and to be proportionate to the right restricted as well as the re?uirement of the society, for example, an order passed under %ection 1&& Cr.'.C. .his order is passed on

the strength of a valid law enacted by the 'arliament. .he order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. .here is a complete channel provided for examining the correctness or otherwise of such an order passed under %ection 1&& Cr.'.C. and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framewor2 of reasonable restriction. #=. .he distinction between )public order* and )law and order* is a A restriction imposed with )law 28

fine one, but nevertheless clear.

and order* in mind would be least intruding into the guaranteed freedom while )public order* may ?ualify for a greater degree of restriction since public order is a matter of even greater social concern. Kut of all expressions used in this regard, as discussed in the earlier part of this $udgment, )security of the state* is the paramount and the %tate can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of )public order* and )law and order*. 7owever stringent may these restrictions be, they must

stand the test of )reasonability*. .he %tate would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the %tate but is also within the framewor2 of Articles 19 "! and 19 #! of the Constitution. #;. It is 2eeping this distinction in mind, the @egislature, under

%ection 1&& Cr.'.C., has empowered the Cistrict :agistrate, %ub6 Civisional :agistrate or any other >xecutive :agistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to ta2e action as directed, where sufficient ground for proceeding under this %ection exists and immediate 29

prevention andJor speedy remedy is desirable. By virtue of %ection 1&&A Cr.'.C., which itself was introduced by Act "= of "GG=, the Cistrict :agistrate has been empowered to pass an order prohibiting, in any area within the local limits of his $urisdiction, the carrying of arms in any procession or the organi-ing 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. %ection 1&& Cr.'.C, therefore, empowers an executive authority, bac2ed by these provisions, to impose reasonable restrictions vis>?>vis the fundamental rights. .he provisions of %ection 1&& Cr.'.C. provide for a complete mechanism to be followed by the :agistrate concerned and also specify the limitation of time till when such an order may remain in force. It also prescribes the circumstances

that are re?uired to be ta2en into consideration by the said authority while passing an order under %ection 1&& Cr.'.C. #(. In a!u Lal "arate supra! where this Court was concerned

with the contention raised on behalf of the union of wor2ers that the order passed in anticipation by the :agistrate under %ection 30

1&& Cr.'.C. was an encroachment on their rights under Articles 19 1! a! and 19 1! b!, it was held that the provisions of the %ection, which commit the power in this regard to a :agistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. Hhile examining the law in force in the ,nited

%tates, the Court further held that an anticipatory action of the 2ind permissible under %ection 1&& Cr.'.C. is not impermissible within the ambit of clauses "! and #! of Article 19. 'ublic order has to be maintained at all times, particularly prior to any event and, therefore, it is competent for the legislature to pass a law permitting the appropriate authority to ta2e anticipatory action or to place anticipatory restrictions upon particular 2ind of acts in an emergency for the purpose of maintaining public order. #D. In the case of #adhu Lima%e v& Su! ;ivisional #a(istrate and

+rs& 9AI/ 19(1 %C "&D1<, a Constitution Bench of this Court too2 the following view0 1"&. .he procedure to be followed is next stated. ,nder %ub6section "! if time does not permit or the order cannot be served, it can be made ex parte. ,nder %ub6section #! the 31

order may be directed to a particular individual or to the public generally when fre?uenting or visiting a particular place. ,nder sub6section &! the :agistrate may either suo motu or on an application by an aggrieved person, rescind or alter the order whether his own or by a :agistrate subordinate to him or made by his predecessor in Kffice. ,nder %ub6section =! where the magistrate is moved by a person aggrieved he must hear him so that he may show cause against the order and if the :agistrate re$ects wholly or in part the application, he must record his reasons in writing. .his sub6section is mandatory. An order by the :agistrate does not remain in force after two months from the ma2ing thereof but the %tate 4overnment may, however, extend the period by a notification in the 4a-ette but, only in cases of danger to human life, health or safety or where there is a li2elihood of a riot or an affray. But the second portion of the sub6section was declared violative of Article 19 in %tate of Bihar v. M.M. :isra 919;9< %.C./. ##(. It may be pointed out here that disobedience of an order lawfully promulgated is made an offence by %ection 1DD of the Indian 'enal Code, if such disobedience causes obstruction, annoyance or in$ury to persons lawfully employed. It is punishable with simple imprisonment for one month or fine of /s. "GG or both. "=. .he gist of action under %ection 1&& is the urgency of the situation, its efficacy in the li2elihood of being able to prevent some harmful occurrences. As it is possible to act 32

absolutely and even ex parte it is obvious that the emergency must be sudden and the conse?uences sufficiently grave. Hithout it the exercise of power would have no $ustification. It is not an ordinary power flowing from administration but a power used in a $udicial manner and which can stand further $udicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. .here is no general proposition that an order under %ection 1&&, Criminal 'rocedure Code cannot be passed without ta2ing evidence 0 see :st. 8agrupa Mumari v. Chotay Iarain %ingh 19#;! #( Cri.@.8. 9= 'at! which in our opinion is correct in laying down this proposition. .hese fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Cisturbances of public tran?uility, riots and affray lead to subversion of public order unless they are prevented in time. Iuisances dangerous to human life, health or safety have no doubt to be abated and prevented. He are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the 2ey6note of the power is to free society from menace of serious disturbances of a grave character. .he section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the interest of public order, or in the interest of the general public. He may say, however, that annoyance must assume 33

sufficiently grave proportions to bring the matter within interests of public order. ";. .he criticism, however, is that the section suffers from over broadness and the words of the section are wide enough to give an absolute power which may be exercised in an un$ustifiable case and then there would be no remedy except to as2 the :agistrate to cancel the order which he may not do. /evision against his determination to the 7igh Court may prove illusory because before the 7igh Court can intervene the mischief will be done. .herefore, it is submitted that an in?uiry should precede the ma2ing of the order. In other words, the burden should not be placed upon the person affected to clear his position. +urther the order may be so general as to affect not only a particular party but persons who are innocent, as for example when there is an order banning meetings, processions, playing of music etc. "(. .he effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. As was pointed out in a!ulal "arate case where two rival trade unions clashed and it was difficult to say whether a person belonged to one of the unions or to the general public, an order restricting the activities of the general public in the particular area was $ustified.

34

"D. AA general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the ris2s mentioned in the section. A general order is thus $ustified but if the action is too general the order may be ?uestioned by appropriate remedies for which there is ample provision in the law.5

#9.

In the case of ,imat Lal :& Shah v& Commissioner of "olice$

8hmeda!ad 7 8nr& 9 19(#! 1 %CC ""(<, again a Constitution Bench of this Court, while dealing with a situation where a person see2ing permission to hold a public meeting was denied the same on the ground that under another similar permission, certain elements had indulged in rioting and caused mischief to private and public properties, held /ule ( framed under the Bombay 'olice Act, 19=1 as being arbitrary and observed as under 0 1AAIt is not surprising that the Constitution ma2ers conferred a fundamental right on all citi-ens Lto assemble peaceably and without armsL. Hhile prior to the coming into force of the Constitution the right to assemble could have been abridged or ta2en away by law, now that cannot be done except by imposing reasonable restrictions within Article 19 #!. But it is urged that the right to assemble does not mean that that right can be exercised at any 35

and every place. .his Court held in /ailway Board v. Iarin$an %ingh 19;9! # %C/ =&D3 ==& 0 19;9!1 %CC =G" that there is no fundamental right for any one to hold meetings in government premises. It was observed0 ).he fact that the citi-ens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please*.5 &G. %ection 1&& Cr.'.C. is intended to serve public purpose and

protect public order. .his power vested in the executive is to be invo2ed after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tran?uility or a riot or an affray. .hese

features must co6exist at a given point of time in order to enable the authority concerned to pass appropriate orders. .he expression )law and order* is a comprehensive expression which may include not merely )public order* but also matters such as )public peace*, )public 36

tran?uility* and )orderliness* in a locality or a local area and perhaps some other matters of public concern too. )'ublic order* is something distinct from order or orderliness in a local area. 'ublic order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. .his

concept came to be illustratively explained in the $udgment of this Court in the case of ;r& Ram #anohar Lohia supra! wherein it was held that when two drun2ards ?uarrel and fight, there is )disorder* but not )public disorder*. .hey can be dealt with under the powers to maintain )law and order* but cannot be detained on the ground that they were disturbing )public order*. 7owever, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of )law and order* but it raises the apprehension of public disorder. .he main distinction is that where it affects the community or public at large, it will be an issue relatable to )public order*. %ection 1&& Cr.'.C. empowers passing of such order in the interest of public order e?uitable to public safety and tran?uility. .he provisions of %ection 1&& Cr.'.C. empowering the authorities to pass orders to tend to or 37

to prevent the disturbances of public tran?uility is not ultra vires the Constitution& &1. In the case of State of :arnataka v& ;r& "raveen hai Tho(adia,

9 "GG&! & %CC ;D&<, this Court, while observing that each person, whatever be his religion, must get the assurance from the %tate that he has the protection of law freely to profess, practice and propagate his religion and the freedom of conscience, held more emphatically that the courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. .hey are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities within their special 2nowledge. &". .he scope of %ection 1&& Cr.'.C. enumerates the principles

and declares the situations where exercise of rights recogni-ed by law, by one or few, may conflict with other rights of the public or tend to endanger the public peace, tran?uility andJor harmony. .he orders passed under %ection 1&& Cr.'.C. are attempted to serve larger public interest and purpose. As already noticed, under 38

the provisions of the Cr.'.C. complete procedural mechanism is provided for examining the need and merits of an order passed under %ection 1&& Cr.'.C. If one reads the provisions of %ection 1&& Cr.'.C. along with other constitutional provisions and the $udicial pronouncements of this Court, it can undisputedly be stated that %ection 1&& Cr.'.C. is a power to be exercised by the specified authority to prevent disturbance of public order,

tran?uility and harmony by ta2ing immediate steps and when desirable, to ta2e such preventive measures. +urther, when there exists freedom of rights which are sub$ect to reasonable

restrictions, there are contemporaneous duties cast upon the citi-ens too. .he duty to maintain law and order lies on the

concerned authority and, thus, there is nothing unreasonable in ma2ing it the initial $udge of the emergency. All this is coupled

with a fundamental duty upon the citi-ens to obey such lawful orders as well as to extend their full cooperation in maintaining public order and tran?uility. &#. .he concept of orderly conduct leads to a balance for assertion

of a right to freedom. In the case of Feiner v& =ew @ork -./4.2 35A 39

U&S& 3.4, the %upreme Court of the ,nited %tates of America dealt with the matter where a person had been convicted for an offence of disorderly conduct for ma2ing derogatory remar2s concerning various persons including the 'resident, political dignitaries and other local political officials during his speech, despite warning by the 'olice officers to stop the said speech. .he Court, noticing the condition of the crowd as well as the refusal by the petitioner to obey the 'olice re?uests, found that the conduct of the convict was in violation of public peace and order and the authority did not exceed the bounds of proper state 'olice action, held as under0 1It is one thing to say that the 'olice cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the spea2er passes the bounds of arguments or persuasion and underta2es incitement to riot, they are powerless to prevent a breach of the peace. Ior in this case can we condemn the considered $udgment of three Iew Nor2 courts approving the means which the 'olice, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. .he findings of the state courts as to the existing situation and the imminence of greater disorder couples with petitioner*s deliberate defiance of the 'olice officers convince us that we should not reverse this conviction in the name of free speech.5 40

&&.

Another important precept of exercise of power in terms of

%ection 1&& Cr.'.C. is that the right to hold meetings in public places is sub$ect to control of the appropriate authority regarding the time and place of the meeting. Krders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace. %uch orders constitute reasonable restriction

upon the freedom of speech and expression. .his view has been followed consistently by this Court. .o put it with greater clarity, it can be stated that the content is not the only concern of the controlling authority but the time and place of the meeting is also well within its $urisdiction. If the authority anticipates an imminent threat to public order or public tran?uility, it would be free to pass desirable directions within the parameters of reasonable

restrictions on the freedom of an individual. 7owever, it must be borne in mind that the provisions of %ection 1&& Cr.'.C. are attracted only in emergent situations. .he emergent power is to be exercised for the purposes of maintaining public order. It was

stated by this Court in Romesh Thapar supra! that the Constitution 41

re?uires a line to be drawn in the field of public order and tran?uility, mar2ing off, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the %tate and the relatively minor breaches of peace of a purely local significance, treating for this purpose differences in degree as if they were different in 2ind. .he significance of factors such as security of %tate and

maintenance of public order is demonstrated by the mere fact that the framers of the Constitution provided these as distinct topics of legislation in >ntry III of the Concurrent @ist of %eventh %chedule to the Constitution. &=. :oreover, an order under %ection 1&& Cr.'.C. being an order

which has a direct conse?uence 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. .his would be the re?uirement of law for more than one reason. +irstly, it is an order placing a restriction upon the fundamental rights of a citi-en and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of 42

the Cr.'.C., such an order is revisable and is sub$ect to $udicial review. .herefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In the case of ;r& "raveen hai Tho(adia

supra!, this Court too2 the view that the Court, while dealing with such orders, does not act li2e an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without $urisdiction or with ulterior motive and on extraneous consideration of political victimi-ation by those in power. Iormally, interference should be the exception and not the rule. &;. 1! "! #! &! A bare reading of %ection 1&& Cr.'.C. shows that 0 It is an executive power vested in the officer so empowered3 .here must exist sufficient ground for proceeding3 Immediate prevention or speedy remedy is desirable3 and An order, in writing, should be passed stating the material facts and be served the same upon the concerned person. 43

&(.

.hese are the basic re?uirements for passing an order under %uch an order can be passed against an

%ection 1&& Cr.'.C.

individual or persons residing in a particular place or area or even against the public in general. %uch an order can remain in force, not in excess of two months. .he 4overnment has the power to revo2e such an order and wherever any person moves the 4overnment for revo2ing such an order, the %tate 4overnment is empowered to pass an appropriate order, after hearing the person in accordance with %ub6section #! of %ection 1&& Cr.'.C. Kut of the aforestated re?uirements, the re?uirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desiredJcontemplated satisfaction has to be reasonable, least invasive and bona fide. .he restraint has to be reasonable and further must be minimal. %uch restraint should

not be allowed to exceed the constraints of the particular situation either in nature or in duration. .he most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tran?uility should be real and not 44

?uandary, imaginary or a mere li2ely possibility. .his Court in the case of a!ulal "arate supra! had clearly stated the following view 0 1the language of %ection 1&& is somewhat different. .he test laid down in the %ection is not merely )li2elihood* or )tendency*. .he section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. .he power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.5 &D. .he above6stated view of the Constitution Bench is the 7owever, it needs to be

unaltered state of law in our country.

specifically mentioned that the )apprehension of danger* is again what can inevitably be gathered only from the circumstances of a given case. &9. Knce an order under %ection 1&& Cr.'.C. is passed, it is

expected of all concerned to implement the said order unless it has been rescinded or modified by a forum of competent $urisdiction. Its enforcement has legal conse?uences. Kne of such conse?uences would be the dispersement of an unlawful assembly and, if 45

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. .he empowered officer is also vested with ade?uate powers to direct the dispersement of such assembly. In this direction, he may even ta2e the assistance of concerned officers and armed forces for the purposes of dispersing such an assembly. +urthermore, the said officer has even been vested with the powers of arresting and confining the persons and, if necessary, punishing them in accordance with law in terms of %ection 1"9 Cr.'.C. An order

under %ection 1&& Cr.'.C. would have an application to an )actual* unlawful assembly as well as a )potential* unlawful assembly. .his is precisely the scope of application and enforcement of an order passed under %ection 1&& Cr.'.C. =G. 7aving noticed the legal precepts applicable to the present

case, it will be appropriate to notice, at this stage, the factual matrix advanced by each of the parties to the case before this Court.

46

3'(1/-& ,*% 4-(#$(2 56 7'$(&'2 Amicus Curiae =1. In "GGD, Baba /amdev was the first person to raise the issue .he blac2 money outside the country

of blac2 money publically.

was estimated at total of /s.&GG la2h crore or nearly nine trillion ,% Collar. Kn "(th +ebruary, "G11, an Anti6Corruption /ally was held at /amlila :aidan, Iew Celhi where more than one la2h persons are said to have participated. rally included Baba /amdev, .he persons present at the Bala2rishna, /am

Acharya

8ethmalani, Anna 7a-are and many others.

Kn "G th April, "G11,

the 'resident of Bharat %wabhiman .rust, Celhi 'ardesh submitted an application to the :CC proposing to ta2e /amlila :aidan on rent, sub$ect to the general terms and conditions, for holding a yoga training camp for & to = thousand people between 1 st 8une, "G11 to "Gth 8une, "G11. Ceputy 7e had also submitted an application to the of 'olice Central Cistrict! see2ing

Commissioner

permission for holding the Noga .raining Camp which permission was granted by the CC' Central Cistrict! vide his letter dated "= th April, "G11. .his permission was sub$ect to the terms and

47

conditions stated therein. 'ermission letter dated "= th April, "G11 reads as under06

1Hith reference to your letter Io. Iil, dated "G.G&."G11, on the sub$ect cited above, I am directed to inform you that your re?uest for permission to organi-e Noga .raining %ession at /amlila 4round from G1.G;."G11 to "G.G;."G11 by Bharat %wabhiman .rust Celhi 'radesh has been considered and permission is granted for the same sub$ect to the conditions that there should not be any obstruction to the normal flow of traffic and permission from land owing agency is obtained. Besides this, you will deploy sufficient numbers of volunteers at the venue of the function. +urther, you are re?uested to comply with all the instructions given by 'olice authorities time to time failing which this permission can be revo2ed at any time.5 =". Continuing with his agitation for the return of blac2 money to

the country, Baba /amdev wrote a letter to the 'rime :inister on &th :ay, "G11 stating his intention to go on a fast to protest against the 4overnment*s inaction in that regard. .he 4overnment made attempts to negotiate with Baba /amdev and to tac2le the problem on the terms, as may be commonly arrived at between the 4overnment and Baba /amdev. .his process started with effect 48

from 19th :ay, "G11 when the 'rime :inister wrote a letter to Baba /amdev as2ing him to renounce his fast. .he +inance :inister

also wrote a letter to Baba /amdev informing him about the progress in the matter. =#. Kn "#rd :ay, "G11, Baba /amdev submitted an application for

holding a dharna at 8antar :antar, which permission was also granted to him vide letter dated "& th :ay, "G11, which reads as follows06 1Hith reference to your letter dated "#.G=."G11, on the sub$ect mentioned above. I have been directed to inform you that you are permitted dharnaJsatyagrah at 8antar :antar on G&.G;."G11 from GDGG hrs. to 1DGG hrs. with a very limited gathering.5 =&. In furtherance to the aforesaid permission, it was clarified vide

letter dated ";th :ay, "G11 informing the organisers that the number of persons accompanying Baba /amdev should not exceed two hundred. ==. Kn "(th :ay, "G11, the CC' Central Cistrict!, on receiving the

media reports about Baba /amdev*s intention to organi-e a fast 49

unto death at the Noga .raining Camp, made further en?uiries from Acharya Birendra Bi2ram re?uiring him to clarify the actual purpose for such huge gathering. 7is response to this, vide letter dated "Dth :ay, "G11, was that there would be no other programme at all, except residential yoga camp. 7owever, the %pecial Branch, Celhi 'olice also issued a special report indicating that Baba /amdev intended to hold indefinite hunger stri2e along with #G,GGG6#=,GGG supporters and that the organi-ers were further claiming that the gathering would exceed one la2h. =;. According to Cr. Chavan, the learned amicus curiae$ there is Hhen Baba /amdev

still another angle to this whole episode.

arrived at Celhi Airport on 1st 8une, "G11, four senior ministers of the ,'A 4overnment met him at the Airport and tried to persuade him not to pursue the said fast unto death since the 4overnment had already ta2en initiative on the issue of corruption. =(. In the meanwhile, large number of followers of Baba /amdev

had gathered at /amlila :aidan by the afternoon of & th 8une, "G11. In the evening of that very day, one of the :inisters who had met Baba /amdev at the Airport, :r. Mapil %ibal, made public a letter 50

from Baba /amdev*s camp calling off their agitation. .his was not appreciated by Baba /amdev, as, according to him, the

4overnment had not stood by its commitments and, therefore, he hardened his position by declaring not to ta2e bac2 his sat%a(raha until a proper 4overnment Krdinance was announced in place of forming a Committee. .he ministers tal2ed to Baba /amdev in great detail but of no avail. It is stated that even the 'rime :inister had gone the extra mile to urge Baba /amdev not to go ahead with the hunger stri2e, promising him to find a 1pragmatic and practical5 solution to tac2le the issue of corruption. Barious

attempts were made at different levels of the 4overnment to resolve this issue amicably. >ven a meeting of the ministers with Baba It was reported by the

/amdev was held at 7otel Claridges.

'ressJ:edia that many others supported the stand of Baba /amdev. It was widely reported that :r. %ibal had said0 1we hope he honours his commitment and honours his fast. 4overnment has always reached out but can also rein in.5 .his .he

'ress reported the statement of the Chief :inister, Celhi as stated by the officials including 'olice officers in the words0 1action would 51

be ta2en if Baba /amdev*s Noga %hivir turns into an agitation field and three6tier security arrangements have been made for the Shivir which is supported to turn into a massive sat%a(raha5. Anna*s campaign endorsed Baba /amdev*s step. In >ven this

bac2ground, on &th 8une, "G11, Baba /amdev*s hunger stri2e began with the motto of )!hrashtachar mitao sat%a(raha$ the 2ey demands being the same as were stated on "( th +ebruary, "G11. =D. As already noticed, Baba /amdev had been granted

permission to hold sat%a(raha at 8antar :antar, of course, with a very limited number of persons. Cespite the assurance given by

Acharya Birendra Bi2ram, as noted above, the event was converted into an 8nshan and the crowd at the /amlila :aidan swelled to more than fifty thousand. Io yoga training was held for the entire day. At about 1.GG p.m., Baba /amdev decided to march to 8antar :antar for holding a dharna along with the entire gathering. Meeping in view the fact that 8antar :antar could not accommodate such a large crowd, the permission dated "&J"; th :ay, "G11 granted for holding the dharna was withdrawn by the authorities. Certain negotiations too2 place between Baba /amdev and some of 52

the ministers on telephone, but, Baba /amdev revived his earlier condition of time6bound action, an ordinance to bring blac2 money bac2 and the items missing on his initial list of demands. At about 11.1= p.m., it is stated that Centre*s emissary reached Baba /amdev at /amlila :aidan with the letter assuring a law to declare blac2 money hoarded abroad as a national asset. .he messenger 2ept his mobile on so the 4overnment negotiators could listen to Baba /amdev and his aides. .he conversation with Baba /amdev convinced the 4overnment that Baba /amdev will not wind up his protest. At about 11.#G p.m., a team of 'olice, led by the 8oint

Commissioner of 'olice, met Baba /amdev and informed him that the permission to hold the camp had been withdrawn and that he would be detained. At about 1".#G a.m., a large number of C/'+, Celhi 'olice force and /apid Action +orce personnel, totaling approximately to =GGG as stated in the notes of the 8micus.

7owever, from the record it appears to be 1"GG!, reached the /amlila :aidan. sleeping. At this time, the protestors were peacefully

.hereafter, at about 1.1G a.m., the 'olice reached the

daisJplatform to ta2e Baba /amdev out, which action was resisted 53

by his supporters.

At 1."= a.m., Baba /amdev $umped into the

crowd from the stage and disappeared amongst his supporters. 7e, 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 /amdev too2 place and eight rounds of teargas shells were fired. By ".1G a.m., almost all the supporters had been driven out of the /amlila :aidan. .he 'olice sent them towards the Iew Celhi /ailway

%tation. Baba /amdev, who had disappeared from the dais earlier, was apprehended by the 'olice near /an$it %ingh +lyover at about #.&G a.m. At that time, he was dressed in salwar>kamee9 with a dupatta over his beard. 7e was ta2en to the Airport guest6house. It was planned by the 4overnment to fly Baba /amdev in a chopper from %afdar$ung Airport. 7owever, at about 9.=G a.m. the 4overnment shelved this plan and put him in an Indian Air +orce helicopter and flew him out of the Indira 4andhi International Airport.

54

=9.

@earned amicus curiae has made two6fold submissions. Kne

on )facts and pleadings* and the other on )law*. I may now refer to some of the submissions made on facts and pleadings. ;G. .he /amlila :aidan provided an accurate barometer of the

country*s political mood in 19;Gs and 19(Gs which can be gauged from an article dated 1Dth August, "G11 in the .imes of India, which stated as under0 1It was in /amlila 4round that 8ai 'ra2ash Iarain along with prominent Kpposition leaders, addressed a mammoth rally on 8une "=, 19(=, where he urged the armed forces to revolt against Indira 4andhi*s government. Ouoting /amdhari %ingh Cin2ar, 8' thundered, 1%inghasan 2hali 2aro, 2i $anta aati hai Bacate the throne, for the people are here to claim it!5. .hat very midnight, >mergency was declared in the country. @ess than two years later, the ground was the venue for another Kpposition rally that many political commentators describe as epoch6 changing. In +ebruary 19((, more than a month before >mergency was lifted, Kpposition leaders led by 8ag$ivan /am P his first public appearance after ?uitting the Congress P :orar$i Cesai, Atal Bihari Ba$payee, Charan %ingh and Chandrashe2ar, held a $oint rally. .hat the /amlila 4round provided an accurate barometer of the country*s political mood in the 19;Gs and (Gs can be gauged from the 55

fact that in 19(", $ust around three years before the 8' rally, Indira 4andhi addressed a huge rally here following India*s victory over 'a2istan in the Bangladesh war. In 19;=, again at a time when the country was at war with 'a2istan, it was from here that then 'rime :inister @al Bahadur %hastri gave the slogan )8ai 8awan 8ai Misan*. According to Celhi historian, /onald Bivian %mith, the :aidan was originally a pond which was filled up in the early 19#Gs so that the annual /amlila could be shifted here from the flood plains behind /ed +ort. It ?uic2ly became a popular site for political meetings, with 4andhi$i, Iehru, %ardar 'atel and other top nationalist leaders addressing rallies here. According to one account, as 8innah was holding a :uslim @eague rally here in 19&=, he heard someone in the crowd address him as ):aulana*. 7e reacted angrily saying he was a political leader and that honorific should never be used for him. In the 19DGs and 9Gs, the Boat Club became the preferred site for shows of strength. But after the Iarasimha /ao government banned all meetings there during the tumultuous Ayodhya movement, the political spotlight returned to the site where it originally belonged P the /amlila 4round.5 ;1. Amongst other things, it is a place of protests. In the %tanding

Krder #G9 issued by the 'olice, it has been stated that 1any gathering of over =G,GGG should not be permitted at /amlila :aidan but should be offered the Burari grounds as an alternative. If, 56

however, the organi-ers select a par2 or an open area elsewhere in Celhi, the same can be examined on merits.5 ;". 'ointing out certain ambiguities and contradictions in various

affidavits filed on behalf of various officers of the 4overnment and the 'olice, learned amicus curiae pointed out certain factors by way of conclusions0 1It may be concluded that i! the ground became a ma$or protest area after the government abolished rallies at the Boat Club. ii! .he police*s capacity for /amlila is =G,GGG but it limited Baba /amdev*s meet to =GGG. iii! .he ground appears to be accommodative but with only one ma$or exit and entrance. iv! .here are aspects of the material that show considerable mobili-ation. But the figure of =GGG inside the tent is exaggerated. v! .he numbers of people in the tent has varied but seems, according to the 'olice "G,GGG or so at the time of the incident. But the 7ome %ecretary suggests ;G,GGG which is an exaggeration. vi! .he logs etc supplied seem a little hapha-ard, but some logs reflect contemporary evidence which shows things to the courts notice especially. 57

;#.

7owever, it may be noticed by this Court that as per the

version of the police, point no. ii! ought to be read as under0 1.he capacity for /amlila :aidan is =G,GGG but it limited Baba /amdev*s meet to =GGG.5 ;&. After noticing certain detailed facts in relation to the )threat

perception of 'olice* and the ).rust*s perception*, learned 8micus curiae has framed certain ?uestions and has given record6based information as follows0 1 i! C(-#2 P'$8'4*7 $&2 17'',/&0 ;.1 .he crowd entered the /amlila 4round from one entrance without any hassle and co6 operatively 9see CC mar2ed CCGG#1;#5 of "# minutes Q 1( minutes< 'olice was screening each and every individual entering the premises. Kn G&th 8une "G11 many .B new sic! channel live coverage shows about two 2ilometer long ?ueue to enter the :aidan not even a single was armed, lathi or baseball bats etc. p(&1 )ol&B! ;." .he crowd is already slept by 1G.GG6 1G.#G pm shown in newspaper photogrtaphs of G=.G;."G11 see pg.9 Bol.1 and Annexure /6 9 'g. #(6#D, Bol."! 'eople re?uesting the 'olice with folded handed Annexure /69 'g. #9 Bol."! also recorded in CC.B camera*s and in CC GG&G"; mar2ed is Item ./ p(& 3/ )ol&.A2 (//) D/2 %.' P-7/8' '&%'( $5(*,%76 %- ('18/&2 -(2'( $&2 ('+-v' 9$5$ R$+2'v.

58

;.# .he CC mar2ed CC GG#1;#5 of "# minutes on 'olice entry and Baba /amdev*s reaction Q 1G minutes Baba re?uests that he should be arrested in the morning with a warrant3 (///) D/2 9$5$ R$+2'v +$:' $& /&8/%-(6 1,''8. ; ;.& In general Baba /amdev*s speech carry aggressive issues but on G&.G;."G11, no provocation was made by Baba /amdev in any manner says he is read sic P ready! to get arrested but his followers should not be harmed3 as2s his women supporters to form a security ring around him. also re?uest participants not to fight with 'olice and be calm. also re?uests 'olice not to manhandle his supports. 9CCs handed by .rust in Court, the CC mar2ed 1CCGG#1;#5 of "# minutes Q 1G minute.< (/v) W$1 %.' 7$%./ 8.$(0'2 (sic< 8.$(0'2) -(2'('2; W'(' 7$%./1 *1'2; ;.= .he 'olice itself admits use of water cannon and tear gas but denies lathicharge 1Io lathi charge even ordered on public, no organi-ed lathi charge by 'oliceman Q Bol.# 'g.D pr. #G and ## at pg.D693 but evidence shows that lathi being used see 'olice beating people with @athi*s vol." photographs at pg.&&6&=! also in CCGG&G"; mar2ed item 19 pg. #9 Bol. 1G Q &( minute shows lathicharge (v) 9(/8:1 ;.; .he CC mar2ed /&6.I:>HI%>6)B* 6 Q1hr.11 min 'olice entering from the bac2 area and throwing bric2s on the crowd inside the pandal3 (v/) W$%'( 8$&&-& $&2 T'$(0$1 59

;.( Initially Hater cannon used after it proved ineffective tear gas fired towards right side of the stage resulting a small fire Pr.33 pg. 9 Vol.III (v//) I&=*(/'1 ;.D Kn in$uries the figures are not clear as per Commissioner of 'olice, Celhi Affidavit only %#- ,'(1-&1 re?uired hospitali-ation for surgery. Annexure % colly pg. &961&" Bol.III! In$ured Iumbers /eleased /eleased .reatment on first on day second day 'ublic &D &1 G= CiagnosisJ persons +irst aid 'olicemen #D In$ury6sheets pre6dominantly indicate in$uries received during the minor stampede in one part of the enclosure ;.9 Iewspaper the .KI gives the figure of ;" person in$ured and "9 of the in$ured were discharged during the day in @I8' hospital. Hhat about those who were in other hospitals. >ven there are many who failed to get recorded in the list of in$ured or to approach hospital for the medical aid. Knly ;" in$ured that too without lathi charge. ;.9 It will also be sic! demonstrate that i! .he crowd does not appear to be armed in anway P not even with )baseball* bats. ii! .he 'olice sic > personnel! were throwing bric2s. iii! Baba /amdev was abruptly wo2en up. iv! .he crowd was asleep. v! .he 'olice used lathis. 60

vi! .he crowd also threw bric2s. vii! .he 'olice used tear gas around that time. It is not clear what occurred first. viii! Hater cannon was also used by the 'olice. BII. %peech. (.1 +rom the Bideos of Ree Iews and AII, it appears that Baba /amdev i! exhorted people not to fight with 'olice. ii! arrest me in the morning with a warrant. iii! re?uesting first the women then young boys and then the old to ma2e a protective Mavach around him.5 ;=. Kn these facts, it is the submission of learned amicus curiae

that neither the withdrawal of permissions for /amlila :aidan and 8antar :antar nor the imposition of restriction by passing an order under %ection 1&& Cr.'.C. was for valid and good causeJreason. Kn the contrary, it was for political and mala fide reasons. .he

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 4overnment. .he entire exercise was violative of the rights of an individual. A mere change in the number of persons present and an apprehension of the 'olice could not be a reasonable ground for using teargas and lathi charge and 61

thereby unduly disturbing the people who were sleeping peacefully upto 1.GG a.m. on the night of &J= th 8une, "G11 at /amlila :aidan. /eferring to the affidavits of the 7ome %ecretary, the Chief %ecretary, the 'olice officers and the documents on record, the contention is that in these affidavits, the deponents do not spea2 what is true. .he imposition of restriction, passing of the order

under %ection 1&& and the force and brutality with which the persons present at the /amlila :aidan were dispersed is nothing but a show of power of the %tate as opposed to a citi-en*s right. >ven the test of )in terrorum re?uires 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. .he threat

perception of the authorities is more of a created circumstance to achieve the ultimate goal of rendering the agitation and the anshan unsuccessful by colourable exercise of %tate power. ;;. It is also the contention of learned amicus that there are

contradictions in the affidavits filed by the 7ome %ecretary, respondent no.1 and the Commissioner of 'olice, respondent Io. #. .he affidavit of the Chief %ecretary, respondent no.", cannot be 62

relied upon as he pleads ignorance in relation to the entire episode at the /amlila :aidan. According to the 7ome %ecretary, the

:inistry of 7ome Affairs was routinely monitoring the situation and it is not the practice of the :inistry to confirm the grant of such permission. 7e also states that ;G,GGG persons came to the

ground as against the estimated entry of &GGG to =GGG people. Hhile according to the affidavit of the 'olice Commissioner, as a matter of practice, Celhi 'olice 2eeps the :inistry of 7ome Affairs duly informed in such matters as the said :inistry, for obvious reasons, is concerned about the preservation of law and order in the capital and carefully monitors all situations dealing with public order and tran?uility. +rom the affidavit of the Commissioner of

'olice, it is also clear that he was continuously in touch with the senior functionaries of the :inistry of 7ome Affairs and he 2ept them informed of the decisions ta2en by the AC' and CC' to revo2e the permission and promulgate the prohibitory orders under %ection 1&& Cr.'.C.

63

;(.

Besides these contradictions, another very material fact is that

the 7ome :inister, %hri '. Chidambaram had made a press statement on Dth 8une, "G11, relevant part of which reads 06 1A decision was ta2en that %hri Baba /amdev would not be allowed to organise any protest or underta2e any fastPunto6death at /amlila ground and that if he persisted in his efforts to do so he would be directed to remove himself from Celhi.5 ;D. /eference is also made to the statement of :inister of 7/C

%hri Mapil %ibal, who had stated that the 4overnment can rein in if persuasion fails. ;9. +urther, the contention is that these avermentsJreports have

not been denied specifically in any of the affidavits filed on behalf of the 4overnment and Celhi 'olice. .he above statements and contradictions in the affidavits filed by these highly placed 4overnment officers should lead to a reasonable conclusion that the 'olice had only carried out the decision, which was already ta2en by the 4overnment. In these circumstances, even if there

was no direct evidence, the Court can deduce, as a reasonable and inescapable inference from the facts proved, that exercise of power 64

was in bad faith.

/eliance is placed upon the case of S& "ratap

Sin(h v& The State of "un6a! 9 19;&! & %C/ (##<. (G. .he affidavits filed on behalf of the 'olice and the :inistry of .he variance is not of the

7ome Affairs are at some variance.

nature that could persuade this Court to hold that these affidavits are false or entirely incorrect. .his Court cannot lose sight of a very material fact that maintenance of law and order in a city li2e Celhi is not an easy tas2. %ome important and significant decisions

which may invite certain criticism, have to be ta2en by the competent authorities for valid reasons and within the framewor2 of law. .he satisfaction of the authority in such decisions may be

sub$ective, but even this sub$ective satisfaction has to be arrived at ob$ectively and by ta2ing into consideration the relevant factors as are contemplated under the provisions of %ection 1&& Cr.'.C. %ome freedom or leverage has to be provided to the authority ma2ing such decisions. .he courts are normally reluctant to

interfere in exercise of such power unless the decision ma2ing process is e< facie arbitrary or is not in conformity with the parameters stated under %ection 1&& Cr.'.C. itself. 65

(1.

+rom the record, it can reasonably be inferred that the

:inistry of 7ome Affairs and Celhi 'olice were wor2ing in co6 ordination and the 'olice was 2eeping the :inistry informed of every development. .here is some element of nexus between the

4overnment*s stand on the demands of Baba /amdev, its decision in that regard and the passing of an order under %ection 1&&, Cr.'.C. but, this by itself would not render the decision as that ta2en in bad faith& .he decision of the :inistry or the 'olice

authorities may not be correct, but that ipso facto would not be a ground for the Court to believe that it was a colourable andJor mala fide exercise of power. 3'(1/-& -4 R'1,-&2'&% N-.4 0 (". Iow, I may refer to the case put forward by respondent Io.&,

the 'resident of Bharat %wabhiman .rust, Celhi Area who has filed affidavits on behalf of that party. At the outset, it is stated in the affidavits filed that Baba /amdev, the .rust and his followers are law abiding citi-ens of the country and never had any intention to disturb the law and order, in any manner whatsoever. Barious

camps and meetings have been held by the .rust in various parts 66

of the country and all such meetings have been peaceful and successful as well. Baba /amdev had been travelling the length

and breadth of the country explaining the magnitude of the problem of corruption and blac2 money and failure of the 4overnment to ta2e effective steps. .he anti6corruption movement had been at the forefront of the meetings held by Baba /amdev at different places. Baba /amdev is stated to have participated in a meeting against corruption at 8antar :antar on 1& th Iovember, "G1G where more than 1G,GGG people had participated. %imilar

meetings were organi-ed at /amlila :aidan on #G th 8anuary, "G11 and "(th +ebruary, "G11, which also included a march to 8antar :antar. Ione of these events were perceived by the 4overnment as any threat to law and order and, in fact, they were peaceful and conveyed their theme of anti6corruption. Kn & th :ay, "G11, Baba /amdev had written a letter to the 'rime :inister stating his intention to go on fast to protest against the 4overnment*s inaction against bringing bac2 the blac2 money. .his was responded to by the 'rime :inister on 19 th :ay, "G11 assuring him that the 4overnment was determined to fight with the problem of corruption 67

and blac2 money in the economy and illegal deposits in the foreign countries and as2ing him to drop the idea of going on a hunger stri2e till death. Kn "G th :ay, "G11, the .rust had written a letter to the 'olice see2ing permission to hold a fast unto death at 8antar :antar protesting against the 4overnment*s inaction against corruption. .he +inance :inister had also written a letter to Baba /amdev on "Gth :ay, "G11 regarding the same issue. .he dates of applying for permission to hold Noga camp and to hold dharna at 8antar :antar and dates of granting of such permissions are not in dispute. .he above6noticed dates of applying for permission and to hold dharna at 8antar :antar and their conse?uential approval are not disputed by this respondent. According to this respondent, the 'olice had attempted to ma2e a huge issue that the permission granted to the .rust was to hold a yoga camp of approximately =,GGG persons and not a fast with thousands of persons attending. It is submitted by this respondent that 'olice was concerned with the maintenance of law and order, free flow of traffic, etc. .he use of land was the concern of the owner of the land, in the present case, the :unicipal Corporation of Celhi :CC!. .he .rust had 68

applied to the :CC re?uesting it for giving on rentJlease the /amlila :aidan for the period commencing from 1 st 8une, "G11 to "Gth 8une, "G11. Before grant of its permission, the :CC had

written to the .rust that they should obtain IKC from the Commissioner of 'olice, Celhi which was duly applied for and, as already noticed, obtained by the .rust. Kf course, it was a

conditional IKC and the conditions stated therein had been adhered to, whereafter, the :CC had given the /amlila maidan on lease to the .rust. .he permission was revo2ed by the 'olice and not by the :CC and the :CC never as2ed the .rust to vacate the premises, i.e., /amlila :aidan. (#. Before the fateful night i.e. & thJ=th 8une, "G11, it has been

stated that Baba /amdev had reached Iew Celhi and was received at the Airport by the :inisters. .here, at the Airport itself, an

attempt was made to persuade Baba /amdev to call off his fast. .hereafter, a meeting was held at 7otel Claridges on # rd 8une, "G11 wherein Baba /amdev was assured that the 4overnment would ta2e concrete steps to bring bac2 the blac2 money from abroad and

69

they would also issue an Krdinance, whereupon he should call off his fast. (&. Kn &th 8une, "G11, from =.GG a.m., the yoga camp was started

at the /amlila :aidan. .his was also telecasted live on Astha .B and other channels. Curing the yoga camp, Baba /amdev stated that he will re?uest the 4overnment to follow the path of Sat%a and 8hinsa apari(riha and he would ma2e efforts to eradicate

corruption from the country.

7e also informed that the blac2

money should be brought bac2 and he would perform Tapas for the nation in that Shivir. .housands of people had gathered at the

venue. .he 'olice was present there all this time and the number of persons was already much in excess of =,GGG. It is emphasi-ed, in the affidavit of this respondent, that as per the directions of the 'olice, only one entry and one exit gate were being 2ept open and this gate was manned by the 'olice personnel themselves, who were screening each and every person who entered the premises. .here was no disturbance or altercation, whatsoever, and the followers of Baba /amdev were peacefully waiting in ?ueues that stretched for over two 2ilo meters. If the 'olice wanted to limit the number to 70

=,GGG, it could have easily stopped the people at the gate itself. 7owever, no such attempt was made. (=. .his conduct of the 'olice goes to indicate that the 'olice

action resulted from instructions from the 4overnment and their current stand regarding the number of persons present is nothing but an afterthought. .his respondent further asserts that there

was no impediment to the free flow of traffic at any time on the day of the incident. (;. In the afternoon of &th 8une, "G11, when the preparations for

starting the fast at 8antar :antar began, senior officers of Celhi 'olice re?uested the officials of the .rust not to proceed to 8antar :antar. In obedience of this order, the fast was begun at /amlila :aidan itself. Curing the course of negotiations with the

4overnment, Baba /amdev was assured that their demands in relation to blac2 money and corruption would be met. .his led to a festive atmosphere at /amlila :aidan at around (.GG p.m. 7owever, later on, the 4overnment representatives too2 the stand that no such assurances were given by them. Conse?uently, Baba 71

/amdev issued a statement that he will discuss the matter only with the +inance :inister or any other responsible person. At

around 1G.GG p.m., Shanti "aath was performed and everybody went to sleep as 8shtan( Noga training was scheduled for =.GG a.m. next morning. At around 11.GG p.m., the 'ersonal Assistant of %hri %ibal delivered a letter to Acharya Bal2rishna as Baba /amdev was asleep at that time, stating as follows 0 1.his is to clarify that the government is committed to build a legal structure through which wealth generated illegally is declared as a national asset and that such assets nare sic2 sub$ect to confiscation. @aws also provide for exemplary punishment for those who perpetrate ill6gotten wealth. .his clearly declares the intention of the 4overnment. Nou have already publicly stated that upon receiving this letter, you will end your tapa. He hope that you will honour this public commitment forthwith.5 ((. .his letter, it is stated, was found to be vague and non6

committal as it was not mentioned in this letter as to what concrete steps the 4overnment would ta2e to tac2le this national economic and moral crises. At nearly midnight, by way of an unprecedented

action, an order under %ection 1&& Cr.'.C. along with an order 72

cancelling the permission granted earlier by the 'olice, was issued, illegally, without any $ustification and without ade?uate warning. It is specifically denied that this order was served on any officer of the .rust. Around 1".#G a.m., more than =GGG 'olicemen as stated in the notes of the 8micus. 7owever, from the record it appears to be 1"GG police personnel! had surrounded the tent while everyone inside it was sleeping. Hhen as2ed by Baba /amdev to furnish Baba /amdev

the arrest warrant, the 'olice refused to do so.

re?uested all the sadhakas to maintain peace and ahinsa. (D. .his respondent also alleges that the 'olice disabled the Conse?uently, Baba /amdev got off the

public address system.

stage and exhorted his followers to maintain peace and calm. .here was an apprehension that the 'olice intended to 2ill Baba /amdev and therefore, protective cordons were formed around Baba /amdev. In order to gain access to Baba /amdev, 'olice ,se of

launched brutal attac2 on the crowd, including women.

teargas shells was also resorted to, causing a part of the stage to catch fire which could potentially have caused serious casualties. 'olicemen were also engaged in stone pelting and looting. .his 73

event lasted till &.GG a.m.

As a result several people including

women received in$uries. %pinal cord of a woman named /a$bala was bro2en that left her paraly-ed. /espondent Io.& contends that the media footage publically available substantiates these

contentions. (9. Hhile leaving the /amlila :aidan, the 'olice allegedly sealed

access to the 7elp Camp at Bangla %aheb 4urudwara. .he press release and interview given by the :inister of 7ome Affairs on D th 8une, "G11 stresses that the order of externment of Baba /amdev from Celhi after cancellation of permission for the fastJprotest was determined in advance and was to be enforced in the event he 1persisted5 in his efforts to protest. .he re?uirements for an order of externment under %ection &( of Celhi 'olice Act, 19(D for short, )the C' Act*! had, therefore, not been satisfied at the time of such decision and such order was not served on Baba /amdev at any point. .hey also failed to ma2e Baba /amdev aware of any alleged threat to his life.

74

DG.

It is stated that the 'olice have failed to register +I/s on the

basis of complaints of =G to ;G people including that given by one %ri 8agmal %ingh dated 1Gth 8une, "G11. D1. Kn these facts, it is the submission of respondent Io.& that it

is ironic that persons fasting against failure of the Central 4overnment to tac2le the issue of corruption and blac2 money have been portrayed as threats to law and order. Citi-ens have a

fundamental right to assembly and peaceful protest which cannot be ta2en away by an arbitrary executive or legislative action. .he law prescribes no re?uirements for ta2ing of permission to go on a fast. .he respondent Io.& suggests that in order to establish the truth of the incident, an independent Commission should be constituted, based on whose report, legal action to be ta2en in such situations should be determined. D". Hith reference to the above factual averments made by

respondent no.&, the argument advanced by :r. /am 8ethmalani, %enior Advocate, is that, in the earlier meetings, both at the /amlila :aidan and 8antar :antar, no untoward incident had occurred, which could, by any standard, cause an apprehension in the mind 75

of the 'olice that there could occur an incident, communal or otherwise, leading to public disorder, in any way. .he revocation of permissions as well as the brutality with which the gathering at the /amlila :aidan was dispersed is impermissible and, in any case, contrary to law. .he 4round belongs to the :unicipal Corporation of Celhi and the permission had duly been granted by the said Corporation for the entire relevant period. .his permission had

never been revo2ed by the Corporation and as such the 'olice had no power to evict the public from the premises of /amlila :aidan. .he 'olice had also granted a )Io Kb$ection Certificate* IKC! for holding the meeting and the withdrawal of the IKC is without any basis and $ustification. .he purpose for granting of permission by the 'olice was primarily for the reason that0 a. .he Corporation had re?uired such permission to be obtained3 b. .here should be no obstruction to the traffic flow3 and c. .here should be proper deployment of volunteers in ade?uate number.

76

D#.

Ione of the stated conditions, admittedly, had been violated

and as such there was no cause for the 'olice authorities to withdraw the said permission. In fact, it is the contention on behalf of this respondent that there was no re?uirement or need for ta2ing the permission of the 'olice for holding such a function. /eliance in this regard is placed upon the $udgment of this Court in the case of ;estruction of "u!lic and "rivate "roperties$ In Re v& 8ndhra "radesh and Krs. 9 "GG9! = %CC "1"<. D&. >ven if for the sa2e of arguments, it is assumed that there was State of

a re?uirement for see2ing permission from the 'olice and the 'olice had the authority to refuse such a permission and such authority was exercised in accordance with law, then also this respondent and the public at large were entitled to a clear and sufficient notice before the 'olice could use force to disperse the persons present at the site. D=. Imposition of an order under %ection 1&& Cr.'.C. was neither for nor could have been passed in the facts and

called

circumstances of the present case. It is contended that 'olice itself was an unlawful assembly. It had attac2ed the sleeping persons, 77

after midnight, by trespassing into the property, which had been leased to the respondent6.rust. .he use of teargas, lathi charge, bric26batting and chasing the people out of the /amlila :aidan were un$ustifiable and brutal acts on the part of the 'olice. It was completely disproportionate not only to the exercise of the rights to freedom of speech and expression and peaceful gathering, but also to the re?uirement for the execution of a lawful order. restriction imposed, being unreasonable, .he

its disproportionate

execution renders the action of the 'olice unlawful. .his brutality of the %tate resulted in in$uries to a large number of persons and even in death of one of the victims. .here has also been loss and damage to the property. D;. Another aspect that has been emphasi-ed on behalf of this

respondent is that there was only one gate for )>ntry* and one for )>xit*, besides the BI' >ntry near the stage. .his was done as per the directive of the 'olice. .he entry gate was completely manned by the 'olice and each entrant was fris2ed by the 'olice to ensure security. .hus, the 'olice could have easily controlled the number and manner of entry to the /amlila :aidan as they desired. At no 78

point of time there were more than =G,GGG people present at the premises. Kn the contrary, in the midnight, when the 'olice used force to evict the gathering, there were not even "G,GGG people sleeping in the tent. @astly, it is also contended that the people at /amlila :aidan were sleeping at the time of the occurrence. .hey were wo2en up by the 'olice, beaten and physically thrown out of the tents. In that process, some of the persons lost their belongings and even suffered damage to their person as well as property. Ieither was there any threat to public tran?uility nor any other material fact existed which could provide ade?uate basis or material to the authorities on the basis of which they could ta2e such immediate preventive steps, including imposition of the prohibitory order under %ection 1&& Cr.'.C. In fact, the order was passed in a pre6planned manner and with the only ob$ect of not letting Baba /amdev to continue his fast at the relevant date and time. All this happened despite the full cooperation by Baba 7e had voluntarily accepted the re?uest of the 'olice not

/amdev.

to visit 8antar :antar along with his followers on & th 8une, "G11 itself. >verything in the /amlila :aidan was going on peacefully 79

and without giving rise to any reasonable apprehension of disturbance of public orderJpublic tran?uility. .hese orders

passed and executed by the executive and the 'olice did not satisfy any of the essential conditions as postulated under %ection 1&& Cr.'.C. P-7/8' 3'(1/-& D(. .he Commissioner of 'olice, Celhi has filed various affidavits I may notice

to explain the stand of the 'olice in the present case.

that there is not much variation in the dates on which and the purpose for which the permissions were granted by the competent authority as well as the fact that /amlila :aidan was given by the :CC to respondent Io. &. DD. According to the 'olice also, the .rust, respondent Io. &, had

sought permission to hold %o(a camp for &,GGG to =,GGG people from 1st 8une, "G11 to "Gth 8une, "G11 and the same was granted sub$ect to the conditions stated above. Baba /amdev had made a

statement in the media indicating his intention to hold 8nshan& ,pon see2ing clarification by the CC', Central Cistrict vide letter dated "(th :ay, "G11, the Acharya by their letter dated "D th :ay, 80

"G11 had re6affirmed their stand that a yoga camp was to be held. It is the case of the respondent Io.# that on #G th :ay, "G11, %pecial Branch, Celhi 'olice had issued a special report that Baba /amdev would proceed on an indefinite hunger stri2e with #G,GGG6 #=,GGG persons and, in fact, the organi-ers of respondent Io. & were claiming that the gathering may exceed even one la2h in number. D9. .he permission to hold the %o(a camp was granted to the Citing certain inputs, the CC' issued a warning

respondent Io. &.

to respondent Io.& expressing their concern about the variance of the purpose as well as that there should be a limited gathering, otherwise the authorities would be compelled to review the permission. .he CC' issued law and order arrangements detailing

the re?uirement of +orce for dealing with such a large gathering. 9G. +urther, inputs given on #rd 8une, "G11 had indicated that

Baba /amdev was being targeted by certain elements so as to disrupt communal harmony between 7indus and :uslims. Advice was made for review and strengthening of security arrangements. As a result thereto, security of Baba /amdev was upgraded to RS 81

category vide order dated # rd 8une, "G11 and a contingency plan was also drawn. Kn & th 8une, "G11, despite assurances, the yoga

training was converted into 8nshan at about 1#GG hrs. and Baba /amdev decided to march to 8antar :antar for ) ;harna* with the entire gathering, the permission for which was limited to only "GG people. .herefore, in view of the huge mass of people li2ely to come to 8antar :antar, the said permission was withdrawn on & th 8une, "G11. 91. Baba /amdev refused to accept the order and, in fact,

exhorted his followers to stay bac2 in Celhi and called for more people to assemble at /amlila :aidan, which was already full. .he verbal inputs received by the 8oint Commissioner of 'olice indicated the possibility of further mobilisation of large number of people by the next morning. /amlila :aidan is surrounded by @ate at night, crowd had

communally hyper6sensitive localities.

thinned down to a little over "G,GGG. %ince a large number of people were expected to gather on the morning of = th 8une, "G11, the permission granted to the .rust was also withdrawn and

prohibitory orders under %ection 1&& Cr.'.C. were issued. 82

9".

In view of the above, the CC' considered it appropriate to

immediately serve the order on Baba /amdev re?uiring him and the people present to vacate the /amlila :aidan. 9#. According to these affidavits, +orce was deployed to assist the Buses were deployed at

public in vacating the /amlila :aidan.

gates and ambulances, fire tenders, 'C/ vans were also called for. Baba /amdev refused to comply with the orders. Kn the contrary, he $umped into the crowd, as2ed women and elderly persons to form a cordon around him in order to prevent the 'olice from reaching him. his associates. Io hearing was claimed by Baba /amdev or any of .his sudden reaction of Baba /amdev created Baba /amdev exhorted his

commotion and resulted in melee.

followers not to leave the /amlila :aidan. Baba /amdev, later on along with his followers, went on to climb the stage which is stated to have collapsed. .he supporters of respondent Io. & had stoc2ed the bric2s behind the stage and were armed with stic2s and baseball bats. .he crowd started bric26batting and throwing

security gadgets, flower pots etc. at the 'olice from the stage resulting in in$uries to 'olicemen and a minor stampede in public 83

in a part of the enclosure. with his female followers. stage and got in$ured. used minimum force.

Baba /amdev vanished from the stage +ew members of public $umped from the

'olice exercised maximum restraint and .o disperse the crowd, they initially used

water canons, which when proved ineffective, teargas shells, only on right side of the stage, were used in a controlled manner. 9&. It is stated that this situation continued for around two hours

and the 'olice did not have any intention to forcibly evacuate the public from /amlila :aidan. As Baba /amdev decided to evade .he

the 'olice, the situation at /amlila :aidan became volatile.

print media have given reports on the basis of incorrect facts or hearsay. 9=. It is also stated in this affidavit that total #D 'olicemen and &D

public persons were in$ured and according to the medical reports, public persons sustained in$uries during the minor stampede which occurred in one part of the enclosure. discharged on the same date. :ost of these persons were

.he press clippingJreports do not

present a complete picture of the incident and contained articles based on incorrect facts. .he incident was unfortunate but was 84

avoidable, had the organi-ers acted as law abiding citi-ens and accepted the lawful directions of the 'olice. 9;. 7aving stated that the teargas shelling and the other force was

used as a response to the bric26batting and misbehavior by the gathering, it is also averred that the affidavit filed on behalf of respondent no.& could not be relied upon as the person swearing it was admittedly not present at the venue after 1G.#G p.m. on & th 8une, "G11. All these actions are stated to have been ta2en by the +orce in consultation with the senior officers and no instructions are stated to have been received from the :inistry of 7ome Affairs, although the said :inistry was 2ept informed and apprised of the development from time to time. All this was done in the interest of public order, larger security concern and preservation of law and order. 9(. 'ermission of Celhi 'olice is re?uired by anyone planning to

hold public functions at public places. Celhi 'olice, having granted such permission, was fully competent to revo2e it as well as to pass orders under %ection 1&& Cr.'.C. .he organi-ers of /espondent

no.& had misled the 'olice and the %pecial Branch report had 85

clarified the situation on #G th :ay, "G11 that the intention was to hold indefinite hunger stri2e. It is stated that by the evening of # rd 8une, "G11, only =GGG persons had arrived. It is the case of the 'olice that they had persuaded Baba /amdev not to go to 8antar :antar with his followers and, therefore, the dharna at 8antar :antar was cancelled. It was the apprehension of the 'olice that the gathering would increase several folds by the next morning and that could raise a ma$or law and order problem and there was a possible imminent threat to public safety. .hus, the permission

was withdrawn and order under %ection 1&& Cr.'.C. was passed. Celhi 'olice confirms that it had been communicating information at the level of the %ecretary to the :inistry of 7ome affairs and any discussion or communication beyond that level is a matter in the domain of that :inistry itself. It was only in conse?uence of the violent retaliation by the crowd that use of teargas, water cannons and finally lathi charge was ta2en recourse to by the 'olice. .he video footage shows that a group of supporters of respondent no.& standing on one side of the stage started throwing bric2s and flower pots, etc. .he 'olice also found the bric2s stac2ed behind the 86

stage. It was the bric26batting and the atmosphere created by the crowd that resulted in a minor stampede. +urther, it is stated that the pandal was open on all sides, ceiling was high and there were enough escape routes and the use of teargas in such a situation is not prohibited. >ight teargas shells were used to prevent the 'olice from being targeted or letting the situation turn violent and all precautions were ta2en before such use. Io 'olice Kfficer was

found to be hitting any person. /espondent no.& had been as2ed to install sufficient CC.B cameras and :Js. %ai Hireless removed the cameras and CB/s installed by them immediately after the incident on =th 8une, "G11. .he proprietor had even lodged a

complaint at 'olice %tation, Mamla :ar2et and a case of theft under +I/ Io. &9 of "G11 was registered. .he said concern, upon being called for the same by a notice under %ection 91 Cr.'.C., produced 1G CB/s containing more than 19G hours of video. .he

investigation of that case revealed that out of &D cameras ordered by the organi-ers, only && were installed, &" were made operational out of which two remained non6functional and recording of one could not be retrieved due to technical problems. /ecording of eight 87

cameras and two CB/s were not available as these e?uipments were reportedly stolen, as noted above. only &1 camerasJCB/s were available. 9D. .he primary aim of :CC is to earn revenue from commercial .hus, the recordings from

use of land and it is for the 'olice to ta2e care of the law and order situation and to regulate demonstrations, protests, marches etc. Io eviction order was passed except that the permissions were cancelled and order under %ection 1&& Cr.'.C. was made. 99. Kn "=th 8uly, "G11, another affidavit was filed by the

Commissioner of 'olice stating that nearly 1== complaints in writing andJor through e6mail were received by the 'olice %tation Mamla :ar2et alleging beating by the 'olice, theft and loss of property i.e. belongings of the complainants, 1# out of them were duplicate, 11 anonymous and #= e6mails were in the nature of comments. Kn investigation, only four persons responded to the

notice under %ection 91 Cr.'.C, but stated facts different from what had been noticed in the complaints. %ome complaints were also

being investigated in case +I/ Io. &= of "G11 registered at the same 'olice station. 88

1GG. It is further the case, as pro$ected during hearing, that probably one %mt. /a$bala, who was on the stage with Baba /amdev, had fallen from the stage and became unconscious. .his

complaint was also received at the 'olice %tation Mamla :ar2et and was entered at para Io. ";A dated ;th 8une, "G11. 1G1. %till, in another affidavit dated "G th %eptember, "G11 filed on behalf of respondent Io. #, it was specifically denied that any footages had been tampered with. .he 'olice had climbed to the

stage, firstly, to serve the order and, thereafter, only when the entire incident was over and it was denied that /a$bala was beaten by the 'olice. 1G". It is stated that the respondents, including respondent Io. &, have isolated a segment of footage wherein few 'olicemen are throwing bric2s on tents near the stage. It is stated to be an

isolated incident and was a reaction of few 'olicemen to a spate of bric2s by Baba /amdev*s supporters. Hith regard to the in$uries and cause of death of %mt. /a$bala who died subse?uent to the issuance of notice by this Court, it is averred that she was given medical aid and was admitted to the IC,. .here was no external 89

in$ury on her body.

It is also stated that she was offered medical

help of /upees two la2h which was not accepted. %he was a case of 1gross osteoporosis5, that too, to the extent that she was being managed by 1endrocrinologist5 during her treatment. As stated,

according to the medical literature, osteoporosis of this degree could ma2e her bones brittle and prone to fracture even by low intensity impact. 1G#. Hhile relying upon the above averments made in different affidavits, the submission on behalf of respondent Io. # is that there being no challenge to the %tanding Krder #G9, provisions of the C' Act and the 'un$ab 'olice /ules and even the order passed under %ection 1&& Cr.'.C., the action of Celhi 'olice has to be treated as a reasonable and proper exercise of power. .he

organi-ers of respondent Io.& had misrepresented the 4overnment and the 'olice authorities with regard to holding of the yoga camp. .he .rust is guilty of see2ing permission on incorrect pretext. .he

effort on behalf of the 'olice was that of carefully watching the development rather than ta2ing any rash decisions and cancelling the permission earlier than when it was actually cancelled. 90

1G&. .he right to freedom in a democracy has to be exercised in terms of Article 19 1! a! sub$ect to public order. 'ublic order and

public tran?uility is a function of the %tate which duty is discharged by the %tate in the larger public interest. .he private

right is to be waived against public interest. .he action of the %tate and the 'olice was in conformity with law. As a large number of persons were to assemble on the morning of = th 8une, "G11 and considering the other attendant circumstances seen in light of the inputs received from the intelligence agencies, the permission was revo2ed and the persons attending the camp at /amlila :aidan were dispersed. 1G=. >ven if for the sa2e of argument, it is ta2en that there were some stray incidents of 'olice excessiveness, the act best can be attributable to individual actions and cannot be treated or termed as an organi-ational brutality or default. 1G;. Individual responsibility is different from responsibility of the +orce. Abuse by one may not necessarily be an abuse of exercise .he 'olice had waited for a the order withdrawing the 91

of power by the +orce as a whole. considerable time inasmuch as

permission was passed at about 9.#G p.m. and was brought to the notice of the representatives of /espondent Io.& at about 1G.#G p.m. and no action was ta2en by the 'olice till approximately 1 a.m. .his was for the fact that the persons were sleeping and 'olice wanted them to disperse in a peaceful manner, but it was the stone pelting, the panic created by the organisers and the conse?uent stampede that resulted in in$uries to some persons. .he

contention is also that the organi-ers are responsible for creating the unpleasant incident on midnight of & thJ=th 8une, "G11 and they cannot absolve themselves of the responsibilities and liabilities arising therefrom. fide& .he 'olice had acted in good faith and !ona

.herefore, the action of the 'olice cannot be termed as

arbitrary, mala fide or violative of the basic rule of law. 1G(. @astly, :r. 7arish %alve, learned senior counsel appearing for respondent Io.#, contended that there are certain issues which this Court need not dwell upon and decide as they do not directly arise for determination in the facts and circumstances of the present case0

92

a! Hhether it was necessary for :CC to direct and for organi-ers to ta2e permission from Celhi 'oliceT
b)

Cancellation of permission for holding of ;harnaJagitation at 8antar :antar.

c! Balidity of the orders passed by the %tate including the order passed under %ection 1&& Cr.'.C. 1GD. I have noticed, in some detail, the version of each of the parties before the Court in response to the suo moto notice. Before

analy-ing the respective versions put before the Court by the parties and recording the possible true version of what happened which made the unfortunate incident occur, I would li2e to notice that I am not prepared to fully accept the last contention raised by :r. 7arish %alve, in its entirety. Kf course, it may not be necessary for this Court to examine the effect of the cancellation of permission for 8antar :antar and validity of the orders passed by the 4overnment, but this Court is certainly called upon to deal with the ?uestion whether it was obligatory for the organi-ers, respondent Io.&, to see2 the permission of the 'olice for holding such a large public demonstration. .herefore, I would be touching the various 93

aspects of this issue and would deal with the orders of the %tate to the extent it is necessary to examine the main issue in regard to the excessive use of force and brutality and absolute organi-ational default by the 'olice, if any. F/&2/&01 -& I&8/2'&% -4 M/2&/0.% -4 4 %./5%. J*&'! 2011 $&2 %.' R-7' -4 P-7/8' $&2 M'+5'(1/4-77-#'(1 -4 R'1,-&2'&% N-.4 1G9. All Iational and Celhi >dition newspapers dated = th 8une, "G11 as well as the media reports had reported the unfortunate incident that occurred on the midnight of & thJ=th 8une, "G11 at /amlila :aidan in Celhi. Kn the night of & th 8une, "G11, all the men and women, belonging to different age groups, who had come to /amlila :aidan to participate in the Noga .raining Camp called as )=ishulk @o(a )i(%an Shivir*, were comfortably sleeping at the /amlila :aidan, when suddenly at about midnight, the people were wo2en up. .he 8oint Commissioner of 'olice sought to serve the order revo2ing the permission granted to hold the said yoga camp and imposing %ection 1&& Cr.'.C., purportedly to curb any agitation at the /amlila :aidan. /amlila :aidan. .here was commotion at the

'ersons who had suddenly wo2en up from sleep

could not 2now where and how to go. It appears that Baba /amdev 94

did not receive the orders.

7owever, some of the officials of the

Bharat %wabhiman .rust were made aware of the orders. .hereafter, the 'olice made an attempt to disperse the gathering at about and after 1.GG a.m. on &thJ=th 8une, "G11. 11G. .hey are stated to have resorted to use of teargas and lathi charge in order to disperse the crowd as they were unable to do so in the normal course. %ince there was protest by the people and some violence could result, the 'olice used teargas and lathi charge to ensure dispersement of the assembly which had, by that time, been declared unlawful. As a result of this action by the 'olice, a number of men and women were in$ured, some seriously. .his also finally resulted into the death of one %mt. /a$bala. 111. .his action of the 'olice was termed as brutal and uncalled for by the 'ress. 7eadlines in the various newspapers termed this

unfortunate incident as follows0

.imes of India dated ;th 8une, "G11 0

95

)'h% Centre went from lickin( to kickin($ CRamleela *round never saw so much drama$ CShe ma% !e paral%9ed for life& C'omen not spared$ we were !linded !% smoke CCops claim terror alert to 6ustif% midni(ht raid CSwoop =ot Sudden$ cops trailed Ramdev for 3 da%s C8fter eviction the% chant and sDuat on road C"rotestors 8rmed with !ricks$ !ase!all !ats Cops Indian >xpress dated ;th 8une, "G11 0 C a!a *ives U"8 a Sleepless Summer C'eek 8(o$ ,ome$ ;elhi "olice told *ovt : look at plan the show C*ettin( Ramdev +ut C@ieldin( and !un(lin( E Con( -'eak2 Core *roup 11". .his event was described with great details in these news items and articles, along with photographs. Besides the fact that

large number of persons were in$ured and some of them seriously, there was also damage to the property. .he ?uestion raised before 96

this Court, inter alia, included the loss and damage to the person and property that resulted from such unreasonable restriction imposed, its execution and invasion of fundamental right to speech and expression and the right to assembly, as protected under Articles 19 1! a! and 19 1! b!. It is contended that the order was

unreasonable, restriction imposed was contrary to law and the entire exercise by the 'olice and the authorities was an indirect infringement of the rights and protections available to the persons present there, including Article "1 of the Constitution. 11#. .hese events and the prima facie facts stated above,

persuaded this Court to issue a suo moto notice vide its order dated ;th 8une, "G11. .his notice was issued to the 7ome %ecretary,

,nion of India, the Chief %ecretary, Celhi Administration and the 'olice Commissioner of Celhi to show cause and file their personal affidavits explaining the conduct of the 'olice authorities and the circumstances which led to the use of such brutal force and atrocities against the large number of people gathered at /amlila :aidan. In reply to the above notice, different affidavits have been filed on behalf of these authorities $ustifying their action. A notice 97

was issued to Bharat %wabhiman .rust vide order dated "G th 8une, "G11. .he application for intervention on behalf of /a$bala now deceased! was allowed vide order dated "9 th August, "G11. filed their own affidavit. .hey

In order to ensure proper independent

assistance to the Court, the Court also appointed an amicus curiae and Cr. Chavan accepted the re?uest of the Court to perform this onerous $ob. 11&. 7aving ta2en into consideration the version of each party before this Court, I would now proceed to limn the facts and circumstances emerging from the record before the Court that led to the unfortunate incident of the midnight of &J= th 8une, "G11. Hithout any reservation, I must notice that in my considered view, this unfortunate incident could have been avoided by proper patience and with mutual deliberations, ta2en ob$ectively in the interest of the large gathering present at /amlila :aidan. %ince

this unfortunate incident has occurred, I have to state with clarity what emerges from the record and the conse?uences thereof.

98

11=. As already noticed, the %o(a camp at the /amlila :aidan had begun with effect from 1st 8une, "G11 and was continuing its normal functioning with permission from the 'olice as well as with due grant of licence by the :CC. ,ndoubtedly, respondent Io.& had the permission to also hold a dharna at 8antar :antar on &th 8une, "G11 to raise a protest in relation to various issues that had been raised by Baba /amdev in his letters to the 4overnment and in his address to his followers. .hese permissions had been

granted much in advance. As a response to the pamphlets issued and the inputs of the intelligence agencies, the CC' Central

Cistrict! Celhi had expressed certain doubts vide his letter dated "(th :ay, "G11 as2ing for clarification as to the actual number of persons and the real purpose for which /amlila :aidan would be used from 1st 8une, "G11. .o this, respondent Io.& had promptly replied stating that there will be no other event except the residential yoga camp. 7owever, 2eeping in view the information received, the Ceputy Commissioner of 'olice, Central Cistrict, vide his letter dated 1st 8une, "G11 had issued further directions for being implemented by respondent Io.& and reiterated his earlier 99

re?uirements, including that number of the gathering should remain within the limits conveyed. In this letter, it was also

indicated that the authorities may review the position, if necessary. 7owever, on #rd 8une, "G11, it had been noticed that a huge gathering was expected in the programme and also that the inputs had been received that Baba /amdev would sit on an indefinite hunger stri2e with effect from & th 8une, "G11 in relation to the issues already raised publically by him. After noticing various

aspects, including that various terrorist groups may try to do something spectacular to hog publicity, respondent no.# made a very ob$ective assessment of the entire situation and issued a detailed plan of action to ensure smooth functioning of the agitationJyoga camp at /amlila :aidan without any public disturbance. .he ob$ectives stated in this planned programme have duly been noticed by me above. 11;. All this shows that the authorities had applied their mind to all aspects of the matter on " nd 8une, "G11 and had decided to permit Baba /amdev to go on with his activities. In furtherance to it, the Ceputy Commissioner of 'olice, Central Cistrict had also 100

issued a restricted circular as contingency plan. It is obvious from various letters exchanged between the parties that as on # rd 8une, "G11, there had been a clear indication on behalf of the authorities concerned that Baba /amdev could go on with his plans and, in fact, proper plans had been made to ensure security and regulation of traffic and emergency measures were also put in place. As I have already indicated, there is nothing on record to show, if any information of some untoward incident or any other intelligence input was received by the authorities which compelled them to invo2e the provisions of %ection 1&& Cr.'.C., that too, as an emergency case without any intimation to the organi-ers and without providing them an opportunity of hearing. .he expression )emergency* even if understood in its common parlance would mean an exigent situation %ee Blac2*s @aw Cictionary P .wentieth >dn.!3 A serious, unexpected and potential dangerous situation re?uiring immediate action %ee Concise Kxford >nglish Cictionary P

>leventh >dn.!. %uch an emergent case must exist for the purpose of passing a protective or preventive order. .his may be termed as an )emergency protective order* or an )emergency preventive order*. 101

In either of these cases, the emergency must exist and that emergent situation must be reflected from the records which were before the authority concerned which passed the order under %ection 1&& Cr.'.C. .here are hardly any factual averments in the affidavit of the Commissioner of 'olice which would show any such emergent event happening between #rd and &th 8une, "G11. 11(. %imilarly, nothing appears to have happened on & th 8une, "G11 except that the permission to hold a dharna at 8antar :antar granted to respondent no.& was withdrawn and the 'olice had re?uested Baba /amdev not to proceed to 8antar :antar with the large number of supporters, which re?uest was acceded to by Baba /amdev. 7e, in fact, did not proceed to 8antar :antar at all and stayed at /amlila :aidan. 11D. It is also noteworthy that after his arrival on 1 st 8une, "G11 at the Airport, Baba /amdev met few senior ministers of the 4overnment in power. 7e also had a meeting with some ministers at 7otel Claridges on #rd 8une, "G11. .he issues raised by Baba /amdev were considered and efforts were admittedly made to 102

dissuade Baba /amdev from holding Sat%a(raha at 8antar :antar or an indefinite fast at /amlila :aidan. 7owever, these

negotiations failed. According to the reports, the 4overnment failed to 2eep its commitments, while according to the 4overnment, Baba /amdev failed to 2eep up his promise and acted contrary even to the letter that was given by him to the ministers with whom he had negotiated at 7otel Claridges. .hus, there was a deadloc2 of

negotiations for an amicable resolution of the problems. 119. .his is the only event that appears to have happened on # rd and &th 8une, "G11. Kn the morning of & th 8une, "G11, the %o(a camp was held at the /amlila :aidan peacefully and without disturbing public order or public tran?uility. After the day*s

proceedings, the large number of people who were staying at the /amlila :aidan, went to sleep in the Shamiana itself where due arrangements had already been made for their stay. Beds were supplied to them, temporary toilets were provided and water tan2s and arrangements of food had also been made. .he footages of the CC.B cameras, videos and the photographs, collectively annexed as Annexure69 to the affidavit of respondent Io.&, establish this fact 103

beyond any doubt that all persons, at the relevant time, were peacefully sleeping. 1"G. According to the 'olice, on &th 8une, "G11, Baba /amdev had delivered a speech re?uesting people from various parts of the country to come in large number and $oin him for the Sat%a(rah. .he order withdrawing the permission for holding a %o(a shivir at the /amlila :aidan was passed at 9.#G p.m. .he 'olice reached

the /amlila :aidan in order to inform the representatives of respondent Io.& about the passing of the said order, after 1G.#G p.m. At about 11.#G p.m., on the same date, the executive

authority passed an order under %ection 1&& Cr.'.C. .he 'olice officers came to serve this order upon the representatives of respondent Io.& much thereafter. .he footages of the CC.B

Camera Ios. ", #, &, (, D, 9, 1", 1=, 1(, 1D and #" show that even at about 1.GG a.m. in the night of & thJ=th 8une, "G11, people were sleeping peacefully. .he 'olice arrived there and tried to serve the said order upon the representatives of respondent Io.& as well as as2ed for Baba /amdev, who was stated to be ta2ing rest in his rest room. 7owever, the action of the 'olice officers of going on the 104

stage and of some of them moving where people were sleeping obviously caused worry, fear and threat in the minds of the large number of persons sleeping in the tent. It is the conceded position before this Court that nearly 1=,GGG to "G,GGG persons were present in the tent at the relevant time. 1"1. .he CC.B footages clearly show the 'olice officers tal2ing to Baba /amdev and probably they wanted to serve the said orders upon him. 7owever, Baba /amdev withdrew from the deliberations and $umped from the stage amidst the crowd. By this time, a large number of persons had gathered around the stage. After climbing on to the shoulders of one of his followers, Baba /amdev addressed his followers. 7e exhorted them to form a cordon around him in the manner that the women forming the first circle, followed by youth and lastly by rest of his supporters. .his circle is visible in the evidence placed before the Court. I do not consider it necessary to refer to the speech of Baba /amdev to the crowd in any greater detail. %uffice it to note that while addressing the gathering, Baba /amdev referred to his conversations with the 4overnment, urged the crowd to chant *a%atri #antra, maintain Shanti and not to ta2e 105

any confrontation with the 'olice. 7e further stated that he would not advise the path of hinsa, but at the same time, he also stated about his tal2s with the 4overnment and reiterated that he will not leave, unless the people so desired and it was the wish of 4od. 7e

also chanted the *a%atri #antra, and wished all the people around him. At the same time, it is also clear from the evidence of CC.B Camera*s footage and the photographs, that Baba /amdev had referred to the failure of his tal2s with the 4overnment and his desire to continue his 8nshan. 7e also, in no uncertain terms,

stated )Baba$i will go only if people wanted and the 4od desires it.* Another significant part of Baba /amdev*s speech at that crucial time was that he urged the people not to have any confrontation with the 'olice and that he had no intentionJmind to follow the path of hinsa or to instigate ?uarrel with the authorities. By this time, all persons present in the tent had already wo2en up and were listening to Baba /amdev interacting with the 'olice. %ome people left while a large number of people were still present in the shamiana& According to the 'olice, bric2 batting started from one corner of the stage and it was only in response thereto, they had 106

fired the teargas shells on and around the stage. teargas shells were fired.

In all, eight

According to the 'olice, they did not

resort to any lathi charge and, in fact, they had first used water cannons. According to respondent Io.&, the 'olice had first fired teargas shells, then lathi charged the persons present and never used water cannons. According to them, the 'olice even threw

bric2s from behind the stage at the people and the control room and it was in response thereto that some people might have thrown bric2s upon the 'olice. 1"". Hhat is undisputable before this Court is that the 'olice as well as the followers of Baba /amdev indulged into bric2 batting. .eargas shells were fired at the crowd by the 'olice and, to a limited extent, the 'olice resorted to lathi charge. After a large number of 'olice personnel, who are stated to be more than a thousand, had entered the /amlila :aidan and wo2en up the persons sleeping, there was commotion, confusion and fear amongst the people. Besides that, it had been reported in the 'ress that there was lathi charge. :en and women of different age groups were present at the /amlila :aidan. .he photographs also show that a large number 107

of 'olice personnel were carrying lathis and had actually beaten the persons, including those sitting on the ground or hiding behind the tin shed, with the same. CC.B Camera Io. = shows that the 'olice personnel were also throwing bric2s. .he same camera also shows that even the followers of Baba /amdev had used the fire extinguishing gas to create a curtain in front, when they were throwing bric2s at the 'olice and towards the stage. .he CC.B

cameras also show the 'olice pushing the persons and compelling them to go out. .he 'olice personnel can also be seen brea2ing the barriers between the stage and the ground where the people were sitting during the yoga sessions. .he photographs also show some 'olice personnel lifting a participant from his legs and hands and trying to throw him out. .he photographs also show an elderly

sic2 person being attended to and carried by the volunteers and not by the 'olice. 1"#. .he documents on record show that some of the 'olice personnel certainly abused their authority, were unduly harsh and violent towards the people present at the /amlila :aidan, whereas some others were, in fact, tal2ing to the members of the gathering 108

as well as had adopted a helpful attitude.

.he bric2 batting

resorted to by both sides cannot be $ustified in any circumstances whatsoever. >ven if the followers of respondent Io.& acted in

retaliation to the firing of teargas, still they had no cause or right in law to throw bric2s towards the stage, in particular, towards the 'olice and it is a hard fact that some 'olice personnel were in$ured in the process. %imilarly, the use of teargas shells and use of lathi charge by the 'olice, though limited, can hardly be $ustified. In no case, bric2 batting by the 'olice can be condoned. .hey are the protectors of the society and, therefore, cannot ta2e recourse to such illegal methods of controlling the crowd. .here is also no

doubt that large number of persons were in$ured in the action of the 'olice and had to be hospitali-ed. >lement of indiscipline on behalf of the 'olice can be seen in the footage of the CC.B cameras as well as in the log boo2 entries of the 'olice. 1"&. At this stage, it will be useful to examine the 'olice records in this respect. 'olice arrangements had been made in furtherance to the arrangements planned by the Central Cistrict of 'olice, Celhi dated "nd 8une, "G11. Copies of the 'olice log boo2 have been 109

placed on the file.

As on = th 8une, "G11 at about 1."D a.m., a

message was flashed that the whole staff of the concerned 'olice stations shall report to 'olice %tation Mamla :ar2et immediately. .hen, an attempt was made to arrest Baba /amdev and an apprehension was expressed that there could be some deaths. I

may reproduce here the relevant messages from the 'olice log boo2 to avoid any ambiguity 0 1Cistrict Iet Cate G=.G;.11 %tart .ime G#0""0=# Curatio Call Cetail n GG0GG0## /.@. 4round Mamla mar2et police men are beating the peoples 'h.9(11&(D;G HJCt. %heetal Io.D1(&J'C/

./AI%C/I'.IKI K+ C: Iet Cated G&.G;."G11 from "GG hrs. to GGG hrs. II+K/: C6"D, C6#1, C6#=, C6#" U C6& AIC C6= .7A. .7>N HK,@C :>>. :> A+.>/ #G :II AIC .7> & %7Ks HI@@ B/II4 ABK,. "G '>/%KII>@ >AC7 +/K: .7>I/ '%. .ranscript of C: Iet

110

>xtract of .etra C: Iet of Central Cistrict. Cated G=JG;J11 from G1GG 7rs. to G=GG 7rs. .a2en from the .etra /ecording! C =G "1D C" .he force which is standing outside at .ur2man gate and 4urunana2 Chow2 having gas gun will come inside through BI' gate instantly

1"C ""= C =G C =G

C=G 1"C C" ,nderstood .he operator of gas gun which is send has not reported yet only driver is sitting operator is to be send ?uic2ly. .he officer who has send the gas gun will send the operator, is driver to operate it. Kperator of gas gun is to be send only driver has reached there with gas gun. I don*t have gas gun. %7Ks has already reached inside with staff. 7ow many water canons are there. 111

CO ""=

C =G

1"C "";

C =G

""(

C =G

1" C C =G

""(

C =G

C"

""(

C"

C =G

#G=

C =G

C "&

:adam water canon is outside at BI' gate where i have informed earlier. .his is informed that the force guard DD Bn. C/'+ is neither obeying any instruction and nor ready to come at any cost.

HI/>@>%% @K4 U CIA/N Ct.=6;6"G11 %hift Cuty 9 A: to 9 ': . 6 =" .ime Call Cetail "0"= A: G16.6 Kne in$ured namely 8agat =" :uni sJo ,n2nown /Jo BIII6 'llana /ohta2! 7aryana. Age about ==6;G yrs admitted in 8'I 7ospital in unconscious condition. HI/>@>%% @K4 U CIA/N Ct.&J=6;6"G11 .ime Call Cetail "0"G A: @61GG G61 'C/ Call06 that some casualities happened at /@ 4round. Cirect the ambulance. G61 @61GG Ioted position at /@ 4round "0"D A: G61 @61GG In$ured not .raceable. Cats ambulance also searching in$ured person. HI/>@>%% @K4 U CIA/N Ct.&J=6;6"G11 .ime D A: @61GG

Call Cetail Charge of K6## ta2en by A%I Bed 'ra2ash =1=GJ'C/ 112

G6##

G61

G61

G6##

Iote down that in /@ 4round 'olice is beating the public persons. /oad is bloc2ed through barricades at A$meri 4ate. He can*t leave the vehicle without staff.

HI/>@>%% @K4 U CIA/N Ct.&J=6;6"G11 %hift Iight Cuty D ': to D A:! G 6 ;G .ime 10=D Call Cetail 'olice is misbehaving with Baba /amdev.

G6;G

G61

HI/>@>%% @K4 U CIA/N Ct.J&J=6;6"G11 %hift Iight Cuty D ': to D A:! G P 1G .ime D ': Call Cetail %hift Change and charge ta2en by 7C ,med %ingh Io.D99J'C/ +rom G61G %I 8aspal '% :angol 'uri U Ct. .arun #G#;JCA' sustained in$ury and we are ta2ing them to 8'I 7ospital. G61G told that both %I 8aspal and Ct .arun admitted in 8'I 7ospital through Cuty Ct. A$ay 119=JC.

" am

G61

G61G

".1G

G61

G61G

HI/>@>%% @K4 U CIA/N Ct.&J=6;6"G11 %hift Iight Cuty D ': to DA:! B 6 11 .ime Call Cetail 113

".#G A:

.wo in$ured persons ta2en to 8'I 7ospital namely /a$ Bala wJo 8albeer /Jo 4urgaon, Age6=&, 8agdish sJo Asha Iand, Age6=& yrs. C=G C1"C Both of vehicles is to be send, water canon is only one C=G /ight now only one is as2ed about so send only one. C=G %end one. %end one instantly. If other will be re?uired it will be informed.

"G(

"G( "G(

C1"C C1"C

1"=. .he above entries of the 'olice log boo2 clearly show that a number of persons were in$ured, including 'olice personnel, and some of them even seriously. .he water cannons were not available inside the tent and the same were as2ed to come towards the BI' gate. .hey were only two in number and were as2ed to be positioned at the BI' entrance. In fact, as recorded in one of the above entries, there was only one water cannon available which was positioned at the BI' entry gate and the version of the 'olice that it had first used water cannons for dispersing the crowd before resorting to the use of teargas, does not appear to be correct. .he teargas shells were fired at about "."G a.m. as per the footages of 114

the CC.B cameras and around the same time, the bric2s were thrown by the followers of respondent Io.& upon the 'olice. .his aggravated the situation beyond control and, thereafter, the 'olice acted with greater force and fired more teargas shells and even used lathis to disperse the crowd. 1";. Another aspect reflecting the lacuna in planning of the 'olice authorities for executing such an order at such odd hour is also shown in the log boo2 of the 'olice where at about ".#9 a.m., a conversation between two police officers has been recorded. As per this conversation, it was informed 1Nou call at cellphone and inform "&B that he will also tal2 and that gate towards 8@I :arg which was to be opened is not open yet5. Another conversation recorded

at the same time was 1.hen public will go at its own5. 1"(. Hhen the 'olice had decided to carry out such a big operation of evicting such a large gathering suddenly, it was expected of it to ma2e better arrangements, to cogitate over the matter more seriously and provide better arrangements.

115

1"D. +rom the entries made in the 'olice log boo2, certain acts come to surface. +irstly, that there were inade?uate number of

water cannons, as admittedly, there were more than 1=,GGG persons present at the /amlila :aidan and secondly, that the 'olice had started beating the people. >ven the DD th Bn. of C/'+ was not carrying out the orders and there was chaos at the premises. >ven if all the documents filed by the 'olice, the 'olice log boo2 and the affidavits on behalf of the 'olice are ta2en into consideration, it reflects lac2 of readiness on the part of the 'olice and also that it had not prepared any action plan for enforcing the order of the executive authority passed under %ection 1&& Cr.'.C. It was expected of the 'olice to ma2e elaborate, ade?uate and precise arrangements to ensure safe eviction of such large number of persons, that too, at midnight.

1"9. 7aving dealt with this aspect, now I would proceed to discuss the in$uries suffered and the medical evidence placed before the Court. As per the affidavit of the 'olice dated 1( th 8une, "G11, total #D 'olicemen were in$ured, some of them because of bric2 batting 116

by the supporters of Baba /amdev. &D persons from public were also in$ured, &1 of them were discharged on the same date and = on the next day. Knly " persons, including 1 woman, re?uired Kn the other

hospitali-ation for medical treatment and surgery.

hand, according to respondent no.&, hundreds of persons were in$ured. 7owever, they have placed on record a list of the in$ured persons as Annexure / 61# wherein names of == persons have been given. :ost of the in$ured persons were ta2en to @o2 Iaya2 Copies of their medico legal en?uiry

7ospital, Iew Celhi.

registerJreports have been placed on record. %ome of these in$ured persons were ta2en to the hospital by the 'olice while some of them went on their own. In the medico legal en?uiry register relating to /a$bala, it has been stated that she suffered cervical vertebral fracture and associated spinal cord damage. %he was unable to

move both limbs, upper and lower, and complained of pain in the nec2. %he was treated in that hospital and subse?uently shifted to the IC, where she ultimately died. As per the postmortem report, the cause of death as opined by the doctor was stated as 1Ceath in this case occurred as a %epticemia, following cervical vertebral 117

fracture and associated spinal cord damage5.

In some of the

reports, it is stated that the patient had informed of having suffered in$ury due to stampede at /amlila :aidan. .he person who claims to have brought /a$bala to the hospital, 8oginder %ingh Bandral, has also filed an affidavit stating that the 'olice had suddenly attac2ed from the stage side and she had suffered in$uries and fell unconscious. 1#G. It is undisputed that /a$bala suffered in$uries in this incident. .he in$uries as described in the medical records are as follows06 1@ocal >xamination0 1. /eddish bluish discolouration below and behind @eft ear U discolouration another reddish blue

In @ateral middle of nec2 on present.

@! %ide

". /eddish Bluish Colouration seen below U behind /! ear C #. @arge bluish discolouration present over @eft buttoc2 &. Abrasion over :edical aspects of @eft an2le. =. /eddish discolouration over the aspect of middle of @eft forearm5 flexor

118

1#1. In addition, the medico legal case sheet of one Ceepa2 recorded, 1alleged cJo assault while on hunger stri2e at /amlila :aidan5. 7e was vomiting, bleeding and had suffered in$uries and was complaining of pain at cervical region and right thigh. %imilar was the noting with regard to one A$ay. Both of them had gone to Cr. /am :anohar @ohia 7ospital and were not accompanied by the 'olice. A number of such medico legal case sheets have been I do not consider it

placed on record with similar notings.

necessary to discuss each and every medico legal en?uiry sheet or medico legal report. It is clear from the bare reading of these

reports that most of the persons who were ta2en to the hospital had suffered in$uries on their hands, bac2, thighs etc. and were complaining of pain and tenderness which was duly noticed by the doctors in these reports. 1#". Constable %atpal had also gone to the hospital. According to him, he had suffered in$ury )a contusion* as a result of stone pelting at the /amlila :aidan. Copies of medico legal en?uiry register in relation to other 'olice officers have also been placed on record. %ome 'olice personnel had also reported to Aruna Asif Ali 119

4overnment 7ospital, /a$pura, Civil @ines, Celhi and had given the history of being beaten by the crowd at /amlila :aidan. 1##. +rom these evidence placed on record, it is clear that both, the members of the public as well as the 'olice personnel, had suffered in$uries. It is obvious from various affidavits, that a large number of followers of Baba /amdev got in$ured. .he number of these I

persons was much higher in comparison to that of the 'olice.

may also notice that in the affidavit filed by the Commissioner of 'olice, it has been stated that the 'olice officers suffered in$uries because of bric2 batting by some members of the gathering at /amlila :aidan. 7owever, the affidavit of the Commissioner of

'olice is totally silent as to how such a large number of persons suffered in$uries, including plain in$uries, cuts, open in$uries and serious cases li2e those of /a$bala and 8agat :uni. According to respondent Io.&, at least five persons had suffered serious in$uries including head in$ury, fracture of hand, leg and bac2bone. .his

included Charamveer, :adanlal Arya, 8agdish, Behen /a$bala, %wami Agnivesh and 8agat :uni, etc.

120

1#&. If this medico legal evidence is examined in light of the photographs placed on record and the CC.B camera footages, it becomes clear that these in$uries could have been caused by lathi charge and throwing of stone by the 'olice as well as the members of the gathering. It cannot be doubted that some members of the 'olice force had ta2en recourse to lathi charge and in the normal course, a blow from such lathis could cause the in$uries, which the members of the public had suffered. 1#=. I have no hesitation in re$ecting the submission on behalf of the 'olice that none of the police personnel lathi charged the people present at /amlila :aidan. .he factum of lathi charge by some of

the police personnel is demonstrated in the photographs, footages of CC.B cameras as well as from the medical evidence on record. Kne Cr. 8asbir has filed an affidavit stating that he had made a call from his Cell 'hone Io. 9D1D(;=;&1 to Io. 1GG informing them of 'olice assaulting the persons present and the fact that he suffered in$ury as a result of lathi blows on his body. 7e had gone to @o2 .his medical

Iaya2 7ospital where he was medically examined.

record shows that he was assaulted by the 'olice in Baba /amdev*s 121

rally where he sustained in$uries.

.he in$uries were described as

contusion in$uries, one of which, on the lumber region and was advised x6ray. >ven in some of the other medical records produced before this Court, it has been recorded that in$uries were caused by blunt ob$ects. .his will go to show that they were not the in$uries .he veracity of this

caused merely by fall or simply stampede.

affidavit was challenged on the ground that it has been filed belatedly and it was not supported by any other record. Both

these aspects lose their significance because in the 'olice log boo2 filed on record, call from this number has been shown, secondly, the medical record of Cr. 8asbir has been placed on record. Also, the in$uries received by the members of the 'olice force are of the 2ind which could be caused by bric2 batting. It is further possible that because of commotion, confusion and fear that prevailed at the stage during midnight and particularly when people were sleeping, the in$uries could also have been suffered due to stampede. According to the 'olice, /a$bala probably had suffered the fracture of the cervical as she fell from the stage and fell unconscious. .his version does not find support from the CC.B footages inasmuch as 122

that no elderly lady at all is seen on the stage during the entire episode shown to the Court. But, the fact of the matter is that she suffered serious in$uries which ultimately resulted in her death. It could be that she received in$ury during use of lathis by the 'olice or when the crowd rushed as a result of firing of teargas shells, etc. 1#;. .he 'olice do not appear to have carried her on the stretcher or helped her in providing transportation to the hospital. 'recisely

who is to be blamed entirely and what compensation, if any, she is entitled to receive and from whom, will have to be examined by the court of competent $urisdiction before whom the proceedings, if any, are ta2en by the persons entitled to do so and in accordance with law. Certain disputed ?uestions of fact arise in this regard

and they cannot be decided by the court finally without granting opportunity to the appropriate parties to lead oral and documentary evidence, as the case may be. +or the purposes of the present

petition, it is sufficient for me to note that, prima facie, it was the negligence and a limited abuse of power by the police that resulted in in$uries and subse?uent death of %mt. /a$bala. .hus, in my

considered view, at least some ad hoc compensation should be 123

awarded to the heirs of the deceased and other in$ured persons as well. 1#(. At this $uncture, I would ta2e note of the affidavits filed by the parties. In the affidavit dated ; th 8uly, "G11 filed on behalf of

/espondent Io. &, it has been specifically stated in paragraph 1(0

1It must be noted that as per the directions of the 'olice, only one entryJexit gate was being 2ept open and this gate was manned by the police themselves, who were screening each and every person who entered the premises. .here was no disturbance or altercation whatsoever and followers of Baba /amdev$i were peacefully waiting in ?ueues that stretched for over two 2ilometers. If the 'olice wanted to limit the number of participants to =GGG or to any other number, they could easily have done so at the gate itself. 7owever, they made no attempt to either curtail the entry of persons or to prevent the fast from proceeding.5 1#D. .hough an affidavit subse?uent to this date has been filed on behalf of the 'olice, there is no specific denial or any counter version stated therein in this regard. .his averment made in the affidavit of the /espondent Io.& appears to be correct inasmuch as vide its letter dated "nd 8une, "G11, while granting the permission 124

for holding the rally at /amlila :aidan, a condition had been imposed that all persons entering the /amlila :aidan should be sub$ected to fris2ing and personal search. +urthermore, map of

layout of the /amlila :aidan filed by the learned amicus clearly shows that there was one public entry gateJpublic chec26in, in addition to the two gates for the BI' chec26in, which were towards the stage. .he public entry was towards the %harbia /oad. +rom this, it is clear and goes in line with the situation at the site, exhibited by the photographs or the CC.B Cameras at least partially, that there was only one main entry for the public which was being managed by the 'olice. 1#9. >ven according to the 'olice, it was a huge enclosure of nearly ".= la2h s?. feet and it had various exits which, of course, were 2ept closed and there was a ceiling all over. A tent of this si-e with the ceiling thereon, was an enclosure, where such large number of persons had gathered to participate in the yoga camp and thereafter, in the 8nshan. 1&G. It is the version of the 'olice that they had issued prior warning, then used water cannons and only thereafter, used the 125

teargas shells in response to the bric26batting by the members of the gathering present behind the stage. .his stand of the 'olice

does not inspire confidence. +irstly, it has nowhere been recorded in the CC.B footages that they made any public announcement of the revocation of the permissions and the passing of order under %ection 1&& Cr.'.C. and re?uested the people present to leave the /amlila :aidan. Kf course, it is clear from the record before this Court that effort was made by the 'olice officers, who had a tal2 with the representatives of respondent no. & as well, for service of order on Baba /amdev, who did not accept the order and $umped into the crowd in order to avoid the service of order as well as his exit from the /amlila :aidan. .he stand ta2en by the 'olice in

para "& of its affidavit is that they apprehended a bac2lash if they made the announcements themselves and, therefore, they

approached the organi-ers to inform the public over the 'A system. .his itself is not in accordance with the 4uidelines framed by the 'olice for execution of such orders. .he %tanding Krder #G9

contemplates that there should be display of banner indicating promulgation of %ection 1&& Cr.'.C., repeated use of 'ublic 126

Address system by a responsible officer6appealingJadvising the leaders and demonstrators to remain peaceful and come forward for memorandum, their deputation etc. or court arrest peacefully and re?uires such announcement to be videographed. It further

contemplates that if the crowd does not follow the appeal and turns violent, then the assembly should be declared as unlawful on the 'A %ystem and the same should be videographed. Harning on 'A system prior to use of any 2ind of force is to be ensured and also videographed. I find that there is hardly any compliance to these terms of this %tanding Krder.

1&1. ,se of water cannons by the 'olice is again a myth. As I have already noticed from the 'olice logboo2 there was only one water cannon available which was positioned at the BI' entrance. +urthermore, even the CC.B camera footages or the photographs do not show any use of water cannons. I see no reason for the

'olice for not ma2ing preferential use of water cannons to disperse the crowd even if they had come to the conclusion that it was an

127

unlawful assembly and it was not possible to disperse the crowd without use of permissible force in the prescribed manner.

1&". .here is a serious dispute as to whether the teargas shells were fired in response to the bric26batting by the members of the assembly from behind the stage or was it in the reverse order. .he photographs show that there was a temporary structure behind the stage where bric2s were lying and the same were collected and thrown from there. .he CC.B Camera Io. = clearly shows that followers of Baba /amdev!

some members of the assembly

collected the bric2s and then threw the bric2s at the 'olice towards the stage. .he first teargas shell was fired at about "."G a.m. .he first bric2 probably was thrown from behind the stage by Baba /amdev*s followers approximately at ".1" a.m. .he teargas shells were also fired during this time. Before that, some members of the 'olice force had used stic2s or lathi charged on the people to move them out of the /amlila :aidan. %ome photographs clearly show the 'olice personnel hitting the members of the assembly with stic2s. .he exact time of these incidents is not available on the 128

photographs.

.he

firing

of

teargas

shells

created

greater

commotion and fear in the minds of the members of the gathering. .he violence on the part of the 'olice increased with the passage of time and the 'olice retaliated to the bric2s hurled at them by the members of the assembly with greater anger and force. .his

resulted in in$uries to both sides and serious in$uries to some of the people and resultant death of one of the members of the public.

1&#. .he persons at the realm of affairs of the 'olice force have to ta2e a decision bac2ed by their wisdom and experience whether to use force or exercise greater control and restraint while dispersing an assembly. .hey are expected and should have some freedom of ob$ectively assessing the situation at the site. But in all events, this would be a crucial decision by the concerned authorities. In the present case, the temptation to use force has prevailed over the decision to exercise restraint. /ules /ule 1&.=; of the 'un$ab 'olice

which are applicable to Celhi! provides that the main

principle to be observed is that the degree of force employed shall be regulated according to the circumstances of each case. .he 129

ob$ect of the use of force should be to ?uell the disturbance of peace or to disperse the assembly which threatens such

disturbance and has either refused to disperse or shows a determination not to disperse. %tanding Krder 1=" deals

particularly with the use of tear smo2e in dispersal of unlawful assemblies and processions. .his %tanding Krder concerns with

various aspects prior as well as steps which are re?uired to be ta2en at the time of use of tear smo2e. It re?uires that before tear smo2e action is commenced, a suitable position should be selected for the s?uad, if circumstances permit, forty yards away from the crowd. A regular warning by the officer should be issued while

firing the tear smo2e shells, the speed of wind, area occupied by the crowd and the temper of the crowd, amongst others, should be ta2en into consideration. It states that apparently the ob$ect of use of force should be to prevent disturbance of peace or to disperse an unlawful assembly which threatens such disturbance. 1&&. Iormally, it is not advisable to use tear smo2e shells in an enclosure. .hey should be fired away from the crowd rather than into the crowd. ,nfortunately, the guidelines and even matters of 130

common prudence have not been ta2en into consideration while firing the teargas shells. .he 'olice +orce and, at least, some members of the 'olice +orce, have failed to execute the orders in accordance with the standing orders and have failed to ta2e various steps that were re?uired to be ta2en including use of minimum force, videography of the event, display of banner, announcement into the 'A system etc. %imilarly, some members of the +orce

when incited by provocation or in$ury, used excessive force, including use of teargas. It is also clear from the photographs and the CC.B Cameras that some members of the +orce inflicted in$uries by indulging in uncalled for lathi charge and by throwing stones on the public. It is evident that lathi charge against those persons was not called for. +or example, in one of the CC.B

Cameras, one individual is surrounded by four6five members of the +orce and then a 'olice personnel used canning against that individual. 1&=. I will proceed on the basis that teargas shells were fired in retaliation to the bric26batting by the crowd. >ven in that event, the 'olice should have made proper announcements. .he 'olice 131

had sufficient preparedness to protect itself against such attac2 and they should have fired the teargas shells to the site from where the bric2s were coming rather than in front and on the stage. Knce the teargas shells were fired into the tent where large number of people were present, it was bound to result in in$uries and harm to the public at large. If the authorities had ta2en the decision to

disperse the crowd by use of teargas, then they should have implemented that decision with due care and precautions that they are re?uired to ta2e under the relevant guidelines and /ules. It

was primarily the firing of the teargas shells and use of cane stic2s against the crowd that resulted in stampede and in$uries to a large number of people.

1&;. Admittedly, when the 'olice had entered the tent, the entire assembly was sleeping. It is not reflected in the affidavit of the

'olice as to what conditions existed at that time compelling the authorities to use force. .his, in the opinion of the Court, was a crucial $uncture and the possibility of re?uiring the members of the

132

assembly to disperse peacefully in the morning hours was available with the authorities.

1&(. .his certainly does not mean that throwing of bric2s upon the 'olice by the members of the assembly can be $ustified on any ground. .he few persons who were behind the stage and threw the bric2s, either from the corner of the stage or from behind the stage, are guilty of the offence that they have committed. Iothing absolves them of the criminal liability that entails their actions. >ven if tear smo2e shells were fired by the 'olice first, still the crowd had no $ustification to throw bric2s at the 'olice and cause hurt to some of the 'olicemen. .he 'olice had a duty to 2eep a watch on the people from the point of view of maintaining the law and order. It appears that firing of teargas shells in the direction of the crowd was contrary to the guidelines and it led to some people getting breathless and two of them falling unconscious. .his also

prevented the people present there from reaching the exit gates. %imilarly, some of the followers of respondent no.& became unruly and used smo2e to create a curtain in front of themselves, before 133

they started throwing bric2s at the 'olice.

In the process, they

in$ured their fellow participants as well as the 'olice personnel. .he teargas shells also caused fire on the stage, as is demonstrated in CC.B camera Io. #1 at about "."" a.m., and confirmed by various news report footages. extinguishing systems. It shows that there was lac2 of fire .he teargas shells also caused fire in an

enclosure with cloth material which could have caught fire that might have spread widely causing serious bodily in$uries to the people present. ,ndoubtedly, large 'olice force was present on the site and even if it had become necessary, it could have dispersed the crowd with exercise of greater restraint and patience.

1&D. .he 'olice +orce has failed to act in accordance with the /ules and %tanding Krders. 'rimarily, negligence is attributable to some members of the force. with uncontrolled force. .he 'olice, in breach of their duty, acted .he orders were passed arbitrarily by the

concerned authorities and, thus, they are to be held responsible for the conse?uences in law. As discussed in this $udgment,

respondent Io. &, its members and Baba /amdev committed 134

breach of their legal and moral duty and acted with negligence contributing to the unfortunate incident rendering themselves liable for legal conse?uences resulting therefrom.

1&9. I may further notice that the conduct of the representatives of /espondent Io.&, as well as of Baba /amdev in $umping from the stage into the crowd, while declining to accept the orders and implement them, is contrary to the basic rule of law as well as the legal and moral duty that they were expected to adhere to. .hus, they have to be held guilty of breach of these legal and moral duties as In6uria non e<cusat in6uriam&

1=G. Iow, I may have a loo2 at the genuinenessJvalidity of the )threat perception* which formed the basis for passing of the said orders by the %tateJ'olice. I have referred to this aspect in some detail above and suffice it to note here that till # rd 8une, "G11, none of the authorities had considered it appropriate to revo2e the permission and pass an order under %ection 1&& Cr.'.C. Kn the contrary, the authorities had re?uired the organi-ers to ta2e more stringent measures for proper security. .hey had also drawn a 135

proper deployment plan.

It appears that failure of negotiations

between the 4overnment and Baba /amdev at 7otel Claridges on #rd 8une, "G11, left its shadow on the decision6ma2ing power of the 'olice. .his proved to be the turning point of the entire episode. If the 'olice had apprehended that large number of persons may assemble at the /amlila :aidan, this could have been foreseen as a security threat. .herefore, the proper method for the authorities would have been to withdraw the permissions well in time and enforce them peacefully. It has been left to the imagination of the Court as to what were the circumstances that led to passing of orders revo2ing permission and particularly when even the :CC had not cancelled or revo2ed its permission in favour of

/espondent Io.& to continue with its activity till "G th 8une, "G11. 4reat emphasis was placed, on behalf of the 'olice, upon the fact that the representatives of /espondent Io.& had not given the correct information to the 'olice. .his again does not describe the correct state of affairs. .he Intelligence Agencies had given all

re?uisite information to Celhi 'olice and after ta2ing the same into consideration, Celhi 'olice had passed orders on " nd and #rd 8une, 136

"G11 re?uiring the organi-ers to ta2e certain precautionary steps. Another interesting fact, that I must notice, is that as early as on "Gth :ay, "G11, representatives of /espondent Io. & had written to the Additional Commissioner of 'olice vide Annexure /# informing them that Baba /amdev is going on a hunger stri2e till death from &th 8une, "G11 against the issue of corruption and other related serious issues. 7undreds of sat%a(rahis were providing their

support to him in this hunger6stri2e and consent for that was as2ed. .he letter written by Baba /amdev to the 'rime :inister of the country had also been attached along with this letter. .he

'olice was aware of the number of persons who might assemble and the activity that was li2ely to be carried on at /amlila :aidan as well as 8antar :antar. %till, after the receipt of the letter, the 'olice too2 no steps to cancel the permission specifically and the permissions granted continued to be in force. It was for the police authorities or the administration to place on record the material to show that there was a genuine threat or reasonable bias of communal disharmony, social disorder and public tran?uility or harmony on the night of &th 8une, "G11. 7owever, no such material 137

has been placed before this Court. /ight from

a!ulal "arate

supra!, this Court has ta2en a consistent view that the provisions of %ection 1&& Cr.'.C. cannot be resorted to merely on imaginary or li2ely possibility or li2elihood or tendency of a threat. It has not to be a mere tentative perception of threat but a definite and substantiated one. I have already recorded that none of the

concerned authorities, in their wisdom, had stated that they anticipated such disturbance to public tran?uility and social order that there was any need for cancellation of the permissions or imposition of a restriction under %ection 1&& Cr.'.C. as late as till 1G.&G p.m. on &th 8une, "G11, which then was sought to be executed forthwith.

1=1. .here is a direct as well as implied responsibility upon the 4overnment to function openly and in public interest. >ach citi-en of India is entitled to enforce his fundamental rights against the 4overnment, of course, sub$ect to any reasonable restrictions as may be imposed under law. .he 4overnment can, in larger public interest, ta2e a decision to restrict the enforcement of freedom, 138

however, only for a valid, proper and $ustifiable reason. decision cannot be arbitrary or capricious.

%uch a

1=". Another important facet of exercise of such power is that such restriction has to be enforced with least invasion. I am unable to understand and, in fact, there is nothing on record which explains the extra6ordinary emergency that existed on midnight of & thJ=th 8une, "G11 which led the police to resort to wa2ing up sleeping persons, throwing them out of the tents and forcing them to disperse using force, cane stic2s, teargas shells and bric26batting. I am also unable to understand as to why this enforcement could not even wait till early next morning i.e. = th 8une, "G11. .his is a very crucial factor and the onus to $ustify this was upon the %tate and the 'olice and I have no hesitation in noticing that they have failed to discharge this onus. .his decision, whether ta2en by the 'olice itself or, as suggested by the learned amicus, ta2en at the behest of the people in power and the :inistry of 7ome Affairs, was certainly amiss and a decision which is arbitrary and

unsustainable, would remain so, irrespective of the number of 139

persons or the hierarchy of the persons in the 4overnment who have passed the said decision. I find no error with the 'olice, to wor2ing in tandem or cooperation with the :inistry of 7ome Affairs, which itself is responsible for maintaining the law and order in the country. I also have to notice that as per the stand ta2en by all the parties before this Court, it remains a fact that no announcement was made on the midnight of & thJ=th 8une, "G11 to the huge gathering sleeping to disperse peacefully from the /amlila :aidan. It was an obligation of the 'olice to ma2e repeated .he 'olice,

announcements and help the people to disperse.

admittedly, did not ma2e any such announcements because it anticipated a bac2lash. Baba /amdev and other representatives of /espondent Io. & also did not ma2e such an announcement, but Baba /amdev asserted that he would leave only if the people and the followers wanted him to leave. I am unable to appreciate this 2ind of attitude from both sides. It was primarily an error of

performance of duty by both sides and the ultimate sufferer was the public at large.

140

1=#. It is true and, without hesitation, I notice that the CC.B cameras and other documents do show that some of the 'olice personnel had behaved with courtesy and 2indness with the members of the gathering and had even helped them to disperse and leave the /amlila :aidan. At the same time, some others had misbehaved, beaten the people with brutality and caused in$uries to the public present at the /amlila :aidan. .hus, I cannot blame the entire 'olice +orce in this regard.

1=&. .he learned amicus raised another issue that the 7ome %ecretary, ,nion of India and the Chief %ecretary, Celhi had not filed proper affidavits in relation to the incident. In fact, the 7ome %ecretary did not file any affidavit till this was raised as an issue by the learned counsel appearing for /espondent Io.&. +actually, it is correct. .he affidavits filed by the Chief %ecretary, Celhi as well as the 7ome %ecretary are not proper in their form and content. .he 7ome %ecretary, on the one hand stated that he had ta2en charge of the post with effect from "1 st 8uly, "G11, while, on the other, admitted that he had received the report from the %pecial 141

Commissioner of 'olice. 7e further stated that it is not the practice of the :inistry to confirm the grant of such permission. 7is

affidavit is at variance with the affidavit of the 'olice Commissioner. According to him, the entry of large number of persons posed a threat to the gathering, such as, li2ely stampede and entry of unruly elements into the crowd. Both these circumstances, as

noticed above, do not stand even remotely to reason. +urther, I am somewhat surprised at the insensitivity reflected in the following lines stated in the affidavit of the 7ome %ecretary, )I state and submit that the facts suggest that the in$uries to a few out of thousands gathered as per report! are said to have been caused due to minor stampede and that there was no manhandling of women, elderly persons or children. .here were G# women 'olice officers of the ran2 of Ceputy Commissioner of 'olice on duty*. I have no hesitation in observing that it is the duty of the %tate to ensure that each and every citi-en of the country is protected. %afety of his person and property is the obligation of the %tate and his right. In view of the affidavit filed by the 'olice Commissioner, where he has owned the entire responsibility for the entire 'olice 142

hierarchy, I do not propose to attach much significance to this contention. According to the Commissioner, he informed the

Additional %ecretary in the :inistry of 7ome Affairs of the developments and the latter might have informed the higher authorities in the said :inistry. I also find no need to enter into this controversy because there is no legal impediment or infirmity in Celhi 'olice wor2ing in coordination and consultation with the :inistry of 7ome Affairs as none of them can absolve themselves of the liability of maintaining social order, public tran?uility and harmony.

1==. :r. '.7. 'are2h, learned senior advocate appearing for the 4overnment of IC. Celhi, submitted that the power to issue an order under %ection 1&& Cr.'.C. is vested in the Assistant Commissioner of 'olice in terms of notification dated 9 th %eptember, "G1G issued by the :inistry of 7ome Affairs, 4overnment of India under sub6section 1! a! of %ection 1( of the C' Act. It is further submitted that in terms of Article "#9AA #! a!, the @egislative Assembly of the IC. Celhi has legislative competence to enact laws 143

on any matter as applicable to the ,nion .erritory except in relation to fields stated at >ntries 1, " and 1D of @ist II of the %eventh %chedule to the Constitution of India. .hus, the matters relating to 'olice, land and public order do not fall within the legislative and administrative power of the 4overnment of IC. Celhi. .he 7ome %ecretary, in his affidavit, on the other hand, has stated that the :inistry of 7ome Affairs neither directed nor is consulted by Celhi 'olice in such 'olice measures which are to be ta2en with a view to 2eep the law and order situation under control. 7e also stated that it is not the practice of the :inistry to confirm the matters of grant of such permissions. I am unable to see any merit in these submissions or for that matter even the purpose of such submissions. .he :inistry of 7ome Affairs, Celhi 4overnment and the 'olice are not at cross purposes in relation to the ?uestions of social order and law and order. It is their

cumulative responsibility. .he lists in the %eventh %chedule to the Constitution are fields of legislation. .hey are unconnected with .he :inistry of 7ome

the executive action of the present 2ind.

Affairs, ,nion of India is not only responsible for maintaining the 144

law and order but is also the supervisory and controlling authority of the entire Indian 'olice %ervices. It is the duty of the ,nion to 2eep its citi-ens secure and protected. .hus, I consider it

unnecessary to express any view on this argument advanced by :r. '.7. 'are2h. T.' 18-,' -4 $& -(2'( +$2' *&2'( S'8%/-& 144 C(.P.C.! /%1 /+,7/8$%/-&1 $&2 /&4/(+/%/'1 #/%. ('4'('&8' %- %.' 4$8%1 -4 %.' 8$1' /& .$&2 1=;. By reference to various $udgments of this Court at the very outset of this $udgment, I have noticed that an order passed in anticipation by the :agistrate empowered under %ection 1&& Cr.'.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 $udicial 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 re?uiring a person to abstain from doing certain acts or ta2e certain actionsJorders with respect to certain properties in his possession, if the officer 145

considers that such an order is li2ely to prevent or tends to prevent obstruction, annoyance or in$ury to any other person. Kn the bare reading of the language of %ection 1&& Cr.'.C., it is clear that the entire basis of an action under this %ection 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 tran?uility. In the case of *ulam 8!!as v. State of Uttar "radesh 9AI/ 19D1 %C "19D<, the Court clearly stated that preservation of public peace and tran?uility is the primary function of the 4overnment and the aforesaid power is conferred on the executive. In a given situation, a private right must give in to public interest. 1=(. .he Constitution mandates and every 4overnment is

constitutionally committed to the idea of socialism, secularism and public tran?uility. .he regulatory mechanism contemplated under

different laws is intended to further the cause of this constitutional obligation. An order under %ection 1&& Cr.'.C., though primarily

empowers the executive authorities to pass prohibitory orders vis6 V6vis a particular facet, but is intended to serve larger public 146

interest.

/estricted dimensions of the provisions are to serve the

larger interest, which at the relevant time, has an imminent threat of being disturbed. .he order can be passed when immediate .he legislative intention

prevention or speedy remedy is desirable.

to preserve public peace and tran?uility without lapse of time, acting urgently, if warranted, giving thereby paramount importance to the social needs by even overriding temporarily, private rights, 2eeping in view the public interest, is patently inbuilt in the provisions under %ection 1&& Cr.'.C. 1=D. 'rimarily, the :CC owns the /amlila :aidan and, therefore, is holding this property as a public trustee. .he :CC had given

permission to use the /amlila :aidan for holding %o(a shivir and allied activities with effect from 1 st 8une, "G11 to "Gth 8une, "G11. .he 'olice had also granted permission to organi-e the %o(a training session at /amlila :aidan for the same period vide its letter dated "=th April, "G11. .he permission was granted sub$ect

to the conditions that there should not be any obstruction to the normal flow of traffic, sufficient number of volunteers should be deployed at the venue of the training camp, permission should be 147

sought from the land owning agency and all other instructions that may be given by the 'olice from time to time should be implemented. any time. 1=9. Bide letter dated "(th :ay, "G11, the Ceputy Commissioner of 'olice, Central Cistrict, had sought clarification from the 'resident of respondent Io. & that the permission had been granted only for holding a %o(a training camp for &GGG to =GGG persons, but the posters and pamphlets circulated by the said respondent indicated that they intended to mobili-e "=,GGG persons to support Baba /am Cev*s indefinite fast at /amlila :aidan, which was contrary to the permission sought for. /espondent Io. &, vide letter dated "D th :ay, "G11, reiterated and re6affirmed its earlier letter dated "G th April, "G11 and stated that there would be no programme at all, except the residential %o(a camp. Meeping in view the facts and @astly, that such permission could be revo2ed at

the attendant circumstances, the Ceputy Commissioner of 'olice Central Cistrict! vide his letter dated 1 st 8une, "G11, informed the office bearers of respondent Io. & that in view of the current scenario and the law and order situation prevailing, they were 148

re?uired to ma2e ade?uate arrangements for screening of people visiting the /amlila :aidan for %o(a shivir and directed further arrangements to be made as per the instructions contained in that letter. It was noticed in the letter of the CC' that a speciali-ed tent of an area of ",=G,GGG s?. ft. was to be erected, a dais was to be constructed and structures erected were to be duly certified from the authori-ed agency. It was also, inter alia$ stated that no

provocative speech or shouting of slogan should be allowed and no fire arms, lathis or swords should be allowed in the function and CC.B cameras should also be installed. It was further stated that the .rust was to abide by all the directions issued by the %7K. Again, on "nd 8une, "G11, a letter was written by the Ceputy Commissioner of 'olice noticing certain drawbac2s in the

arrangements made by the .rust and reiterating the directions passed vide letter dated 1st 8une, "G11. It was re?uired that the .rust should 2eep the gathering within the permissible limits and ma2e necessary arrangements for chec2ingJfris2ing of participants and placing of volunteers in re?uisite areas. It was also indicated that if the compliance is not made, permission shall be sub$ect to 149

review.

Certain inputs given by the %pecial Branch of Celhi 'olice

on #Gth :ay, "G11 stated that Baba /amdev planned to hold indefinite hunger stri2e along with #G,GGG to #=,GGG supporters with effect from &th 8une, "G11, the birth anniversary of :aharana 'ratap, at the /amlila :aidan. on the following issues0 11. .o bring the blac2 money worth /s. for &GG la2hs crores, which is national property. ". .o demand the legislation of strong @o2pal Bill to remove corruption completely. #. /emoval of foreign governing system in independent India so that everyone can get social and economic $ustice.5 As per that report, the protest was

1;G. It was further stated that the gathering may exceed 1 la2h. .he letter also indicated that some of the wor2ers would straightaway reach 8antar :antar on &th 8une, "G11 and would submit memorandum to the 'resident and the 'rime :inister of India. >xpressing the apprehensions on these outputs, it was

indicated in the /eport as under06

150

1.he volunteers of the said organi-ations are well dedicated, tech savvy and using @aptops in their routine wor2ing, with sound financial status of the organi-ation, the possibility of the gathering of about 1 la2h, as claimed by the organi-ers, cannot be ruled out. Any minor incident at the venue not only may affect law and order situation but also may affect peace in the city creating serious law and order problems. @ocal 'olice, therefore, will have to be extra vigilant. .he possibility of some agent provocation or subversive elements attempting to cause disturbanceJsabotage by merging with the crowds would also need to be 2ept in mind. It should also be noted that as per reliable inputs, large congregations continue to remain the top targets of terrorists.5 1;1. .he %pecial Branch, thus, suggested ta2ing of some

precautions li2e ma2ing of ade?uate security arrangements by the local 'olice, deployment of ?uic2 response teams, ambulances, fire tenders, etc. and to deploy sufficient number of traffic 'olice personnel to ensure smooth flow of traffic around /a$ 4hat /ed @ight, /amlila :aidan etc. and concluded as under06 1.herefore, a sharp vigil, ade?uate arrangements by local police, 'C/, .raffic 'olice are suggested at and near /amlila 4round, /.%. +ly6over, enroute, 8antar :antar 151

to avoid any untoward incident. +urther, Celhi6,'J7aryana Borders need to be sensiti-ed.5 1;". As is obvious from the above letters and the reports, nobody had suggested cancellation of the permission granted by the land owning authority or the 'olice for continuation of the activity by respondent Io. &, though they were aware of all the facts. .he

Central Cistrict of Celhi 'olice, on " nd 8une, "G11 itself, noticed all the factors and made a report with regard to the 'olice arrangements at the /amlila :aidan. the following ob$ectives06 11.All the persons will gain entry through C+:Cs. ". >very person will be searchedJfris2ed thoroughly to ensure the security of BI'sJhigh dignitaries, 4ovt. property and general public etc. #. .o ensure clear passage to BI's and their vehicles with the assistance of traffic police. &. .o ensure that the function is held without interruption. =. .o 2eep an eye on persons moving in suspicious circumstances. 152 Amongst others, it stated

;. Brief6cases, lighters, matches, bags, umbrellas, tiffin6boxes etc. be prohibited to be ta2en by the audience inside the ground. %pecial attention will be paid on minor crac2ers, inside the ground. (. .he area of responsibility will be thoroughly chec2ed by the RonalJ%ector officers. D. .o maintain law and order during the function.5 1;#. In this report itself, it had wor2ed out the details of deployment, patrolling, timing of duties, supervision and assembly points etc. In other words, on " nd 8une, "G11, the 'olice, after

assessing the entire situation, had neither considered it appropriate to cancel the permissions nor to pass an order under %ection 1&& Cr.'.C. Kn the basis of the input reports, the 8oint Ceputy

Cirector, Criminare, had as2ed for proper security arrangements to be made for Baba /amdev in furtherance to which the security of Baba /amdev was upgraded. 1;&. In furtherance to the permission granted, the %o(a shivir was held and a large number of persons participated therein. All went well till #rd 8une, "G11 and it is nobody*s case before the Court that 153

any conditions were violated or there was any threat, much less imminent threat, to public peace and tran?uility. carried its activities for those days. 1;=. As already noticed, Baba /amdev had also been granted permission to hold a hunger stri2eJ Sat%a(rah at the 8antar :antar on &th 8une, "G11. .he restriction placed was that it should be +urther, vide letter dated "; th :ay, .he %o(a camp

with a very limited gathering.

"G11, the 'olice had reiterated that the number of persons accompanying Baba /amdev should not exceed "GG. 7owever, vide letter dated &th 8une, "G11, the permission granted in relation to holding of dharna at 8antar :antar was revo2ed, in view of the security, law and order reasons and due to the large gathering exceeding the number mentioned in the permission given. @ater,

on &th 8une, "G11, the permission to organi-e %o(a training camp at the /amlila :aidan was also cancelled. 1;;. It was stated that the activity being in variation to the permission granted and in view of the security scenario of the capital city, it may be difficult for the 'olice to maintain public 154

order and safety.

.he organisers were further directed that no

followerJparticipant should assemble at the venue or should hold hoardings etc., on that very date, an order under %ection 1&& Cr.'.C. was passed. .he order recited that an information had

been received that some people, groups of people may indulge in unlawful activities to disturb the peace and tran?uility in the area of %ub6Civision Mamla :ar2et, Celhi and it was necessary to ta2e speedy measures in this regard to save human life, public order safety and tran?uility. .his order was to remain in force for a

period of ;G days from the date of its passing. 1;(. Curing the course of hearing, it was pointed out before this Court that the order withdrawing the permission was passed at 9.#G p.m. At 1G.#G p.m., the 'olice went to inform the

representatives of respondent Io. & about the withdrawal of permission and subse?uently an order under %ection 1&& Cr.'.C. was passed at about 11.#G p.m. .he 'olice force arrived at the site at about 1.GG a.m. and the operation to disperse the crowd started at 1.1G a.m. on the midnight of &thJ=th 8une, "G11.

155

1;D. It was contended by :r. 7arish %alve, learned senior counsel, that the decision to withdraw permission is an administrative decision ta2en with political influence. .he 'olice is to wor2 in co6

ordination with the 4overnment, including the concerned :inistry and the ,nion. .he order, being an executive order, has been

passed !ona fide and 2eeping in view the larger public interest and it is open to respondent Io. & or the affected parties to challenge the said order in accordance with law. It was also urged that this Court may not deal with the merits of the said order, as there is no challenge to these orders. .here is no specific challenge raised by

respondent Io. & and for that matter by any affected party to the orders of withdrawal of permission and imposition of restrictions under %ection 1&& Cr.'.C. In this view of the matter, it may not be necessary for this Court to examine these orders from that point of view. But the circumstances leading to passing of these orders and the necessity of passing such orders with reference to the facts of the present case is a matter which has to be examined in order to arrive at a final conclusion, as it is the imposition of these orders that has led to the unfortunate occurrence of & th 8une, "G11. 156

.herefore, while leaving the parties to challenge these orders in accordance with law, if they so desire, I would primarily

concentrate on the facts leading to these orders and their relevancy for the purposes of passing necessary orders and directions. 1;9. .hough the :CC is the owner of the property in ?uestion, but still it has no role to play as far as maintenance of law and order is concerned. .he constitutional protection available to the citi-ens

of India for exercising their fundamental rights has a great significance in our Constitution. Article 1# is indicative of the

significance that the framers of the Constitution intended to attach to the fundamental rights of the citi-ens. >ven a law in derogation

of the fundamental rights, to that extent, has been declared to be void, sub$ect to the provisions of the Constitution. .hus, wherever

the %tate proposes to impose a restriction on the exercise of the fundamental rights, such restriction has to be reasonable and free from arbitrariness. It is for the Court to examine whether

circumstances existed at the relevant time were of such imminent and urgent nature that it re?uired passing of a preventive order within the scope of %ection 1&& Cr.'.C., on the one hand, and on 157

the other, of imposing a restriction on exercise of a fundamental right by respondent Io.& and persons present therein by

withdrawing the permissions granted and enforcing dispersal of the gathering at the /amlila :aidan at such odd hour. At this stage, it will be useful for me to notice another aspect of this case. Baba

/amdev is stated to have arrived in Celhi on 1 st 8une, "G11 and four senior ministers of the ,'A 4overnment met him at the Airport and attempted to persuade him to give up his 8nshan in view of the 4overnment*s initiative on the issue that he had raised. >fforts

were made to dissuade him from going ahead with his hunger stri2e on the ground that the 4overnment was trying to find pragmatic and practical solution to tac2le the agitated issue. .hereafter, as already noticed, a meeting of the ministers and Baba /amdev was held at 7otel Claridges. 7owever, this meeting was not successful and certain differences remained unresolved

between the representatives of the 4overnment and Baba /amdev. Conse?uently, Baba /amdev decided to continue with his public meeting and hunger stri2e. >mphasis has been laid on a 'ress

/elease from the :inistry of 7ome Affairs stating that a decision 158

was ta2en that Baba /amdev should not be allowed to organi-e any protest and, if persisted, he should be directed to be removed from Celhi. 1(G. .hese circumstances have to be examined in con$unction with the stages of passing of the orders under %ection 1&& Cr.'.C. in relation to the withdrawal of permission. Hithout commenting

upon the Intelligence reports relied upon by the 'olice, the Court cannot lose sight of the fact that even the intelligence agency, the appropriate ?uarters in the 4overnment, as well as the 'olice itself, had neither recommended nor ta2en any decision to withdraw the permission granted or to pass an order under %ection 1&& Cr.'.C., even till #rd 8une, "G11. Kn the contrary, after ta2ing into

consideration various factors, it had upgraded the security of Baba /amdev and had re?uired the organi-ers, respondent Io.&, to ta2e various other measures to ensure proper security and public order at /amlila :aidan. 1(1. It is nobody*s case that the directions issued by the appropriate authority as well as the 'olice had not been carried out by the organisers. It is also nobody*s case that the conditions 159

imposed in the letters granting permission were breached by the organisers at any relevant point of time. >ven on # rd 8une, "G11,

the Ceputy Commissioner of 'olice, Central Cistrict, who was the officer directly concerned with the area in ?uestion, had issued a restricted circular containing details of the arrangements, the ob$ectives and the re?uirements which the deployed forces should ta2e for smooth organi-ation of the camp at /amlila :aidan. .he

threat of going on a hunger stri2e extended by Baba /amdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest

which has been accepted, both historically and legally in our constitutional $urisprudence. .he order passed under %ection 1&&

Cr.'.C. does not give any material facts or such compelling circumstances that would $ustify the passing of such an order at 11.#G p.m. on &th 8une, "G11. .here should have existed some

exceptional circumstances which reflected a clear and prominent threat to public order and public tran?uility for the authorities to pass orders of withdrawal of permission at 9.#G p.m. on & th 8une, "G11. Hhat weighed so heavily with the authorities so as to 160

compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. Hhatever circumstances have been

detailed in the affidavit are, what had already been considered by the authorities concerned right from "= th :ay, "G11 to #rd 8une, "G11 and directions in that behalf had been issued. >xercise of

such power, declining the permission has to be in rare and exceptional circumstances, as in the normal course, the %tate would aid the exercise of fundamental rights rather than frustrating them. 1(". Another argument advanced on behalf of respondent Io. & by :r. /am 8ethmalani is that the Krder under %ection 1&&, Cr.'.C. is a fraud upon law as it is nothing but abdication of its authority by 'olice at the command of the 7ome :inister, :r. '. Chidambaram, as is evident from his above6referred statements. According to

him, the Krder under %ection 1&& Cr.'.C., on the one hand, does not contain material facts while on the other, issues no directions as contemplated under that provision. +urther it is contended that the Intelligence inputs as communicated to the 'olice authorities 161

vide letter dated #rd 8une, "G11 had not even been received by the AC'. 1(#. .here is some substance in this submission of :r. /am 8ethmalani. It is clear from Annexure )8* annexed to the affidavit

of the 'olice Commissioner that the letter of the 8oint Ceputy Cirector dated #rd 8une, "G11 referring to threat on Baba /amdev and as2ing the police to review and strengthen the security arrangements, was actually received on ; th 8une, "G11 in the Kffice of the Commissioner of 'olice and on ( th 8une, "G11 in the Kffice of the 8oint Commissioner of 'olice. 1(&. .hus, it could be reasonably inferred that this input was not within the 2nowledge of the officer concerned. I do not rule out the possibility of the Intelligence sources having communicated this input to the 'olice authorities otherwise than in writing as well. But that would not ma2e much of a difference for the reason that as already held, the Krder under %ection 1&& Cr.'C does not contain material facts and it is also evident from the bare reading of the Krder that it did not direct Baba /amdev or respondent Io. & to ta2e certain actions or not ta2e certain actions which is not only 162

the purpose but is also the ob$ect of passing an Krder under %ection 1&&, Cr.'.C. 1(=. :r. 7arish %alve, learned senior counsel, also contended that the police had neither abdicated its functions nor acted mala fide. .he 'olice had ta2en its decisions on proper assessment of the situation and !ona fide. .wo further affidavits dated 9th 8anuary, "G1" and 1Gth 8anuary, "G1" were filed on behalf of the 'olice. .hey were filed by the Additional Ceputy Commissioner of 'olice, Central Cistrict and %pecial Commissioner of 'olice, @aw and Krder, Celhi. .hese affidavits were filed primarily with an effort to clarify the details of the log boo2, the position of water cannons, entries and exit of the tent and number of 'C/ vans, ambulances arranged for evacuation of the gathering. +or example, in the log

boo2 dated =th 8une, "G11 at ".1& am, details have been mentioned, )'olice is arresting to Baba /amdev in which death can be caused*. It is stated that this was not the conversation between two 'olice officers as such but one Bipen Batra, who possessed the telephone D1#GD;D="; had rung up. .he 'C/ of the 'olice

informed them of the above fact. .his, in turn, was communicated 163

by Constable Io.D"(; of the 'C/ to the 'olice %tation. %imilarly, on =th 8une, "G11 at #0""0=#, another call was received by Constable %heetal Io.D1(& 'C/ from the phone of one %hri Chander :ohan stating that policemen were beating people in /amlila 4round. .hese explanations may show that it were the

messages received by the 'C/ vans from private people who had left /amlila 4round but there is nothing on record to show that these messages or reports to the 'C/s were false. In fact, such

calls go to substantiate what has been urged by the learned amicus. .he affidavits do not improve the case of the 'olice any further. As far as the ?uestion of mala fides is concerned, I have held that this action or order was not mala fide. 1(;. Another important aspect which had been pointed out during the course of hearing is that even the map annexed to this affidavit of the 'olice supports what has been stated on behalf of respondent Io.& that there was only one main entry and exit for the public. .he BI' entrance and BBI' entrance cannot be construed as entrance for the common man. .he other exits were not

operational owing to commotion, goods lying, fire of tear gas shells 164

and standing of vehicles outside which were not permitted to move. .his itself is a factor that goes to show that preparedness on the part of the 'olice was not complete in all respects and also that it was not the appropriate time to evict people from the /amlila 4round. 1((. In the affidavit filed by the 'olice, it has been stated that as a large number of persons were expected to gather on the morning of =th 8une, "G11, it was inevitable for the authorities of the %tate to enforce the execution of the order under %ection 1&& Cr.'.C. and the withdrawal of permission at the midnight itself. It is also

averred that respondent Io. & had made certain misrepresentations to the authorities. Cespite ?uery from the authority, they had

incorrectly informed that only a %o(a camp will be held at the premises of /amlila :aidan, though Baba /amdev had planned to commence his hunger stri2e from & th 8une, "G11 at that place in presence of large gathering. 1(D. .his argument, in my view, does not advance the case of the 'olice any further as Baba /amdev had already started his fast and he, as well as all his followers, were peacefully sleeping when these 165

orders were passed and were sought to be enforced against them. .he .rust might not have given the exact and correct information to the 'olice but the 'olice already had inputs from the Intelligence Agencies as well as 2nowledge on its own that a hunger stri2e, in presence of large number of people, was to start from & th 8une, "G11, which, in fact, did start. 1(9. +rom the record before this Court, it is not clear as to why the %tate did not expect obedience and cooperation from Baba /amdev in regard to execution of its lawful orders, particularly when after withdrawal of the permission for holding dharna at 8antar :antar, Baba /amdev had accepted the re?uest of the 'olice not to go to 8antar :antar with his followers. .he attendant circumstances

appearing on record as on #rd 8une, "G11 did not show any intention on their part to flout the orders of the authorities or to cause any social disorder or show threat to public tran?uility by their action. which could .he doubts reflected in the affidavits were matters have been resolved or clarified by mutual

deliberations, as it was done in the past. .he directions issued to respondent Io.& on 1 st 8une, "G11 were to ensure proper security 166

of all concerned. :aterial facts, imminent threat and re?uirement for immediate preventive steps should exist simultaneously for passing any order under %ection 1&& Cr.'.C. .he mere change in the purpose or in the number of persons to be gathered at the /amlila :aidan simplicitor could hardly be the cause of such a grave concern for the authorities to pass the orders late in the night. In the %tanding Krder issued by the 'olice itself, it has been clarified that wherever the gathering is more than =G,GGG, the same may not be permitted at the /amlila :aidan, but they should be offered Burari ground as an alternative. .his itself shows that the attempt on the part of the authorities concerned should be to permit such public gathering by allotting them alternative site and not to cancel such meetings. .his, however, does not seem to

further the case of the %tate at all inasmuch as, admittedly, when the order was passed and the 'olice came to the /amlila :aidan to serve the said order, not even 1=,GGG to "G,GGG people were stated to be present in the shamianaJtent. In these circumstances, it

appears to me that it was not necessary for the executive authorities and the 'olice to pass orders under %ection 1&& Cr.'.C. 167

and withdraw the permissions. mutual deliberation and

.he matter could be resolved by by the appropriate

intervention

authorities. 1DG. In view of the affidavits having been filed on behalf of /espondent Io.#, a person of the ran2 of Commissioner of 'olice, Celhi, wherein he has owned the responsibility for the events that have occurred from 1st 8une, "G11 to &thJ=th 8une, "G11, there is no reason for this Court to attribute any motive to the said officer that he had wor2ed and carried out the will of the people in power. 1D1. At the very commencement of hearing of the case, I had made it clear to the learned counsel appearing for the parties that the scope of the present petition is a very limited one. .his Court

would only examine the circumstances that led to the unfortunate incident on &th 8une, "G11, its conse?uences as well as the directions that this Court is called upon to pass in the peculiar facts and circumstances of the case. .herefore, it is not necessary for this Court to examine certain contentions raised or sought to be raised by the parties as the same may more appropriately be raised 168

in an independent challenge to such orders or claim such other reliefs as they may li2e to claim by initiating appropriate legal proceedings. 1D". .his ta2es me to an ancillary but pertinent ?uestion in context of the said )discretion*, that is exercisable with regard to the )threat perception*, for the purposes of passing an order under %ection 1&& of the Cr.'.C. .he activities which, though unintended have a

tendency to create disorder or disturbance of public peace by resorting to violence, should invite the appropriate authority to pass orders ta2ing preventive measures. .he intent or the expected threat should be imminent. %ome element of certainty, therefore, should be traceable in the material facts recorded and the necessity for ta2ing such preventive measures. .here has to be an ob$ective application of mind to ensure that the constitutional rights are not defeated by sub$ective and arbitrary exercise of power. .hreat

perception is one of the most relevant considerations and may differ as per the perspective of different parties. In the facts of the

present case, the 'olice have its own threat perception while the .rust has its own point of view in that behalf. As already noticed, 169

according to the 'olice, Baba /amev wanted to do 8nshan$ after the negotiations with the 4overnment had failed, which was not the purpose for which the permission had been granted. .here was a possibility of the number of persons swelling upto =G,GGG or more. .here could also be possibility of communal tension as well as a threat to Baba /amdev*s life. .hese apprehensions are sought to be dispelled by learned 8micus curiae stating that this

protestJdharnaJanshan is a right covered under the freedom of speech. .he /amlila :aidan has the capacity of =G,GGG, which

number, admittedly, was never reached and the doubts in the minds of the authority were merely speculative. .he security

measures had been baffed up. Baba /amdev had been given RS security and, therefore, all the apprehensions of the authorities were misplaced, much less that they were real threats to an individual or to the public at large. .he perception of the .rust was that they were carrying on their anshan and %o(a shivir peacefully, as law abiding citi-ens of the country. Io complaint had ever been received of any disturbance or breach of public trust. .he events, right from 8anuary "G11, showed that all the camps and protests 170

organi-ed by the .rust, under the leadership of Baba /amdev had been completed peacefully, without any damage to person or property and without any disturbance to anyone. .he action of the 'olice in revo2ing the permissions as well as that of the executive authorities in passing the order under %ection 1&& Cr.'.C. was a colourable exercise of power and was not called for in the facts and circumstances of the case. 1D#. It is also not understandable that if the general )threat perception* and li2elihood of communal disharmony were the grounds for revo2ing the permission and passing the order under %ection 1&& Cr.'.C., then why the order passed under %ection 1&& Cr.'.C. permitted all other rallies, processions which had obtained the 'olice permission to go on in the area of the same 'olice Civision. terms. .he decision, therefore, appears to be contradictory in

1D&. .here is some merit in the submissions of learned 8micus curiae. >xistence of sufficient ground is the sine Dua non for

invo2ing the power vested in the executive under %ection 1&& 171

Cr.'.C. It is a very onerous duty that is cast upon the empowered officer by the legislature. .he perception of threat should be real and not imaginary or a mere li2ely possibility. .he test laid down in this %ection is not that of )merely li2elihood or tendency*. .he legislature, in its wisdom, has empowered an officer of the executive to discharge this duty with great caution, as the power extends to placing a restriction and in certain situations, even a prohibition, on the exercise of the fundamental right to freedom of speech and expression. .hus, in case of a mere apprehension, without any

material facts to indicate that the apprehension is imminent and genuine, it may not be proper for the authorities to place such a restriction upon the rights of the citi-en. At the cost of repetition, I may notice that all the grounds stated were considered at various levels of the 4overnment and the 'olice and they had considered it appropriate not to withdraw the permissions or impose the restriction of %ection 1&& Cr.'.C. even till # rd 8une, "G11. .hus, it was expected of the authorities to show before the Court that some very material information, fact or event had occurred between # rd and &th 8une, "G11, which could be described as the determinative 172

factor for the authorities to change their mind and pass these orders. I am unable to accept the contention of the 'olice that a situation had arisen in which there was imminent need to intervene instantly having regard to the sensitivity and perniciously perilous conse?uences that may result, if not prevented forthwith. 1D=. .he administration, upon ta2ing into consideration the intelligence inputs, threat perception, li2elihood of disturbance to public order and other relevant considerations, had not only prepared its planned course of action but also declared the same. In furtherance thereto, the 'olice also issued directions for compliance to the organi-ers. .he authorities, thus, had full

opportunity to exercise their power to ma2e a choice permitting continuation andJor cancellation of the programme and thereby prohibit the activity on the /amlila :aidan. 7owever, in their

wisdom, they opted to permit the continuation of the agitation and holding of the %o(a shivir, thereby impliedly permitting the same, even in the changed circumstances, as alleged. Fuinon prohi!it Dua prohi!ere protest asentire videthir 7e who does not prohibit when he is able to prohibit assents to it!. 173

1D;. .he authorities are expected to seriously cogitate over the matter in its entirety 2eeping the common welfare in mind. In my view, the 'olice have not placed on record any document or even affidavits to show such sudden change of circumstances,

compelling the authorities to ta2e the action that they too2. Cenial of a right to hold such meeting has to be under exceptional circumstances and strictly with the ob$ect of preventing public tran?uility and public order from being disturbed. R'$1-&$57' &-%/8' /1 $ ('>*/('+'&% -4 S'8%/-& 144 C(.P.C.

1D(. .he language of %ection 1&& Cr.'.C. does not contemplate grant of any time for implementation of the directions relating to the prevention or prohibition of certain acts for which the order is passed against the person s!. It is a settled rule of law that

wherever provision of a statute does not provide for a specific time, the same has to be done within a reasonable time. Again

reasonable time cannot have a fixed connotation. It must depend upon the facts and circumstances of a given case. .here may also be cases where the order passed by an >xecutive :agistrate under 174

%ection 1&& Cr.'.C. re?uires to be executed forthwith, as delay in its execution may frustrate the very purpose of such an order and may cause disastrous results li2e rioting, disturbance of public order and public tran?uility, while there may be other cases where it is possible, on the principles of common prudence, that some time could be granted for enforcement and complete

implementation of the order passed by the >xecutive Authority under %ection 1&& Cr.'.C. If one reads the entire provision of

%ection 1&& Cr.'.C., then the legislature itself has drawn a distinction between cases of urgency, where the circumstances do not admit to serving of a notice in due time upon the person against whom such an order is directed and the cases where the order could be passed after giving a notice to the affected party. .hus, it is not possible to lay down any straight $ac2et formula or an absolute proposition of law with exactitude that shall be applicable uniformly to all the casesJsituations. In fact, it may not be

$udicially proper to state such a proposition. It must be left to the discretion of the executive authority, vested with such powers to examine each case on its own merits. 175

1DD. Ieedless to repeat that an order under %ection 1&& Cr.'.C. affects the right vested in a person and it will not be unreasonable to expect the authorities to grant ade?uate time to implement such orders, wherever the circumstances so permit. >nforcement of the order in undue haste may sometimes cause a greater damage than the good that it expected to achieve. 1D9. If for the sa2e of arguments, I would accept the contention of the 'olice that the order withdrawing the permission as well as the order under %ection 1&& Cr.'.C. are valid and had been passed for good reasons, still the ?uestion remains as to whether the authorities could have given some reasonable time for

implementationJenforcement of the directions contained in the order dated &th 8une, "G11. It is undisputable and, in fact, is

disputed by none that all the persons who had gathered in the tent at the /amlila :aidan were sleeping when the 'olice went there to serve the order passed under %ection 1&& Cr.'.C. upon the representatives of the .rust3 the order itself having been passed at 11.#G p.m. on &th 8une, "G11. .here are serious disputes raised as to the manner in which the order was sought to be executed by the 176

'olice. According to respondent Io. & and the learned amicus, it was not executed as per the legal framewor2 provided under the 'olice /ules and the guidelines issued, whereas according to the 'olice, it adhered to its prescribed procedure. .his issue I shall discuss separately. But at this stage, I may notice that nothing

prevented the authorities from ma2ing proper announcements peacefully re?uiring the persons gathered at the /amlila :aidan to leave for their respective homes early in the morning and before the %o(a camp could resume. %imultaneously, they could also have

prohibited entry into the /amlila :aidan, as the same was being controlled by the 'olice itself. Io facts or circumstances have been stated which could explain as to why it was absolutely necessary for the 'olice to wa2e up the people from their sleep and force their eviction, in a manner in which it has been done at the late hours of night. In absence of any explanation and special circumstances placed on record, I have no hesitation in coming to the conclusion that, in the facts of the present case, it was ?uite possible and even desirable for the authorities concerned to grant a reasonable time for eviction from the ground and enforcement of the orders passed 177

under %ection 1&& Cr.'.C.

>xcept in cases of emergency or the

situation unexceptionally demanding so, reasonable noticeJtime for execution of the order or compliance of the directions issued in the order itself or in furtherance thereto is the pre6re?uisite. 19G. Ion6grant of reasonable time and undue haste on the part of the 'olice authorities to enforce the orders under %ection 1&& Cr.'.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 'olice authorities to bastion the rights of the citi-ens of the country. 7owever, undue haste on the part of the 'olice created angst and disarray amongst the gathering at the /amlila :aidan, which finally resulted in this sad cataclysm. R'>*/('+'&% -4 P-7/8' ,'(+/11/-& $&2 /%1 '44'8% -& %.' (/0.% 8-&4'(('2 /& %'(+1 -4 A(%/87'1 1?(1)($) $&2 1?(1)(5) ('1,'8%/v'76 #/%. ('4'('&8' %- %.' 4$8%1 -4 %.' ,('1'&% 8$1' 191. .he contention on behalf of respondent Io.& is that no law re?uires permission of the 'olice to go on fast andJor for the purposes of holding an agitation or %o(a camp. .he 'olice,

therefore, had no power to cancel such permission. .he law is clear 178

that it is the fundamental right of the people to hold such agitation or morchas in the streets and on public land and the 'olice have been vested with no power to place any restriction, much less an unreasonable restriction, upon the exercise of such right. .here is no statutory form provided for see2ing permission of the 'olice before holding any such public meeting. Hhile relying on the Constitution Bench $udgment of this Court in the case of ,imat Lal supra!, the contention is that the 'olice cannot be vested with unrestricted and unlimited power for grant or refusal of permission for holding such public functions. In fact, it is stated to be no

re?uirement of law. In the alternative, the contention is that there was no condition imposed by the 'olice for grant of permission, which had been violated. .hus, there was no occasion or

$ustification, not even a reasonable apprehension, for revo2ing that permission. .he imposition of restriction must be preceded by

some act or threatening behavior which would disturb the public order or public tran?uility. 19". .he /amlila :aidan belongs to :CC and they granted the permissionJlicence to use the said property from 1 st 8une, "G11 to 179

"Gth 8une, "G11.

.hey having granted the permissionJlicense to

use the said property, never revo2ed the same. .hus, the 'olice had no $urisdiction to indirectly revo2e the permission which they could not directly revo2e and evict the persons from Ramlila #aidan forcibly, by brutal assaults and causing damage to the person and property of the individuals. .he permission had been revo2ed in violation of the principles of natural $ustice. .he submission was sought to be buttressed by referring to /ule 1G of the :CC /ules which re?uires grant of personal hearing before revocation of a permission granted by the :CC. 19#. .o contra, the contention raised on behalf of respondent Io.#, the Commissioner of 'olice, Celhi, is that there are specific powers vested in the 'olice in terms of the C' Act, the 'un$ab 'olice /ules, as applicable to Celhi and the %tanding Krders, according to which the 'olice is obliged to maintain public order and public tran?uility. .hey are expected to 2eep a watch on public meetings. .here is no act attributable to the 'olice which has impinged upon any democratic rights of the said respondents or the public. .he orders passed and the action ta2en by the 'olice, including withdrawal of 180

permission, was in public interest as weighed against private interest. %ince the 'olice, as an important organ of the %tate

Administration, is responsible to maintain public order and peace, it will be obligatory upon the persons desirous of holding such public meetings as well as the concerned authorities to associate 'olice and see2 their permission for holding such public

sat%a(raha$ camp etc. as safety of a large number of people may be at sta2e. According to learned 8micus curiae, the withdrawal of

permission was for political and mala fide reasons. .here existed no circumstances which could $ustify the withdrawal of permission. In fact, the contention is that possibility of 4overnment and 'olice wor2ing in liaison to prevent Baba /amdev from holding

Sat%a(rahG8nshan cannot be ruled out particularly, when there was no threat, much less an imminent threat, to disturb public order or tran?uility $ustifying the withdrawal of permission.

19&. I have already discussed that the term )social order* has a very wide ambit which includes )law and order*, )public order* as well as )security of the %tate*. In other words, )social order* is an 181

expression of wide amplitude. It has a direct nexus to the 'reamble of the Constitution which secures $ustice P social, economic and political P to the people of India. An activity which could affect )law and order* may not necessarily affect public order and an activity which might be pre$udicial to public order, may not necessarily affect the security of the %tate. Absence of public order is an

aggravated form of disturbance of public peace which affects the general course of public life, as any act which merely affects the security of others may not constitute a breach of public order. .he )security of the %tate*, )law and order* and )public order* are not expressions of common meaning and connotation. .o maintain

and preserve public peace, public safety and the public order is une?uivocal duty of the %tate and its organs. .o ensure social

security to the citi-ens of India is not merely a legal duty of the %tate but a constitutional mandate also. .here can be no social

order or proper state governance without the %tate performing this function and duty in all its spheres. 19=. >ven for ensuring the exercise of the right to freedom of speech and assembly, the %tate would be duty bound to ensure 182

exercise of such rights by the persons desirous of exercising such rights as well as to ensure the protection and security of the people i.e. members of the assembly as well as that of the public at large. .his tri6duty has to be discharged by the %tate as a re?uirement of law for which it has to be allowed to apply the principle of reasonable restriction, which is constitutionally permissible. 19;. Articles 19 1! a! and 19 1! b! are sub$ect to the reasonable restrictions which may be imposed on exercise of such right and which are in the interest of sovereignty and integrity of India, security of the %tate, public order, decency or morality and friendly relations with foreign states. Besides this, such restriction could

also relate to contempt of court, defamation or incitement to an offence. .hus, sphere of such restrictions is very wide. Hhile

some may be exercising their fundamental rights under Articles 19 1! a! and 19 1! b! of the Constitution, others may be entitled to the protection of social safety and security in terms of Article "1 of the Constitution and the %tate may be called upon to perform these functions in the discharge of its duties under the constitutional

183

mandate and the re?uirements of Cirective 'rinciples of %tate 'olicy. 19(. I have also noticed that in terms of Article =1A of the Constitution, it is the constitutional duty of every citi-en to perform the duties as stated under that Article. 19D. .he security of India is the prime concern of the ,nion of India. )'ublic order* or )law and order* falls in the domain of the %tate. ,nion also has the power to enact laws of preventive

detention for reasons connected with the security of the %tate, maintenance of the public order, etc. I am not entering upon the field of legislative competence but am only indicating >ntries in the respective @ists to show that these aspects are the primary concern, either of the ,nion or the %tate 4overnments, as the case may be and they hold $urisdiction to enact laws in that regard. .he ,nion or the %tate is expected to exercise its legislative power in aid of civil power, with regard to the security of the %tate andJor public order, as the case may be, with reference to >ntry 9 of @ist I, >ntry

184

1 of @ist II and >ntries # and & of @ist III of the %eventh %chedule of the Constitution of India. 199. .hese are primarily the fields of legislation, but once they are read with the constitutional duties of the %tate under Cirective 'rinciples with reference to Article #D where the %tate is to secure a social order for promotion of welfare of the people, the clear result is that the %tate is not only expected but is mandatorily re?uired to maintain social order and due protection of fundamental rights in the %tate. "GG. +reedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. .he people of a democratic country li2e ours have a right to raise their voice against the decisions and actions of the 4overnment or even to express their resentment over the actions of the 4overnment on any sub$ect of social or national importance. .he 4overnment has to respect and, in fact,

encourage exercise of such rights. It is the abundant duty of the %tate to aid the exercise of the right to freedom of speech as 185

understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or ta2ing action in that direction in the name of reasonable restrictions. steps should be founded on actual and .he preventive threat

prominent

endangering public order and tran?uility, as it may disturb the social order. .his delegate power vested in the %tate has to be

exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them. "G1. .he )law and order* or )public order* are primarily and certainly the concerns of the %tate. 'olice, being one of the most important organs of the %tate, is largely responsible for ensuring maintenance of public security and social order. .o urge that the 'olice have no concern with the holding of public meetings would be a misnomer and misunderstanding of law. .o discharge its duty, the 'olice

organi-ation of a %tate is a significant player within the framewor2 of law. In this view of the matter, I may now refer to certain

statutory provisions under the relevant Acts or the /ules. Chapter 186

B of the C' Act re?uires special measures for maintenance of public order and security of %tate, to be ta2en by the 'olice. %ections "D and "9 of the C' Act give power to the 'olice to ma2e regulations for regulating traffic and for preservation of order in public places and to give directions to the public, respectively. ,nder %ection #1 of the C' Act, the 'olice is under a duty to prevent disorder at places of public amusement or public assembly or meetings. %ection #; contemplates that the 'olice is to ensure and reserve streets or other public places for public purposes and empowers it to authori-e erecting of barriers in streets. It also is vested with the power to ma2e regulations regulating the conduct or behaviour of persons constituting assemblies or processions on or along with the streets and specifying, in the case of processions, the rules by which and the time and order in which the same may pass. "G". .he power to ma2e regulations relates to regulating various activities including holding of melas and public amusements, in the interest of public order, the general public or morality. Celhi 'olice has also issued a %tanding Krder #G9 in relation to )/egulation of 187

processions and rallies* laying down the procedure for ma2ing application for grant of permission, its acceptance or re$ection and the conse?uences thereof. .his %tanding Krder also provides as to how the proceedings in furtherance to an order passed under %ection 1&& Cr.'.C. should be carried out. It further indicates that the entire tilt of the regulation is to grant permission for holding processions or rallies and they need to be accommodated at the appropriate places depending upon the number of persons proposing to attend the said rally or meeting and the nature of the activity that they are expected to carry on. +or instance, under

clause h!, as the 'arliament %treet and 8antar :antar cannot accommodate more than =GGG persons, if there is a larger crowd, they should be shifted to the /amlila 4round and if the crowd is expected to be more than =G,GGG and the number of vehicles would accordingly swell up, then it should be shifted to a par2 or another premises, which can safely accommodate the gathering.

"G#. .he learned %olicitor 4eneral appearing for the ,nion of India argued that the :inistry of 7ome Affairs had never told the 'olice 188

to ta2e any action.

.he 'olice only 2ept the senior officers in the Hhat transpired at the site is

:inistry of 7ome Affairs informed.

correctly stated by the 'olice in its affidavit and the extent of $udicial review of such actionJorder is a very narrow one. According to him, the scope of the suo moto petition itself is a very limited one, as is evident from the order of the Court dated ; th 8une, "G11. .he statement of the 7ome :inister relied upon by

respondent Io. " as well as referred to by the learned 8micus in his submissions has to be read in con$unction with the explanation given by the :inister of 7ome Affairs soon after the incident. .hus, no fault or error is attributable to the :inistry of 7ome Affairs, 4overnment of India in relying upon the $udgment of this Court in a!ulal "arate supra!, #adhu Lima%e supra!, 8mita!h

achchan Corpn& Ltd& v& #ahila Ja(ran #anch 7 +rs& 9 199(! ( %CC 91<, R&:& *ar( v& Superintendent$ ;istrict Jail$ Saharanpur 7 +rs& 9 19(G! # %CC ""(< and ;r& "raveen hai Tho(adia supra! to

contend that the authorities have to be given some leverage to ta2e decisions in such situations. .here are sufficient inbuilt

safeguards and that the $udicial intervention in such executive 189

orders has to be very limited.

It is his contention that the present

case does not fall in that category. "G&. .here cannot be any dispute that the executive authorities have to be given some leverage while ta2ing such decisions and the scope of $udicial review of such orders is very limited. .hese

propositions of law are to be understood and applied with reference to the facts of a given case. those facts. It is not necessary for me to reiterate

%uffice it to note that the action of the 'olice was

arbitrary. .he %even 8udges Bench of this Court in #adhu Lima%e supra! reiterated with approval the law enunciated in "arate a!ulal

supra! and further held that 1.hese fundamental facts

emerge from the way the occasions for the exercise of the power are mentioned. Cisturbances of public tran?uility, riots and affray lead to subversion of public order unless they are prevented in time. Iuisances dangerous to human life, health or safety have no doubt to be abated and preventedAAAA..5 .he fundamental emphasis

is on prevention of situation which would lead to disturbance of public tran?uility, however, action proposed to be ta2en should be one which itself is not li2ely to generate public disorder and disturb 190

the public tran?uility.

It should be preventive and not provocative.

.he 'olice action in the present case led to a terror in the minds of members of the assembly and finally the untoward incident. "G=. It is also true that a man on the spot and responsible for maintenance of public peace is the appropriate person to form an opinion as contemplated in law. But, here the onus was on the

'olice Authorities to show existence of such circumstances at the spot when, admittedly, all persons were sleeping peacefully. .he

courts have to reali-e that the rights of the organi-ers and other members of the %ociety had to be protected if a law and order situation was created as a result of a given situation. "G;. .he learned %olicitor 4eneral is correct in his submissions that the scope of the present suo moto petition is a limited one. But certainly it is not so limited that the Court would neither examine facts nor the law applicable but would accept the government affidavits as a gospel truth. "G11 has two distinct re?uirements. the police authorities. .he order dated ;th 8une,

+irstly, relating to the ta2e of

%econdly, circumstances in which such

191

power with brutality and atrocities was asserted against large people who had gathered at the /amlila ground. "G(. Hhile 2eeping the principles of law in mind, the Court essentially has to deliberate upon these two aspects. I am

examining the circumstances which generated or resulted into the unfortunate situation at the /amlila 4round on the midnight of &thJ=th 8une, "G11. .he statement made by the 7ome :inister on .his

Dth 8une, "G11 has already been referred by me above.

statement clearly demonstrated the stand of the 4overnment that in the event Baba /amdev persisted in his efforts to go on with the fast, he would be removed. .he 'olice had been issued

appropriate directions under %ection ;= of the C' Act to enforce the same. .he decision so had also been ta2en by the Celhi 'olice.

.he :inister had re?uested the general public to appreciate the constraints and difficult circumstances under which the Celhi 'olice had to discharge its functions. .his statement was even

clarified with more reasons and elaborately in the exclusive interview of the :inister with CC Iews on the same date on the television. 7e is stated to have said that ultimately when the tal2s 192

failed or Baba /amdev went bac2 on his words, the 'olice was told to enforce the decision. "GD. .here are circumstances and reasons given by the 7ome :inister in his statement for ma2ing the statement that he made. .he decision of the Celhi 'olice in the normal course of events would have a connection with the declaration made by the :inistry. 'olice might have acted independently or in consultation with the :inistry. >ither way, there is no material before me to hold that the decision of the :inistry or the 'olice was mala fide in law or in fact. ,pon ta2ing into consideration the cumulative effect of the affidavits filed on record and other documentary evidence, I am unable to dispel the argument that the decision of :inistry of 7ome Affairs, ,nion of India reflected its shadow on the decision ma2ing process and decision of the 'olice authorities. "G9. I shall ma2e it clear even at the cost of repetition that neither am I ad$udicating upon the validity of the order passed by the 4overnment ?ua respondent Io. &, nor ad$udicating any disputes between Baba /amdev, on the one hand, and the 4overnment, on the other. Hithin the scope of this Court*s order dated ; th 8une, 193

"G11, I would examine all the relevant facts and the principles of law applicable for returning the findings in relation to the interest of the large public present at the /amlila :aidan in the midnight of &thJ=th 8une, "G11. "1G. .he learned 8micus also contended that the doctrine of limited $udicial review would not stricto sensu apply to the present case. .he case is not limited to the passing of an order under %ection 1&&, Cr.'C, but involves the larger issue of fundamental freedom and restrictions in terms of Article 19 1! a! of the Constitution, as well as the interest of number of in$ured persons and /a$bala, the deceased. It is also his contention that there is a clear abdication

of powers by the 'olice to the :inistry of 7ome Affairs. .he order and action of the 'olice are patently un$ustifiable. If the

tra$ectories of two views, one of the :inistry and other of the 'olice point out towards the action being mala fide, be it so, the Court then should decide the action to be mala fide. #ala fides is a

finding which the Court can return only upon proper allegations supported by documentary or other evidence. It is true that if the

factual matrix of the case ma2es the two tra$ectories case of both 194

the respondents! point towards an incorrect decision, the Court would be reluctant to return a finding of mala fides or abdication of power. .he decision was ta2en by the competent authority and on the basis of inputs and the situation existing at the site. It may be an incorrect decision ta2en in somewhat arbitrary manner and its enforcement may be totally contrary to the rule of law and common sense. In such an event, the action may be liable to be interfered with but cannot be termed as mala fide& "11. +urthermore, the constitutional mandate, the statutory

provisions and the regulations made thereunder, in exercise of power of delegated legislation, cast a dual duty upon the %tate. It must ensure public order and public tran?uility with due regard to social order, on the one hand, while on the other, it must exercise the authority vested in it to facilitate the exercise of fundamental freedoms available to the citi-ens of India. A right can be regulated for the purposes stated in that Article itself. "1". In ,imat Lal :& Shah supra!, this Court observed that even in pre6independence days the public meetings have been held in open 195

spaces and public streets and the people have come to regard it as a part of their privileges and amenities. .he streets and public

par2s existed primarily for other purposes and the social interest promoted by untrammelled exercise of freedom of utterance and assembly in public streets must yield to the social interest which the prohibition and regulation of speech are designed to protect. .here is a constitutional difference between reasonable regulation and arbitrary exclusion. .he power of the appropriate authority to impose reasonable regulation, in order to ensure the safety and convenience of the people in the use of public highways, has never been regarded as inconsistent with the fundamental right to assembly. A system of licensing as regards the time and manner of holding public meeting on public streets has not been regarded as an infringement of a fundamental right of public assembly or free speech. .his Court, while declaring /ule ( of the Bombay 'olice /ules ultra vires, stated the principle that it gave an unguided discretion, practically dependent upon the sub$ective whims of the authority, to grant or refuse permission to hold public meeting on a public street. ,nguided and unfettered power is alien to proper 196

legislation and even good governance.

.he principles of healthy

democracy will not permit such restriction on the exercise of a fundamental right. "1#. .he contention made by :r. /am 8ethmalani, learned %enior Advocate, is that this $udgment should be construed to mean that it is not obligatory or even a directory re?uirement to ta2e permission of the 'olice authorities for holding such public meetings at public places. According to him the 'olice have no such power in law. I am not ?uite impressed by this submission. .his argument, if

accepted, can lead to drastic and impracticable conse?uences. If the Cepartment of 'olice will have no say in such matters, then it will not only be difficult but may also be improbable for the 'olice to maintain law and order and public tran?uility, safeguarding the interest of the organi-ers, the persons participating in such public meetings as well as that of the public at large. "1&. I am bound and, in fact, I would follow the view expressed by a Constitution Bench of this Court in the case of ,imat Lal supra! in paragraph #1 of the $udgment 0 197

1It seems to us that it follows from the above discussion that in India a citi-en had, before the Constitution, a right to hold meetings on public streets sub$ect to the control of the appropriate authority regarding the time and place of the meeting and sub$ect to considerations of public order. .herefore, we are unable to hold that the impugned rules are ultra vires %ection ## 1! of the Bombay 'olice Act insofar as they re?uire prior permission for holding meetings.5 "1=. .he provisions of C' Act read in con$unction with the /egulations framed and the %tanding Krders issued, do provide sufficient guidelines for exercise of power by the appropriate authority in granting andJor refusing the permission sought for. I hasten to add here itself that an application to the 'olice has to be examined with greatest regard and ob$ectivity in order to ensure exercise of a fundamental right rather than it being throttled or frustrated by non6granting of such permission. "1;. A three68udge Bench of this Court in the case of ;estruction of "u!lic and "rivate "roperties$ In Re supra! primarily laid down the guidelines to effectuate the modalities for preventive action and adding teeth to the en?uiryJinvestigation in cases of damage to 198

public and private properties resulting from public rioting.

.he

Court indicated the need for participation and for ta2ing the 'olice into the organi-ational activity for such purposes. .he Court, while following the principles stated in the case of Union of India v& 8ssociation of ;emocratic Reforms 9 "GG"! # %CC ;9;<, gave directions and guidelines, wherever the Act or the /ules were silent on a particular sub$ect, for the proper enforcement of the provisions. In paragraph 1" of the $udgment, the Court clearly

stated that as soon as there is a demonstration organi-ed, the organi-ers shall meet the 'olice to review and revise the route to be ta2en and lay down the conditions for peaceful march and protest. "1(. Admittedly, the Court in that case was not determining an issue whether 'olice permission is a pre6re?uisite for holding such public meetings or not, but still, the Court mandated that the view of the 'olice is a re?uirement for organi-ation of such meetings or for ta2ing out public processions. %ee2ing of such permission can be $ustified on the basis that the said right is sub$ect to reasonable restrictions.

199

"1D. +urther, exercise of such rights cannot be claimed at the cost of impinging upon the rights of others. .his is how the restriction imposed is to be regulated. /estriction to a right has to come by enactment of law and enforcement of such restriction has to come by a regulatory mechanism, which obviously would ta2e within its ambit the role of 'olice. .he 'olice have to perform their functions

in the administration of criminal $ustice system in accordance with the provisions of the Cr.'.C. and the other penal statutes. It has also to ensure that it ta2es appropriate preventive steps as well as maintains public order or law and order, as the case may be. In the event of any untoward incident resulting into in$ury to a person or property of an individual or violation of his rights, it is the 'olice alone that shall be held answerable and responsible for the conse?uences as may follow in law. .he 'olice is to maintain and give precedence to the safety of the people as salus populi supremo le< the safety of the people is the supreme law! and salus

repu!licae supremo le< safety of the %tate is the supreme law! coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of 200

the community.

Besides, one fact that cannot be ignored is that

respondent no.&, in furtherance to the understanding of law, had itself applied to the Ceputy Commissioner of 'olice, Central Cistrict, Carya 4an$, see2ing sanction for holding of %o(a shivir at the /amlila :aidan. "19. It is difficult for the Court to even imagine a situation where the 'olice would be called upon to discharge such heavy responsibility without having any say in the matter. .he persons who are organi-ing the public meeting would obviously have their purpose and agenda in mind but the 'olice also have to ensure that they are able to exercise their right to freedom of speech and assembly and, at the same time, there is no obstruction, in$ury or danger to the public at large. ""G. .hus, in my considered opinion, associating 'olice as a pre6 re?uirement to hold such meetings, dharnas and protests, on such large scale, would not infringe the fundamental rights enshrined under Articles 19 1! a! and 19 1! b! of the Constitution as this would s?uarely fall within the regulatory mechanism of reasonable 201

restrictions,

contemplated

under

Articles

19 "!

and

19 #!.

+urthermore, it would help in ensuring due social order and would also not impinge upon the rights of the others, as contemplated under Article "1 of the Constitution of India. .hat would be the correct approach of law, as is supported by various $udgments and reasoning, that I have detailed in the initial part of this $udgment. ""1. A solution to such an issue has to be provided with reference to exercise of a right, imposition of reasonable restrictions, without disturbing the social order, respecting the rights of others with due recognition of the constitutional duties that all citi-ens are expected to discharge. """. Coming to the facts of the present case, it is nobody*s case that the permissions were declined. .he permissions, whether for holding of the %o(a shivir at the /amlila :aidan or the protest at 8antar :antar, were granted sub$ect to certain terms and conditions. .he argument that no permission of the 'olice is called for in absolute terms, as a pre6re?uirement for holding of such meetings, needs no further deliberation. 202

R'1,-&1/5/7/%6 -4 %.' T(*1%! M'+5'(1 -4 %.' A11'+576! %.'/( 1%$%*1 $&2 2*%6

""#. Knce an order under %ection 1&& Cr.'.C. is passed by the competent authority and such order directs certain acts to be done or abstains from doing certain acts and such order is in force, any assembly, which initially might have been a lawful assembly, would become an unlawful assembly and the people so assembled would be re?uired to disperse in furtherance to such order. A person

can not only be held responsible for his own act, but, in light of %ection 1&9 I'C, if the offence is committed by any member of the unlawful assembly in prosecution of a common ob$ect of that assembly, every member of such assembly would become member of the unlawful assembly. ""&. Kbedience of lawful orders is the duty of every citi-en. >very action is to follow its prescribed course in law 8ctio Duaeli!et it sua via. .he course prescribed in law has to culminate to its final stage in accordance with law. In that process there might be either a

clear disobedience or a contributory disobedience. In either way, it may tantamount to being negligent. .hus, the principle of 203

contributory negligence can be applied against parties to an action or even a non6party. .he rule of identification would be applied in cases where a situation of the present 2ind arises. Before this

Court, it is the stand of the 'olice authorities that Baba /amdev, members of the .rust and their followers refused to obey the order and, in fact, they created a situation which resulted in inflictment of in$uries not only to the members of the public, but even to 'olice personnel. In fact, they placed the entire burden upon respondent Io. &. ""=. .he members of the public as well as /espondent Io.& claimed that there was damage to their person and property as a result of the action of the 'olice. .hus, this Court will have to see the fault of the party and the effective cause of the ensuing in$ury. Also it has to be seen that in the )agony of the moment*, would the situation have been different and safe, had the people concerned acted differently and as to who was ma$orly responsible for creation of such a dilemma. ,nder the >nglish law, it has been accepted

that once a statute has en$oined a pattern of behavior as a duty, no individual can absolve another from having to obey it. .hus, as a 204

matter of public policy, volenti cannot erase the duty or breach of it Ref& Clerk 7 Lindsell on Torts$ Twentieth Hdition$ p(& B5I !& "";. .here is no statutory definition of contributory negligence. .he concerns of contributory negligence are now too firmly established to be disregarded, but it has to be understood and applied properly. )Iegligence* materially contributes to in$ury or is

regarded as expressing something which is a direct cause of the accident. ""(. .he difference in the meaning of 1negligence,5 when applied to a claimant, on the one hand, and to a defendant on the other, was pointed out by @ord %imon in =ance v. 9 19=1! A.C. ;G1 at ;11< 0 1Hhen contributory negligence is set up as a defence, its existence does not depend on any duty owed by the in$ured party to the party sued, and all that is necessary to establish such a defence is to prove A that the in$ured party did not in his own interest ta2e reasonable care of himself and contributed, by his want of care, to his own in$ury. +or when contributory negligence is set up as a shield against the obligation to satisfy the whole of the claimant*s claim, the principle involved is that, where a man is part author of his own 205 ritish Colum!ia Hlectric R%&

in$ury, he cannot call on the other party to compensate him in full5 ""D. .he individual guilty of contributory negligence may be the employee or agent of the claimant, so as to render the claimant vicariously responsible for what he did. negligence between spectators and .here could be cases of participants in sporting

activities. 7owever, in such matters, negligence itself has to be established. In cases of )contributory negligence*, it may not

always be necessary to show that the claimant is in breach of some duty, but the duty to act carefully, usually arises and the liability in an action could arise -Ref& Charlesworth 7 "erc% on =e(li(ence$ Hleventh Hdition$ "a(es ./4$ BAI2& .hese are some of the principles relating to the award of compensation in cases of contributory negligence and in determining the liability and identifying the defaulter. >ven if these principles are not applicable stricto sensu to the cases of the present 2ind, the applied principles of contributory negligence a2in to these principles can be applied more effectively on the strength of the provisions of %ection 1&9 I'C. 206

""9. A negligence could be composite or contributory.

)Iegligence*

does not always mean absolute carelessness, but want of such a degree of care as is re?uired in particular circumstances.

)Iegligence* is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances $ustly demand, whereby such other person suffers in$ury. Iormally, the crucial ?uestion on which

such a liability depends would be whether either party could, by exercise of reasonable care, have avoided the conse?uence of otherLs negligence. .hough, this is the principle stated by this

Court in a case relating to :otor Behicles Act, in the case of #unicipal Corporation of *reater om!a% v. Shri La<man I%er 7 8nr&

9AI/ "GG# %C &1D"<, it is stated that the principle stated therein would be applicable to a large extent to the cases involving the principles of contributory negligence as well. .his Court in the

case of #unicipal Corporation of ;elhi$ ;elhi v& 8ssociation of )ictims of Uphaar Tra(ed% and others C.A. Ios. (11&6(11= of "GG# with C.A. Io. (11; of "GG# and C.A. Io. ;(&D of "GG&, pronounced on 1#th Kctober, "G11! while considering awarding of compensation to 207

the victims who died as a result of ,phaar tragedy and the liability of the persons responsible, held that even on the principle of contributory negligence the CBB to whom negligence was

attributable in relation to installing a transformer was liable to pay damages along with licensee. Hhenever an order is passed which remains unchallenged before the Court of competent $urisdiction, then its execution is the obvious conse?uence in law. +or its

execution, all concerned are expected to permit implementation of such orders and, in fact, are under a legal obligation to fully cooperate in enforcement of lawful orders. Article 19 1! a! gives the freedom of speech and expression and the right to assembly. Article "1 mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. 7owever, Article =1A imposes certain fundamental duties on Article #D 1! provides that the %tate shall

the citi-ens of India.

strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which $ustice P social, economic and political P shall inform all the institutions of national life. 208

"#G. Article =1A re?uires the citi-ens of India to abide by the Constitution and to uphold the sovereignty and integrity of India. Article =1A i! re?uires a citi-en to safeguard public property and to ab$ure violence. An order passed under %ection 1&& Cr.'.C. is a restriction on en$oyment of fundamental rights. It has been held to be a reasonable restriction. Knce an order is passed under %ection 1&& Cr.'.C. within the framewor2 and in accordance with the re?uirements of the said %ection, then it is a valid order which has to be respected by all concerned. conse?uence. Its enforcement is the natural

In the present case, the order was passed under

%ection 1&& Cr.'.C. at about 11.#G p.m. whereafter the 'olice had come to /amlila :aidan to serve the said order on the

representatives of respondent Io. &.

.he video and the footage of

CC.B cameras played before this Court show that the officers of the 'olice along with the limited force had come to inform Baba /amdev andJor the representatives of respondent Io. & about the passing of the said order, but they did not receive the re?uisite cooperation from that end. Kn the contrary, it is clear from the

various documents before this Court that Baba /amdev did not 209

receive the order though obviously he had come to 2now about the said order. At the time of the incident, Baba /amdev was sleeping .hereafter he came to the stage and when

in the rest room.

approached by the 'olice officers, who were also present on the stage, he $umped into the crowd, got onto the shoulders of one of his followers and delivered speeches. Kf course, there does not

appear to be use of any language which was, in any way, provocative or was a command to his followers to get involved in clash with the 'olice. Kn the contrary, in his speeches, he as2ed

the people to chant the *a%atri #antra, maintain Shanti and not to ta2e any confrontation with the 'olice. 7e exhorted that he would not advise the path of hinsa, but at the same time, he also stated about failure of his tal2s with the 4overnment and the attitude of the 4overnment on the issues that he had raised and also stated that C a!a6i will (o onl% if people wanted and the *od desires it&J "#1. After some time, Baba /amdev climbed onto the stage and thereafter, disappeared. In the CC.B cameras, Baba /amdev is not seen thereafter. 7e did not disclose to his followers that he was leaving and what path they should follow. .his suspense and 210

commotion on the stage added fuel to the fire.

.hereafter, the

scenes of violent protest and clash between the 'olice and the followers occurred at the site. "#". .he legality and correctness of the order passed under %ection 1&& Cr.'.C. was not challenged by respondent Io. & and, in fact, it remains unchallenged till date. Kf course, the attempt on the part

of the authorities to enforce the order forthwith, practically frustrated the right available to respondent Io. & under law i.e. preferring of an appeal or a revision under the provisions of Cr.'.C. "##. Be that as it may, the fact that when an order was passed by the authorities competent to pass such an order, it was expected of all concerned to respect the order lawfully passed and to ensure that the situation at the site was not converted into a tragedy. were expected to cooperate in the larger interest of the public. All .he

'olice was concerned with the problem of law and order while respondent Io. & and Baba /amdev certainly should have been concerned about the welfare of their followers and the large gathering present at the /amlila :aidan. .hus, to that extent, the

'olice and respondent Io. & ought to have acted in tandem and 211

ensured that no damage to the person or property should ta2e place, which unfortunately did not happen. Meeping in view the

stature and respect that Baba /amdev en$oyed with his followers, he ought to have exercised the moral authority of his office in the welfare of the people present. .here exists a clear constitutional

duty, legal liability and moral responsibility to ensure due implementation of lawful orders and to maintain the basic rule of law. It would have served the greater public purpose and even the purpose of the protests for which the rally was being held, if Baba /amdev had re?uested his followers to instantaneously leave /amlila :aidan peacefully or had assured the Authorities that the morning %o(a programme or protest programme would be cancelled and the people would be re?uested to leave for their respective places. Absence of performance of this duty and the gesture of >ven if the

Baba /amdev led to an avoidable lacerating episode.

Court ta2es the view that there was undue haste, adamancy and negligence on the part of the 'olice authorities, then also it cannot escape to mention that to this negligence, there is a contribution by respondent Io. & as well. .he role of Baba /amdev at that crucial 212

$uncture could have turned the tide and probably brought a peaceful end rather than the heart rending end of in$uries and unfortunate deaths. >ven if it is assumed that the action of the

'olice was wrong in law, it gave no right to others to commit any offence In6uria non e<cusat in6uriam. "#&. >very law abiding citi-en should respect the law and must stand in conformity with the rule, be as high an individual may be. Biolation of orders has been made punitive under the provisions of %ection 1DD I'C, but still in other allied proceedings, it would result in fastening the liability on all contributory partners, may be vicariously, but the liability certainly would extend to all the defaulting parties. +or these reasons, I have to ta2e a view that in

the circumstances of the case, Baba /amdev and the office bearers of respondent Io. & have contributed to the negligence leading to the occurrence in ?uestion and are vicariously liable for such action. FINDINGS AND DIRECTIONS 0 1! In discharge of its $udicial functions, the courts do not stri2e down the law or ?uash the %tate action with the aim of 213

obstructing democracy in the name of preserving democratic process, but as a contribution to the governmental system, to ma2e it fair, $udicious and transparent. .he courts ta2e care of interests which are not sufficiently defended elsewhere andJor of the victims of %tate action, in exercise of its power of $udicial review. In my considered view, in the facts of the present case, the %tate and the 'olice could have avoided this tragic incident by exercising greater restraint, patience and resilience. .he

orders were passed by the authorities in undue haste and were executed with force and over-ealousness, as if an emergent situation existed. .he decision to forcibly evict the

innocent public sleeping at the /amlila grounds in the midnight of &thJ=th 8une, "G11, whether ta2en by the police independently or in consultation with the :inistry of 7ome Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. .he restriction imposed

on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an 214

invasion of the liberties and exercise of fundamental freedoms. .he members of the assembly had legal protections available to them even under the provisions of the Cr.'.C. .hus, the restriction was unreasonable and unwarrantedly executed. .he action demonstrated the might of the %tate and was an assault on the very basic democratic values enshrined in our Constitution. >xcept in cases of emergency or the situation unexceptionably demanding so, reasonable noticeJtime for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre6 re?uisite. It was primarily an error of performance of duty

both by the police and respondent Io.& but the ultimate sufferer was the public at large.

"!

+rom the facts and circumstances that emerge from the record before this Court, it is evident that it was not a case of emergency. .he police have failed to establish that a situation had arisen where there was imminent need to intervene, having regard to the sensitivity and perniciously perilous 215

conse?uences that could have resulted, if such harsh measures had not been ta2en forthwith.

#!

.he %tate has a duty to ensure fulfillment of the freedom enshrined in our Constitution and so it has a duty to protect itself against certain unlawful actions. It may, therefore, enact laws which would ensure such protection. .he rights and the liberties are not absolute in nature and uncontrolled in operation. Hhile placing the two, the rule of $ustice and fair play re?uires that %tate action should neither be un$ust nor unfair, lest it attracts the vice of unreasonableness or arbitrariness, resultantly vitiating the law, the procedure and the action ta2en thereunder.

&!

It is neither correct nor $udicially permissible to say that ta2ing of police permission for holding of dharnas, processions and rallies of the present 2ind is irrelevant or not re?uired in law. .hus, in my considered opinion, the re?uirement of

associating police, which is an important organ of the %tate for ensuring implementation of the rule of law, while holding such 216

large scale meetings, dharnas and protests, would not infringe the fundamental rights enshrined under Articles 19 1! a! and 19 1! b! of the Constitution. .his would s?uarely fall within the regulatory mechanism of reasonable restrictions,

contemplated under Articles 19 "! and 19 #!. +urthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article "1 of the Constitution of India. .he police authorities, who are re?uired to maintain the social order and public tran?uility, should have a say in the organi-ational matters relating to holding of dharnas, processions, agitations and rallies of the present 2ind. 7owever, such consent should be considered in a very ob$ective manner by the police authorities to ensure the exercise of the right to freedom of speech and expression as understood in its wider connotation, rather than use the power to frustrate or throttle the constitutional right. /efusal andJor withdrawal of permission should be for valid and exceptional reasons. .he executive power, to cause a

restriction on a constitutional right within the scope of %ection 217

1&& Cr.'.C., has to be used sparingly and very cautiously. .he authority of the police to issue such permission has an inbuilt element of caution and guided exercise of power and should be in the interest of the public. %uch an exercise of power by the 'olice should be aimed at attainment of fundamental freedom rather than improper suppression of the said right.

=!

I have held that the respondent no.& is guilty of contributory negligence. .he .rust 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 the competitive authority under %ection 1&& Cr.'.C. Cue to the stature that Baba /amdev en$oyed with his followers, it was expected of him to re?uest the gathering to disperse peacefully and leave the /amlila :aidan. 7e ought not have insisted on continuing with his activity at the place of occurrence. /espondent no.& and all its representatives were bound by the constitutional and fundamental duty to 218

safeguard public property and to ab$ure violence. .hus, there was legal and moral duty cast upon the members of the .rust to re?uest and persuade people to leave the /amlila :aidan which could have obviously avoided the confrontation between the police and the members of the gathering at the /amlila :aidan.

;!

As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, e?ually difficult it is to imagine existence of a right not coupled with a duty. .he duty may be a direct or an indirect conse?uence of a fair assertion of the right. 'art III of the Constitution, although confers rights, duties, regulations and restrictions are

inherent thereunder.

It can be stated with certainty that the freedom of speech is the bulwar2 of democratic 4overnment. .his freedom is essential for the appropriate functioning of the democratic process. .he freedom of speech and expression is regarded as the first

219

condition of liberty in the hierarchy of liberties granted under our constitutional mandate.

(!

It is undisputable that the provisions of %ection 1&& Cr.'.C. are attracted in emergent situations. >mergent power has to be exercised for the purposes of maintaining public order. .he material facts, therefore, should demonstrate that the action is being ta2en for maintenance of public order, public tran?uility and harmony.

D!

>ven if an order under %ection 1&& Cr.'.C. had to be given effect to, still /espondent no.& had a right to stay at the /amlila :aidan with permissible number of people as the land owning authority6:CC had not revo2ed its permission and the same was valid till "G th 8une, "G11. .he chain of events

reveals that it was a case of police excesses and, to a limited extent, even abuse of power. 9! +rom the material placed before the Court, I am unable to hold that the order passed by the competent authority and 220

execution thereof are mala fide in law or in fact or is an abdication of power and functions by the 'olice. .he action, of course, partially suffers from the vice of arbitrariness but every arbitrary action necessarily need not be mala fide. %imilarly every incorrect decision in law or on facts of a given case may also not be mala fide but every mala fide decision would be an incorrect and impermissible decision and would be vitiated in law. ,pon ta2ing into consideration the

cumulative effect of the affidavits filed on record and other documentary evidence, I am unable to dispel the argument that the decision of the :inistry of 7ome Affairs, ,nion of India reflected its shadow on the decision ma2ing process and decision of the 'olice authorities. 1G! I also find that there would be no illegality if the police authorities had acted in consultation with the ,nion :inistry as it is the collective responsibility of various departments of the %tate to ensure maintenance of law and order and public safety in the %tate.

221

11! >very personJbody to whom such permission is granted, shall give an underta2ing to the authorities concerned that heJit will cooperate in carrying out their duty and any lawful orders passed by any competent courtJauthorityJforum at any stage of the commencement of an agitationJ dharnaJ procession andJor period during which the permission granted is enforced. .his, of course, shall be sub$ect to such orders as may be passed by the court of competent $urisdiction.

1"! >ven on the touchstone of the principle of ) in terrorem*, I am of the view that the police have not acted with restraint or adhered to the principle of )least invasion* with the

constitutional and legal rights available to respondent no.& and the members of the gathering at the /amlila :aidan.

1#! .he present case is a glaring example of trust deficit between the people governing and the people to be governed. 4reater confidence needs to be built between the authorities in power and the public at large. .hus, I hold and direct that while

considering the )threat perception* as a ground for revo2ing 222

such permissions or passing an order under %ection 1&& Cr.'.C., )care perception* has to be treated as an integral part thereof. )Care perception* is an obligation of the %tate while performing its constitutional duty and maintaining social order.

1&! It is unavoidable for this Court to direct that the police authorities should ta2e such actions properly and strictly in accordance with the 4uidelines, %tanding Krders and the /ules applicable thereto. It is not only desirable but also a mandatory re?uirement of the present day that the %tate and the police authorities should have a complete and effective dispersement plan in place, before evicting the gathering by use of force from a particular place, in furtherance to an order passed by an executive authority under %ection 1&& of the Cr.'.C.

1=! .his is not a case where the Court can come to the conclusion that the entire police force has acted in violation to the /ules, %tanding orders and have fallen stray in their uncontrolled 223

-eal of forcibly evicting innocent public from the /amlila :aidan. .here has to be a clear distinction between the cases of responsibility of the force collectively and the responsibility of individual members of the forces. I find from the evidence on record that some of the police officersJpersonnel were very cooperative with the members of the assembly and helped them to vacate the /amlila :aidan while others were violent, inflicted cane in$uries, threw bric2s and even used tear6gas shells, causing fire on the stage and total commotion and confusion amongst the large gathering at the /amlila :aidan. .herefore, these two classes of 'olice +orce have to be treated differently.

1;! .hus,

while

directing

the

%tate

4overnment

and

the

Commissioner of 'olice to register and investigate cases of criminal acts and offences, destruction of private and public property against the police officersJpersonnel along with those members of the assembly, who threw bric2s at the police force

224

causing in$uries to the members of the force as well as damage to the property, I issue the following directions0

a.

.a2e disciplinary action against all the erring police officersJpersonnel who have indulged in bric26batting, have resorted to lathi charge and excessive use of tear gas shells upon the crowd, have exceeded their authority or have acted in a manner not permissible under the prescribed procedures, rules or the standing orders and their actions have an element of criminality. .his action shall be ta2en against the officerJpersonnel irrespective of what ran2s they hold in the hierarchy of police.

b.

.he police personnel who were present in the pandal and still did not help the evacuation of the large gathering and in transportation of sic2 and in$ured people to the hospitals have, in my opinion, also rendered themselves liable for appropriate disciplinary action.

225

c.

.he police shall also register criminal cases against the police personnel and members of the gathering at the /amlila ground whether they were followers of Baba /amdev or otherwise! who indulged in damage to the property, bric26batting etc. All these cases have already been reported to the 'olice %tation Mamla :ar2et. .he police shall complete the investigation and file a report under section 1(# of the Cr.'.C. within three months from today.

1(! I also direct that the persons who died or were in$ured in this unfortunate compensation. incident should be awarded ad hoc

%mt. /a$bala, who got spinal in$ury in the

incident and subse?uently died, would be entitled to the ad6 hoc compensation of /s.= lacs while persons who suffered grievous in$uries and were admitted to the hospital would be entitled to compensation of /s.=G,GGGJ6 each and persons who suffered simple in$uries and were ta2en to the hospital

226

but discharged after a short while would be entitled to a compensation of /s."=,GGGJ6 each.

+or breach of the legal and moral duty and for its contributory negligence, the conse?uences of financial liability would also pass, though to a limited extent, upon the respondent no.&6 .rust as well. .hus, I direct that in cases of death and

grievous hurt, "=W of the awarded compensation shall be paid by the .rust. .he said amount shall be paid to the

Commissioner of 'olice, who in turn, shall issue a che?ue for the entire amount in favour of the in$ured or the person claiming for the deceased.

"#=. .he compensation awarded by this Court shall be treated as ad6hoc compensation and in the event, the deceased or the in$ured persons or the persons claiming through them institute any legal proceedings for that purpose, the compensation awarded in this $udgment shall be ad$usted in those proceedings.

227

"#;. .he view expressed by me in this $udgment is prima facie and is without pre$udice to the rights and contentions of the parties that may be available to them in accordance with law.

"#(. .he suo moto 'etition is disposed of with above directions while leaving the parties to bear their own costs.

"#D. .his Court would be failing in its duty if appreciation is not placed on record for the proficient contribution made and adroit assistance rendered by Cr. /a$eev Chavan, learned amicus curiae$ :r. /.+. Iariman, learned %olicitor 4eneral of India, :r. '.'. :alhotra, learned Additional %olicitor 4eneral, :r. 7arish I. %alve, :r. '.7. 'are2h, :r. /am 8ethmalani, learned senior advocates, other learned counsel assisting them and all other counsel appearing in their own right. AAAAAAAAAAAA8. 9%watanter Mumar<

Iew Celhi3 +ebruary "#, "G1"

228

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION SUO MOTU W.P. (CRL.) NO. 122 OF 2011 RE : Raml la Ma !a" I"# !$"% DT. ()*.0+.2011 ,$'-.H&m$ S$#'$%a'/0 U" &" &1 I"! a 2 O'-. ....P$% % &"$'

3R$-4&"!$"%-

JUDGMENT D'. B.S. CHAUHAN0 J. l. Having had the advantage of going through the lucid and elaborately

di cu ed !udg"ent of "y e tee"ed brother #u tice $%atanter &u"ar' ( feel encouraged to contribute to thi )ronounce"ent in "y o%n hu"ble %ay on the )reciou i ue of liberty and freedo"' guaranteed to our citi*en a funda"ental right under the +on titution and the )o ible la%ful re triction that can be i")o ed for curtailing uch right . ,he legality of the order )a ed under $ection 144 +r.-.+. by the . i tant +o""i ioner of -olice' &a"la /ar0et' +entral 1i trict' 1elhi i al o ub!ect to legal crutiny by "e in the e )roceeding to find out a to %hether the aid order i in confor"ity %ith the 229

)rovi ion of $ection 144 +r.-.+. read %ith $ection 134 thereof and the 1elhi -olice $tanding 2rder 309. 2. ( re )ectfully agree %ith all the ob ervation and the finding

recorded by "y colleague and ( al o concur %ith the ob ervation that the finding recorded on the ufficiency of rea on in the order dated 4.6.2011 are tentative %hich could have been challenged if they o de ired before the a))ro)riate foru" in )ro)er )roceeding . 3onethele ' the re ervation that ( have about $tate -olice action vi 4a4vi the incident in 5ue tion and "y o)inion on the curtail"ent of the right of )rivacy of lee)ing individual ha to be e6)re ed a it directly involve the ta")ering of inviolate right ' that are )rotected under the +on titution. -roceeding under $ection 144' even if re orted to on ufficient ground ' the order could not be i")le"ented in uch unruly "anner. $uch a )o%er i invo0ed to )revent the breach of )eace and not to breach the )eace it elf. 3. 7aba 8a" 1ev along%ith hi large nu"ber of follo%er and

u))orter )erfor"ed a $hanti -aath at about 10 ).". on 4 th #une' 2011' %hereafter' all tho e %ho had a e"bled and tayed bac0' %ent to lee) under tent and cano)ie to again get u) in the "orning the ne6t day at about 4 ).".

230

to attend the chedule of . htang 9oga training to be conducted by 7aba 8a"dev. 4. #u t after "idnight' at about 12.30 a.". on the 5th of #une' 2011' a

huge contingent of about "ore than a thou and )olice"en urrounded the enca")"ent %hile everybody %a fa t a lee) in ide. ,here %a a i*eable cro%d of about 20'000 )er on %ho %ere lee)ing. ,hey %ere forcibly %o0en u) by the -olice' a aulted )hy ically and %ere virtually thro%n out of their tent . ,hi %a done in the )ur)orted e6erci e of the )olice )o%er conferred under $ection 144 +r. -.+. on the trength of a )rohibitory order dated 4.6.2011 )a ed by the . i tant +o""i ioner of -olice a "entioned hereinabove. 5. ,he "anner in %hich the aid order ca"e to be i")le"ented' rai ed a

dee) concern about the tyrannical a))roach of the ad"ini tration and thi +ourt too0 cogni*ance of the incident calling u)on the 1elhi -olice .d"ini tration to an %er thi cau e. ,he incident had u hered a huge u)roar and an enor"ou tirade of critici " %a flooded' bringing to our notice the aid un%arranted )olice action' that too' even %ithout follo%ing the )rocedure )re cribed in la%.

231

6.

,he 5ue tion i a to %hether uch an order tand )rotected under the

re triction clau e of .rticle 19 of the +on titution of (ndia or doe it violate the right of a )eaceful lee)ing cro%d' invading and intruding their )rivacy during lee) hour . ,he incident al o rai e eriou 5ue tion about the

credibility of the )olice act' the )rocedure follo%ed for i")le"entation of a )rohibitory order and the !u tification thereof in the given circu" tance . 7. e6)re ,he right to )eacefully and la%fully a e"ble together and to freely one elf cou)led %ith the right to 0no% about uch e6)re ion i

guaranteed under .rticle 19 of the +on titution of (ndia. $uch a right i inherent and i al o cou)led %ith the right to freedo" and liberty %hich have been conferred under .rticle 21 of the +on titution of (ndia.

8.

,he bac0ground in %hich the aid a e"bly ha gathered ha already

been e6)lained in the !udg"ent delivered by "y learned brother and' therefore' it i not nece ary to enter into any further detail thereof. ,he fact re"ain that i")le"entation of )ro"ulgated )rohibitory order %a ta0en %hen the cro%d %a a lee). ,he aid a e"bly )er4 e' at that "o"ent' did not )ri"a facie reflect any a))rehen ion of e"inent threat or danger to )ublic )eace and tran5uillity nor any active de"on tration %a 232

being )erfor"ed at that dead hour of night. ,he -olice' ho%ever' )ro"ulgated the order on the ba i of an alleged infor"ation received that )eace and tran5uillity of that area %ould be di turbed and )eo)le "ight indulge in unla%ful activitie . ,he )rohibitory order al o recite that condition e6i t that unre tricted holding of a )ublic "eeting in the area i li0ely to cau e ob truction to traffic' danger to hu"an afety and di turbance of )ublic tran5uillity and in order to en ure )eedy action for )reventing any uch danger to hu"an life and afety' the order %a being )ro"ulgated.

9.

,he order further recite that ince the notice for the )ro"ulgation uch it hall be )ubli hed for infor"ation

cannot be erved individually a through the -re

and by affi6ing the co)ie on the 3otice 7oard of the 2ffice

of the -olice 2fficial ' .d"ini tration and -olice $tation ' including the /unici)al +or)oration 2ffice .

10.

3o doubt' the la% of ocial control i )re erved in the hand of the

$tate' but at the a"e ti"e' )rotection again t un%arranted govern"ental inva ion and intru ive action i al o )rotected under the la% of the country. :iberty i definitely no licence and the right of uch freedo" i not ab olute but can be regulated by a))ro)riate la% . ,he freedo" fro" official 233

interference i ' therefore' regulated by la% but la% cannot be enforced for cri))ling the freedo" "erely under the garb of uch regulation. ,he )olice or the .d"ini tration %ithout any la%ful cau e cannot "a0e a calculated interference in the en!oy"ent of the funda"ental right guaranteed to the citi*en of thi country. . to %hat %a "aterial to )reci)itate uch a )rohibitory action i one a )ect of the "atter' but %hat i "ore i")ortant i the i")le"entation of uch an order. ,hi i %hat trouble "e in the bac0ground that a )rohibitory order %a ought to be enforced on a lee)ing

cro%d and not a violent one. /y concern i about the enforce"ent of the order %ithout any announce"ent a )re cribed for being )ubli hed or by it affi6ation in ter" of the 1elhi -olice $tanding 2rder 309 read %ith $ection 134 +r.-.+.

11.

(t i believed that a )er on %ho i

lee)ing' i half dead. Hi "ental tate or condition

facultie are in an inactive tate. $lee) i an uncon ciou

regularly and naturally a u"ed by "an and other living being during %hich the activity of the nervou y te" i al"o t or entirely u )ended. (t i the

tate of lu"ber and re)o e. (t i a nece ity and not a lu6ury. (t i e ential for o)ti"al health and ha))ine a it directly affect the 5uality of the life of

an individual %hen a%a0e inducing hi "ental har)ne ' e"otional balance' 234

creativity and vitality. $lee) i ' therefore' a biological and e ential ingredient of the ba ic nece itie of life. (f thi lee) i di turbed' the "ind get

di oriented and it di ru)t the health cycle. (f thi di ru)tion i brought about in odd hour )reventing an individual fro" getting nor"al lee)' it al o cau e energy di balance' indige tion and al o affect cardiova cular health. ,he e y")to" ' therefore' "a0e lee) o e ential that it de)rivation %ould re ult in "ental and )hy ical torture both. (t ha a %ide range of negative effect . (t al o i")air the nor"al functioning and )erfor"ance of an individual %hich i co")ul ory in day4to4day life of a hu"an being. $lee)' therefore' i a elf re!uvenating ele"ent of our life cycle and i ' therefore' )art and )artial of hu"an life. ,he di ru)tion of lee) i to de)rive a )er on of a ba ic )riority' re ulting in adver e "etabolic effect . (t i a "edicine for %earine %hich if i")eded %ould lead to di a trou re ult .

12.

1e)rivation of lee) ha tu"ultuou adver e effect . (t cau e a tir

and di turb the 5uiet and )eace of an individual; )hy ical tate. . natural )roce %hich i inherent in a hu"an being if di turbed obviou ly affect

ba ic life. (t i for thi rea on that if a )er on i de)rived of lee)' the effect thereof' i treated to be torturou . ,o ta0e a%ay the right of natural re t i al o therefore violation of a hu"an right. (t beco"e a violation of a funda"ental 235

right %hen it i di turbed intentionally' unla%fully and for no !u tification. ,o arou e a )er on uddenly' bring about a feeling of hoc0 and benu"bne . ,he )re ure of a udden a%a0ening re ult in al"o t a void of en ation. $uch an action' therefore' doe affect the ba ic life of an individual. ,he tate of lee)ing i a u"ed by an individual %hen he i in a afe at"o )here. (t i for thi rea on that thi natural y te" ha been inbuilt by our creator to )rovide rela6ation to a hu"an being. ,he "u cle are rela6ed and thi cycle ha a nor"al recurrence every night and la t for everal hour . ,hi nece ity i o e ential that even all our tran )ort y te" )rovide for facilitie of lee)

%hile travelling. $lee) i therefore' both' life and inherent liberty %hich cannot be ta0en a%ay by any un cru)ulou action. .n (ri h -roverb goe on to ay that the beginning of health i lee). ,he tate of lee) ha been

de cribed by Ho"er in the fa"ou e)ic (liad a < lee) i the t%in of death<. . )er on' therefore' cannot be )re u"ed to be engaged in a cri"inal activity or an activity to di turb )eace of "ind %hen a lee). .ri totle' the great =ree0 )hilo o)her ha )er on %a aid that all "en are ali0e %hen a lee). ,o )re u"e that a

che"ing to di ru)t )ublic )eace %hile a lee) %ould be un!u t

and %ould be entering into the drea" of that )er on.

236

13.

( a" be%ildered to find out a to ho% uch declaration of the

intention to i")o e the )rohibition %a affected on a lee)ing cro%d. ,here "ay be a rea on available to i")o e )rohibitory order calling u)on an a e"bly to di )er e' but to "e' there doe not a))ear to be any )lau ible rea on for the )olice to re ort to blo% on a lee)ing cro%d and to thro% the" out of their enca")"ent abru)tly. ,he affidavit and e6)lanation given do not di clo e a to %hy the )olice could not %ait till "orning and )rovide a rea onable ti"e to thi cro%d to di )er e )eacefully. ,he undue ha te cau ed a huge di array and re ulted in a cata tro)he that %a %itne ed on /edia and ,elevi ion throughout the country. ( fail to find any e6)lanation for the gravity or the urgent ituation re5uiring uch an e"ergent action at thi dar0 hour of "idnight. (' therefore' in the ab ence of any uch !u tification have no o)tion but to de)recate uch action and it al o ca t a eriou doubt about the e6i tence of the ufficiency of rea on for uch action. ,he incident in thi litigation i an e6a")le of a %eird e6)re ion of the de ire of a tyrannical "ind to threaten )eaceful life uddenly for no !u tification. ,hi cou)led %ith %hat i under tood of lee) hereinbefore' "a0e it clear that the )reci)itate action %a nothing but a clear violation of hu"an right and a definite violation of )rocedure for achieving the end of di )er ing a cro%d.

237

14.

.rticle 355 of the +on titution )rovide that the =overn"ent of every

$tate %ould act in accordance %ith the )rovi ion of the +on titution. ,he )ri"ary ta 0 of the $tate i to )rovide ecurity to all citi*en %ithout violating hu"an dignity. -o%er conferred u)on the tatutory authoritie have to be' )erforce' ad"itted. 3onethele ' the very e ence of con titutionali t i al o that no organ of the $tate "ay arrogate to it elf )o%er beyond %hat i )ecified in the +on titution. >?ide@ G,5 I"!.-%' $- L%!. 2. A"'. 6. I"#&m$ Ta7 O11 #$' 2. A"'.' >2011) 4 $++ 36A and Na"! " S."!a' 2 O'-. 6. S%a%$ &1 C88a% -9a'8' .(8 2011 $+ 2839).

15.

(n H.H. Ma8a'a:a!8 'a:a Ma!8a6 Ra& J 6a:

Ra& S# "! a

Ba8a!.' 2 O'-. 6. U" &" &1 I"! a0 .(8 1971 $+ 530' thi +ourt held that even in civil co""otion or even in %ar or )eace' the $tate cannot act cata tro)hically out ide the ordinary la% and there i legal re"edy for it %rongful act again t it o%n ub!ect or even a friendly alien %ithin the $tate. 16. (n M)S M&% lal Pa!am4a% S.9a' M ll- C&. L%!. 6. S%a%$ &1 U.P. 2.

O'-.' .(8 1979 $+ 621' thi +ourt held that rule of la% "ean ' no one' ho%ever' high or lo% i above the la%. Bveryone i ub!ect to the la% fully 238

and co")letely a any other and the =overn"ent i no e6ce)tion. ,herefore' the $tate authoritie are under a legal obligation to act in a "anner that i fair and !u t. (t ha to act hone tly and in good faith. ,he )ur)o e of the =overn"ent i al%ay to erve the country and en ure the )ublic good. >$ee al o@ D.5. Ba-. 6. S%a%$ &1 W$-% B$"9al' .(8 1997 $+ 610).

17.

-rivacy and dignity of hu"an life ha al%ay been con idered a

funda"ental hu"an right of every hu"an being li0e any other 0ey value uch a freedo" of a ociation and freedo" of )eech. ,herefore' every act %hich offend or i")air hu"an dignity tanta"ount to de)rivation )ro tanto of hi right to live and the $tate action "u t be in accordance %ith rea onable' fair and !u t )rocedure e tabli hed by la% %hich tand the te t of other funda"ental right . >?ide@ F'a"# - C&'al $ M.ll " 6. T8$ A!m " -%'a%&'0 U" &" T$'' %&'/ &1 D$l8 2. O'-.' .(8 1981 $+ 746). 18. ,he +on titution doe not "erely )ea0 for hu"an right )rotection.

(t i evident fro" the catena of !udg"ent of thi +ourt that it al o )ea0 of )re ervation and )rotection of "an a %ell a ani"al ' all creature ' )lant ' river ' hill and environ"ent. 2ur +on titution )rofe e for collective life

239

and collective re )on ibility on one hand and individual right re )on ibilitie on the other hand. 19.

and

(n 58a'a; S "98 6. S%a%$ &1 U.P. 2 O'-. ' .(8 1963 $+ 1295A and

G&6 "! 6. S%a%$ &1 Ma!8/a P'a!$-8 2 A"'. ' .(8 1975 $+ 1378' thi +ourt held that right to )rivacy i a )art of life under .rticle 21 of the +on titution %hich ha )ecifically been re4iterated in P$&4l$<- U" &" 1&'

C 6 l L =$'% $- 6. U" &" &1 I"! a 2. A"'. ' .(8 1997 $+ 568' %herein thi +ourt held@ We do not entertain any doubt that the word 'life' in Article 21 bears the same signification. Is then the word 'personal liberty' to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal It might not be inappropriate to refer here to the words of the preamble to the !onstitution that it is designed to 'assure the dignity of the individual' and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these ob"ectives of the framers merely to draw attention to the concepts underlying the !onstitution which would point to such vital words as 'personal liberty' having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those ob"ectives and by no means to stretch the meaning of the phrase to s#uare with any preconceived notions or doctrinaire constitutional theories$. >B")ha i added).

240

20.

,he citi*en C)er on have a right to lei ureA to lee)A not to hear and

to re"ain ilent. ,he 0noc0 at the door' %hether by day or by night' a a )relude to a earch %ithout authority of la% a"ount to be )olice incur ion into )rivacy and violation of funda"ental right of a citi*en. >$ee@ W&l1 6. C&l&'a!&' >1948) 338 D$ 25). 21. 8ight to )rivacy ha been held to be a funda"ental right of the citi*en

being an integral )art of .rticle 21 of the +on titution of (ndia by thi +ourt. (llegiti"ate intru ion into )rivacy of a )er on i not )er"i ible a right to )rivacy i i")licit in the right to life and liberty guaranteed under our +on titution. $uch a right ha been e6tended even to %o"an of ea y virtue a he ha been held to be entitled to her right of )rivacy. Ho%ever' right of

)rivacy "ay not be ab olute and in e6ce)tional circu" tance )articularly urveillance in con onance %ith the tatutory )rovi ion "ay not violate uch a right. >?ide@ Mala; S "98 $%#. 6. S%a%$ &1 P.":a= 2 Ha'/a"a 2 O'- .' .(8 1981 $+ 760A S%a%$ &1 Ma8a'a-8%'a 2 A"'. 6. Ma!8.;a' Na'a/a" Ma'! ;a'' .(8 1991 $+ 207A R. Ra:a9&4al > R.R. G&4al 2 A"'. 6. S%a%$ &1 Tam l Na!. 2 O'-.' .(8 1995 $+ 264A PUCL 6. U" &" &1 I"! a 2 A"'.' .(8 1997 $+ 568A M'. ?@A 6. H&-4 %al ?BA0 >1998) 8 $++ 296A S8a'!a 6. D8a'm4al' >2003) 4 $++ 493 A P$&4l$A- U" &" 1&' C 6 l L =$'% $- (PUCL) 241

2 A"'. 6. U" &" &1 I"! a 2 A"'. ' .(8 2003 $+ 2363 A D -%' #% R$9 -%'a' a"! C&ll$#%&'0 H/!$'a=a! 2 A"'. 6. Ca"a'a Ba"; 2 O'-. ' >2005) 1 $++ 496 A B8a6$-8 Ja/a"% La;8a" 6. S%a%$ &1 Ma8a'a-8%'a 2 O'-.0 >2009) 9 $++ 551A and Sm%. S$l6 1974). 22. (n Ram J$%8mala" 2 O'-. 6. U" &" &1 I"! a 2 O'-. ' >2011) 8 $++ 2 O'-. 6. S%a%$ &1 5a'"a%a;a0 .(8 2010 $+

1' thi +ourt dealt %ith the right of )rivacy elaborately and held a under@ %ight to privacy is an integral part of right to life. &his is a cherished constitutional value' and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner((. &he solution for the problem of abrogation of one )one of constitutional values cannot be the creation of another )one of abrogation of constitutional values(.. &he notion of fundamental rights' such as a right to privacy as part of right to life' is not merely that the *tate is en"oined from derogating from them. It also includes the responsibility of the *tate to uphold them against the actions of others in the society' even in the context of exercise of fundamental rights by those others+. 23. other ,he court have al%ay i")o ed the )enalty on di turbing )eace of by u ing the a")lifier or beating the dru" even in religiou

cere"onie . >?ide@ Ra= " M.;8$':$$ 2. O'-. 6. S%a%$ &1 W$-% B$"9al 2. O'-.' .(8 1985 +al. 222A B.''a=aCa' F '$D&';- D$al$'- A--&# a% &" 6. C&mm -- &"$' &1 P&l #$0 Cal#.%%a' .(8 1998 +al 121A C8.'#8 &1 G&! (F.ll 242

G&-4$l) " I"! a 6. 5.5.R. Ma:$-% # C&l&"/ W$l1a'$ A--". 2. O'-. ' .(8 2000 $+ 2773A and F&'.m0 P'$6$"% &" &1 E"6 '&"m$"% a"! S&."! P&ll.% &" 6. U" &" &1 I"! a 2. O'-. ' .(8 2006 $+ 348). (n the later !udg"ent' thi court i ued everal direction including banning of u ing the fire%or0 or fire crac0er e6ce)t bet%een 6.00 a.". and 10.00 ).". ,here hall no u e of fire crac0er in ilence *one i.e. %ithin the area le than 100

"eter around ho )ital ' educational in titution ' court ' religiou )lace . 24. (t i in vie% of thi fact that' in "any countrie there are co")lete

night curfe% >at the air)ort i.e. banning of landing and ta0ing off bet%een the night hour )' for the rea on that the conce)t of ound lee) ha been a ociated %ith ound health %hich i in e)arable facet of .rticle 21 of the +on titution. 25. (t "ay al o be )ertinent to "ention here that variou tatutory

)rovi ion )rohibit arre t of a !udg"ent debtor in the night' a %o"an %anted in a cri"inal ca e after un et and before unri e and re train to enter in the night into a con tructed area u )ected to have been rai ed in violation of the anctioned )lan' "a ter )lan or Eonal -lan for the )ur)o e of urvey or de"olition.

243

>$ee@ $.55 of +ode of +ivil -rocedureA $.46>4) +r.-.+.A and $ection 25 and 42 of the D.-. Drban -lanning and 1evelo)"ent .ct' 1973). 26. Fhile deter"ining uch "atter the crucial i ue in fact i not

%hether uch right e6i t' but %hether the $tate ha a co")elling intere t in the regulation of a ub!ect %hich i %ithin the )olice )o%er of the $tate. Dndoubtedly' rea onable regulation of ti"e' )lace and "anner of the act of lee)ing %ould not violate any con titutional guarantee' for the rea on that a )er on "ay not clai" that lee)ing i hi funda"ental right' and therefore' he ha a right to lee) in the )re"i e of the $u)re"e +ourt it elf or %ithin the )recinct of the -arlia"ent. 27. ho"ele /ore o' ( a" definitely not dealing herein %ith the right of )er on %ho "ay clai" right to lee) on foot)ath or )ublic

)re"i e but re trict the ca e only to the e6tent a under %hat circu" tance a lee)ing )er on "ay be di turbed and ( a" of the vie% that the $tate

authoritie cannot de)rive a )er on of that right any%here and at all ti"e . 28. Fhile dealing %ith the violation of Hu"an 8ight by -olice

2fficial ' thi +ourt in P' %8 4al S "98 2 O'-. 6. S%a%$ &1 P.":a= 2 A"'. >2012) 1 $++ 10' held a under@ 244

$&he right to life has rightly been characteri)ed as $supreme$ and 'basic', it includes both so-called negative and positive obligations for the *tate$. &he negative obligation means the overall prohibition on arbitrary deprivation of life. In this context' positive obligation re#uires that *tate has an overriding obligation to protect the right to life of every person within its territorial "urisdiction.$ 29. ,hu ' it i evident that right of )rivacy and the right to lee) have

al%ay been treated to be a funda"ental right li0e a right to breathe' to eat' to drin0' to blin0' etc. 30. $ection 144 +r.-.+. deal %ith i""ediate )revention and )eedy

re"edy. ,herefore' before invo0ing uch a )rovi ion' the tatutory authority "u t be ati fied regarding the e6i tence of the circu" tance ho%ing the

nece ity of an i""ediate action. ,he sine #ua non for an order under $ection 144 +r.-.+. i urgency re5uiring an i""ediate and )eedy intervention by )a ing of an order. ,he order "u t et out the "aterial fact of the ituation. $uch a )rovi ion can be u ed only in grave circu" tance for "aintenance of )ublic )eace. ,he efficacy of the )rovi ion i to )revent o"e har"ful occurrence i""ediately. ,herefore' the e"ergency "u t be udden and the con e5uence ufficiently grave.

245

31.

,he di obedience of the )ro)itiatory order beco"e )uni hable under

$ection 188 (.-.+. only <if uch di obedience cau e or tend to cau e ob truction' annoyance or in!ury' or ri 0 of ob truction' annoyance or in!ury to any )er on la%fully e")loyed< or <if uch di obedience cau e or tend to cau e da"age to hu"an life' health or afety or cau e or tend to cau e riot or affray<. 1i obedience of an order by )ublic ervant la%fully e")o%ered %ill not be an offence unle con e5uence uch di obedience lead to enu"erated

tated under the )rovi ion of $ection 188 (-+. /ore o' a

violation of the )ro)itiatory order cannot be ta0en cogni*ance of by the /agi trate %ho )a ed it. He ha to )refer a co")laint about it a )rovided under $ection 195 >l)>a) (-+. . co")laint i not "aintainable in the ab ence of allegation of danger to life' health or afety or of riot or affray. 32. $ection 144 +r.-.+. it elf )rovide the "ode of ervice of the order in

the "anner )rovided by $ection 134 +r.-.+@ $ection 134 +r.-.+. read a under@ <$ervice or notification of order. 4 >1) ,he order hall' if )racticable' be erved on the )er on again t %ho" it i "ade' in the "anner herein )rovided for ervice of a u""on . >2) (f uch order cannot be o erved' it hall be notified by )rocla"ation' )ubli hed in uch "anner' a the $tate 246

=overn"ent "ay' by rule ' direct' and a co)y thereof hall be tuc0 u) at uch )lace or )lace a "ay be fitte t for conveying the infor"ation to uch )er on . 33. 1elhi -olice $tanding 2rder 309 4 8egulation of -roce ion and

8ule )re cribe the "ode of ervice of the order )a ed under $ection 144 +r.-.+.' inter-alia@ 66 66 66

>5) .rrange"ent at the )lace of de"on tration hould include the follo%ing@ a) 1i )lay of banner indicating )ro"ulgation of $ection 144 +r.-.+. b) .t lea t 2 videogra)her be available on either ide of the de"on tration to ca)ture both de"on trator a %ell a )olice re )on eCaction. c) :ocation of ."bulanceC-+8 van for hifting in!ured )er on . d) :oud hailer hould be available.

>6) 8e)eated u e of -. y te" a re )on ible officer4 a))ealingCadvi ing the leader and de"on trator to re"ain )eaceful and co"e for%ard for "e"orandu"Cde)utation etc. or court arre t )eacefully. .nnounce"ent hould be videogra)hed. >7) (f they do not follo% a))eal and turn violent declare the a e"bly unla%ful on -. y te" G videogra)h. >8) Farning on -. y te" )rior to u e of any 0ind of force "u t be en ured and al o videogra)hed. 247

66

66

66

>13) $)ecial attention be )aid %hile dealing %ith %o"en; de"on tration 4 only %o"en )olice to tac0le the". 34. under@ <>i) %herea infor"ation ha been received that o"e )eo)leCgrou) of )eo)le indulge in unla%ful activitie to di turb the )eace and tran5uillity in the area of $ub 1iv. &a"la /ar0et' 1elhi. >ii) .nd %herea re)ort have been received indicating that uch condition no% e6i t that unre tricted holding of )ublic "eeting' )roce ion Cde"on tration etc. in the area i (i0ely to cau e ob truction to traffic' danger to hu"an afety and di turbance of )ublic tran5uillity. >iii) .nd %herea it i nece ary to ta0e )eedy "ea ure in thi regard to )revent danger to hu"an life' afety and di turbance of )ublic tran5uillity. >iv) 3o%' therefore' in e6erci e of the )o%er conferred u)on "e by virtue of $ection 144 +ri"inal -rocedure +ode 1973 read %ith =ovt. of (ndia' /ini try of Ho"e .ffair and 3e% 1elhi; 3otification 3o. D.11036C1C2010' >i) D,(' dated 09.09.2010. ( /anohar $ingh' . i tant +o""i ioner of -olice' $ub41ivi ion &a"la /ar0et' +entral 1i trict' 1elhi do hereby "a0e thi %ritten order )rohibiting. 66 66 66 ,he order dated 4.6.2011 )a ed under $ection 144 +r.-.+. read a

>vi) .ny )er on contravening thi order hall be liable to be )uni hed in accordance %ith the )rovi ion of ection 188 of the (ndian -enal +odeA and 248

>vii) . the notice cannot be erved individually on all concerned' the order i hereby )a ed e64)arte. (t hall be )ubli hed for the infor"ation of the )ublic through the )re and by affi6ing co)ie on the notice board of the office of all 1+- ' .ddl. 1+- ' .+- ' ,eh il officer ' all )olice tation concerned and the office of the 31/+ and /+1. >viii) 8eligiou function C)ublic "eeting etc. can be held %ith )rior )er"i ion' in %riting' of 1e)uty +o""i ioner of -olice' +entral 1i trict' 1elhi and thi order hall not a))ly to )roce ion %hich have the re5ui ite )er"i ion of the -olice.< 35. (t i evident fro" the order )a ed under $ection 144 +r.-.+. it elf

that the )eo)le at large' lee)ing in tent ' had not been infor"ed about uch )ro"ulgation and %ere not a 0ed to leave the )lace. ,here had been a di )ute regarding the ervice of the order on the organi*er only. ,herefore' there %a utter confu ion and the gathering could not even under tand %hat the real di )ute %a and had rea on to believe that )olice %a trying to evict 7aba 8a"dev forcibly. .t no )oint of ti"e' the a e"bly %a declared to be unla%ful. (n uch a fact4 ituation' the )olice ad"ini tration i to be bla"ed for not i")le"enting the order' by trict adherence to the )rocedural

re5uire"ent . -eo)le at large have a legiti"ate e6)ectation that B6ecutive .uthority %ould en ure trict co")liance to the )rocedural re5uire"ent and

249

%ould certainly not act in derogation of a))licable regulation . ,hu ' the )re ent i a clear cut ca e of Hu"an 8ight violation. 36. ,here %a no go i) or di cu ion of o"ething untrue that %a

going on. ,o the contrary' it %a ad"ittedly an a e"bly of follo%er ' under a )eaceful banner of 9ogic training' fa t a lee). ,he a e"bly %a at lea t' )ur)ortedly' a conglo"eration of individual gathered together' e6)re ive of a deter"ination to i")rove the "aterial condition of the hu"an race. ,he ai" of the a e"bly %a )ri"a facie unob!ectionable and %a not to infla"e )a ion . (t %a to %ard off o"ething har"ful. Fhat %a u )iciou or

con )iratory about the a e"bly' "ay re5uire an inve tigation by the a))ro)riate foru"' but to "y "ind the i")le"entation a))ear to have been done in an unla%ful and derogatory "anner that did violate the ba ic hu"an right of the cro%d to have a ound lee) %hich i al o a con titutional freedo"' ac0no%ledged under .rticle 21 of the +on titution of (ndia. 37. $uch an a e"bly i nece arily illegal cannot be )re u"ed' and even %ere all a lee) %ho %ere ta0en by ur)ri e

if it %a ' the individual

altogether for a i"ultaneou i")le"entation and action under $ection 144 +r.-.+. %ithout being )receded by an announce"ent or even other%i e' giving no ti"e in a rea onable %ay to the a e"bly to di )er e fro" the 250

8a"lila =round. ,o the contrary' the

lee) of thi

huge cro%d %a

i""ode tly and brutally outraged and it %a di )er ed by force "a0ing the" flee hither and thither' %hich by uch )reci)itate action' cau ed a "ayhe" that %a reflected in the "edia. 38. .n individual i entitled to lee) a co"fortably and a freely a he

breathe . $lee) i e ential for a hu"an being to "aintain the delicate balance of health nece ary for it very e6i tence and urvival. $lee) i ' therefore' a funda"ental and ba ic re5uire"ent %ithout %hich the e6i tence of life it elf %ould be in )eril. ,o di turb lee)' therefore' %ould a"ount to torture %hich i no% acce)ted a a violation of hu"an right. (t %ould be i"ilar to a third degree "ethod %hich at ti"e i ought to be !u tified a a nece ary )olice

action to e6tract the truth out of an accu ed involved in heinou and cold4 blooded cri"e . (t i al o a device ado)ted during %arfare %here )ri oner of %ar and tho e involved in e )ionage are ub!ected to treat"ent de)riving the" of nor"al lee). 39. +an uch an atte")t be )er"itted or !u tified in the given

circu" tance of the )re ent ca eH #udicially and on the trength of i")artial logic' the an %er ha to be in the negative a a lee)ing cro%d cannot be included %ithin the brac0et of an unla%ful category unle "aterial to brand it a there i ufficient

uch. ,he fact a uncovered and the )rocedural 251

"andate having been blatantly violated' i "alice in la% and al o the )art )layed by the )olice and ad"ini tration ho% the outrageou behaviour %hich cannot be !u tified by la% in any civili*ed ociety. Ior the rea on afore aid' ( concur %ith the direction i ued by "y learned colleague %ith a fore%arning to the re )ondent to )revent any re)etition of uch ha ty and un%arranted act affecting the afe living condition of the citi*en C)er on in thi country. ....33333333..J. (D'. B.S. CHAUHAN) N$D D$l8 0 F$='.a'/ 2E0 2012

252