Feb 242012
 

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 SECRETARY, UNION OF INDIA & ORS.

J U D G M E N T

Swatanter Kumar, 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(2) and

19(3) respectively, I would also gauge the dimensions of legal

provisions in relation to the exercise of jurisdiction by the

empowered officer in passing an order under Section 144 of the

Code of Criminal Procedure, 1973 (for short `Cr.P.C.’).

2. It appears justified here to mention the First Amendment to

the United States (US) Constitution, a bellwether in the pursuit of

expanding the horizon of civil liberties. This Amendment provides

for the freedom of speech of press in the American Bill of Rights.

This Amendment added new dimensions to this right to freedom

and purportedly, without any limitations. The expressions used in

wording the Amendment have a wide magnitude and are capable of

liberal construction. It reads as under :

“Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.”

3. The 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. Shortly thereafter, as a result of

widening of the power of judicial review, the US Supreme Court

preferred to test each case on the touchstone of the rule of `clear-

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and-present-danger’. However, application of this rule was unable

to withstand the pace of development of law and, therefore, through

its judicial pronouncements, the US Supreme Court applied the

doctrine of `balancing of interests’. The cases relating to speech did

not simply involve the rights of the offending speaker but typically

they presented a clash of several rights or a conflict between

individual rights and necessary functions of the Government.

Justice Frankfurter often applied the above-mentioned Balancing

Formula and concluded that “while the court has emphasized the

importance of `free speech’, it has recognized that free speech is not

in itself a touchstone. The 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.”

4. The `balancing of interests’ approach is basically derived from

Roscoe Pound’s theories of social engineering. Pound had insisted

that his structure of public, social and individual interests are all,

in fact, individual interests looked at from different points of view

for the purpose of clarity. Therefore, in order to make the system

work properly, it is essential that when interests are balanced, all

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claims must be translated into the same level and carefully

labelled. Thus, a social interest may not be balanced against

individual interest, but only against another social interest. The

author points out that throughout the heyday of the clear-and-

present-danger and preferred position doctrines, the language of

balancing, weighing or accommodating interests was employed as

an integral part of the libertarian position. [Freedom of Speech: The

Supreme Court and Judicial Review, by Martin Shapiro, 1966]

5. Even in the United States there is a recurring debate in

modern First Amendment Jurisprudence as to whether First

Amendment rights are `absolute’ in the sense that the Government

may not abridge them at all or whether the First Amendment

requires the `balancing of competing interests’ in the sense that free

speech values and the Government’s competing justification must

be isolated and weighted in each case. Although the First

Amendment to the American Constitution provides that Congress

shall make 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

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Government 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.

Freedom of speech, thus, does not comprehend the right to speak

on any subject at any time. In the case of Schenck v. United States

[63 L ed 1173], the Court held :

“The character of every act depends upon the

circumstances in which it is done. The 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 injunction against

uttering words that have all the effect of

force….the question 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.”

[Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi]

6. In contradistinction to the above approach of the US Supreme

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 citizen of

the country under Article 19(1)(b). However, these rights are not

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free from any restrictions and are not absolute in their terms and

application. Articles 19(2) and 19(3), respectively, control the

freedoms available to a citizen. Article 19(2) empowers the State to

impose reasonable restrictions on exercise of the right to freedom of

speech and expression in the interest of the factors stated in the

said clause. Similarly, Article 19(3) enables the State to make any

law imposing reasonable restrictions on the exercise of the right

conferred, again in the interest of the factors stated therein.

7. In face of this constitutional mandate, the American doctrine

adumbrated in Schenck’s case (supra) cannot be imported and

applied. Under our Constitution, this right is not an absolute right

but is subject to the above-noticed restrictions. Thus, the position

under our Constitution is different.

8. In `Constitutional Law of India’ by H.M. Seervai (Fourth Edn.),

Vol.1, the author has noticed that the provisions of the two

Constitutions as to freedom of speech and expression are

essentially different. The difference being accentuated by the

provisions of the Indian Constitution for preventive detention which

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have no counterpart in the US Constitution. Reasonable restriction

contemplated under the Indian Constitution brings the matter in

the domain of the court as the question of reasonableness is a

question primarily for the Court to decide. {Babulal Parate v. State

of Maharashtra [(1961) 3 SCR 423]}.

9. The fundamental right enshrined in the Constitution itself

being made subject to reasonable restrictions, the laws so enacted

to specify certain restrictions on the right to freedom of speech and

expression have to be construed meaningfully and with the

constitutional object in mind. For instance, the right to freedom of

speech and expression is not violated by a law which requires that

name of the printer and publisher and the place of printing and

publication should be printed legibly on every book or paper.

10. Thus, there is a marked distinction in the language of law, its

possible interpretation and application under the Indian and the

US laws. It is significant to note that the freedom of speech is the

bulwark of democratic Government. This freedom is essential for

proper functioning of the democratic process. The freedom of

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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. Freedom of speech plays a

crucial role in the formation of public opinion on social, political

and economic matters. It has been described as a “basic human

right”, “a natural right” and the like. With the development of law

in India, the right to freedom of speech and expression has taken

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 backdrop of the factual matrix, it will be of some concern for

this Court to examine the constitutional scheme and the historical

background of the relevant Articles relating to the right to freedom

of speech and expression in India. The 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.

This gave to the citizens of this country a very valuable right, which

is the essence of any democratic system. There could be no

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expression without these rights. Liberty 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. Placed 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. (Ref. Preamble, The Spirit and Backbone of the

Constitution of India, by Justice R.C. Lahoti). These valuable

fundamental rights are subject to restrictions contemplated under

Articles 19(2) and 19(3), respectively. Article 19(1) was subjected to

just one amendment, by the Constitution (44th Amendment) Act,

1979, vide which Article 19(1)(f) was repealed. Since the

Parliament felt the need of amending Article 19(2) of the

Constitution, it was substituted by the Constitution (First

Amendment) Act, 1951 with retrospective effect. Article 19(2) was

subjected to another amendment and vide the Constitution

(Sixteenth Amendment) Act, 1963, the expression “sovereignty and

integrity of India” was added. The pre-amendment Article had

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empowered the State to make laws imposing reasonable restrictions

in exercise of the rights conferred under Article 19(1)(a) in the

interest of the security of the State, friendly relations with foreign

states, public order, decency or morality or in relation to contempt

of court, defamation or incitement of an offence. To 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 State could enact a law to place

reasonable restrictions upon the freedom of speech and expression.

12. This shows that the State has a duty to protect itself against

certain unlawful actions and, therefore, may enact laws which

would ensure such protection. The right that springs from Article

19(1)(a) is not absolute and unchecked. There cannot be any

liberty absolute in nature and uncontrolled in operation so as to

confer a right wholly free from any restraint. Had there been no

restraint, the rights and freedoms may become synonymous with

anarchy and disorder. {Ref.: State of West Bengal Vs. Subodh Gopal

Bose [AIR 1954 SC 92]}.

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13. I consider it appropriate to examine the term `liberty’, which is

subject to reasonable restrictions, with reference to the other

constitutional rights. Article 21 is the foundation of the

constitutional scheme. It grants to every person the right to life

and personal liberty. This Article prescribes a negative mandate

that no person shall be deprived of his life or personal liberty except

according to the procedure established by law. The procedure

established by law for deprivation of rights conferred by this Article

must be fair, just and reasonable. The rules of justice and fair

play require that State action should neither be unjust nor unfair,

lest it attracts the vice of unreasonableness, thereby vitiating the

law which prescribed that procedure and, consequently, the action

taken thereunder.

14. Any action taken by a public authority which is entrusted with

the statutory power has, therefore, to be tested by the application of

two standards – 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

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under which that action is taken is itself unreasonable. The

concept of `procedure established by law’ changed its character

after the judgment of this Court in the case of Maneka Gandhi v.

UOI [AIR 1978 SC 597], where this Court took the view as under :

“The principle of reasonableness, which

legally as well as philosophically is an

essential element of equality or non

arbitrariness pervades Article 14 like a

brooding omnipresence and the procedure

contemplated by Article 21 must answer the

test of reasonableness in order to be right and

just and fair and not arbitrary fanciful or

oppressive otherwise it would be no procedure

at all and the requirement of Article 21 would

not be satisfied.”

This was also noted in the case of Madhav Hayawadanrao

Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court

took the following view:

“Procedure established by law are words of

deep meaning for all lovers of liberty and

judicial sentinels.”

15. What emerges from the above principles, which has also been

followed in a catena of judgments of this Court, is that the law itself

has to be reasonable and furthermore, the action under that law

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has to be in accordance with the law so established. Non-

observance of either of this can vitiate the action, but if the former

is invalid, the latter cannot withstand.

16. Article 13 is a protective provision and an index of the

importance and preference that the framers of the Constitution

gave to Part III. In terms of Article 13(1), the laws in force before

the commencement of the Constitution, in so far as they were

inconsistent with the provisions of that Part were, to the extent of

such inconsistency, void. It also fettered the right of the State in

making laws. The State is not to make any law which takes away

or abridges the rights conferred by this Part 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 Part III

itself and Article 13(4) of the Constitution, this Article is the

reservoir of the fundamental protections available to any

person/citizen.

17. While these are the guaranteed fundamental rights, Article 38,

under the Directive Principles of State Policy contained in Part IV of

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the Constitution, places a constitutional obligation upon the State

to strive to promote the welfare of the people by securing and

protecting, as effectively as it may, a social order in which justice –

social, economic and political – shall inform all the institutions of

the national life. Article 37 makes the Directive Principles of State

Policy fundamental in governance of the country and provides that

it shall be the duty of the State to apply these principles in making

laws.

18. With the development of law, even certain matters covered

under this Part relating to Directive Principles have been uplifted to

the status of fundamental rights, for instance, the right to

education. Though this right forms part of the Directive Principles

of State Policy, compulsory and primary education has been treated

as a part of Article 21 of the Constitution of India by the courts,

which consequently led to the enactment of the Right of Children to

Free and Compulsory Education Act, 2010.

19. Article 51A deals with the fundamental duties of the citizens.

It, inter alia, postulates that it shall be the duty of every citizen of

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India to abide by the Constitution, to promote harmony and the

spirit of common brotherhood, to safeguard public property and to

abjure violence.

20. Thus, a common thread runs through Parts III, IV and IVA of

the Constitution of India. One Part enumerates the fundamental

rights, the second declares the fundamental principles of

governance and the third lays down the fundamental duties of the

citizens. While interpreting any of these provisions, it shall always

be advisable to examine the scope and impact of such

interpretation on all the three constitutional aspects emerging from

these parts. It is necessary to be clear about the meaning of the

word “fundamental” as used in the expression “fundamental in the

governance of the State” to describe the directive principles which

have not legally been made enforceable. Thus, the word

“fundamental” has been used in two different senses under our

Constitution. The 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. The word “fundamental” in Article 37 also means

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basic or essential, but it is used in the normative sense of setting,

before the State, 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

judicial pronouncements.

21. As difficult as it is to anticipate the right to any freedom or

liberty without any reasonable restriction, equally difficult it is to

imagine the existence of a right not coupled with a duty. The duty

may be a direct or indirect consequence of a fair assertion of the

right. Part III of the Constitution of India although confers rights,

still duties and restrictions are inherent thereunder. These rights

are basic in nature and are recognized and guaranteed as natural

rights, inherent in the status of a citizen of a free country, but are

not absolute in nature and uncontrolled in operation. Each one of

these rights is to be controlled, curtailed and regulated, to a certain

extent, by laws made by the Parliament or the State Legislature. 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

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Constitution, on a prima facie case of such violation being made

out, the onus shifts upon the State to show that the legislation

comes within the permissible restrictions set out in clauses (2) to

(6) of Article 19 and that the particular restriction is reasonable. It

is for the State to place on record appropriate material justifying

the restriction and its reasonability. Reasonability of restriction is a

matter which squarely falls within the power of judicial review of

the Courts. Such limitations, therefore, indicate two purposes; one

that the freedom is not absolute and is subject to regulatory

measures and the second that there is also a limitation on the

power of the legislature to restrict these freedoms. The legislature

has to exercise these powers within the ambit of Article 19(2) of the

Constitution.

22. Further, there is a direct and not merely implied responsibility

upon the Government to function openly and in public interest.

The Right to Information itself emerges from the right to freedom of

speech and expression. Unlike an individual, the State owns a

multi-dimensional responsibility. It has to maintain and ensure

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security of the State 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 citizen or a group of citizens may assert. The State 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. Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], this Court

noticed as under :

“45. The problem of defining the area of

freedom of expression when it appears to

conflict with the various social interests

enumerated under Article 19(2) may briefly be

touched upon here. There 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 equal weight. Our

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. The anticipated danger should

not be remote, conjectural or far-fetched. It

should have proximate and direct nexus with

the expression. The expression of thought

should be intrinsically dangerous to the public

interest. In other words, the expression should

be inseparably locked up with the action

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contemplated like the equivalent of a “spark in

a power keg”.”

23. Where the Court applies the test of `proximate and direct

nexus with the expression’, the Court also has to keep 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. The Court

would also take into consideration whether the anticipated event

would or would not be intrinsically dangerous to public interest.

24. Now, I would examine the various tests that have been applied

over the period of time to examine the validity and/or reasonability

of the restrictions imposed upon the rights.

Upon the Rights Enshrined in the Constitution

25. No person can be divested of his fundamental rights. They are

incapable of being taken away or abridged. All that the State can

do, by exercise of its legislative power, is to regulate these rights by

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imposition of reasonable restrictions on them. Upon an analysis of

the law, the following tests emerge:-

a) The restriction can be imposed only by or under the

authority of law. It cannot be imposed by exercise of

executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in

Article 19(2).

26. The questions before the Court, thus, are whether the

restriction imposed was reasonable and whether the purported

purpose of the same squarely fell within the relevant clauses

discussed above. The legislative determination of what restriction to

impose on a freedom is final and conclusive, as it is not open to

judicial review. The judgments of this Court have been consistent

in taking the view that it is difficult to define or explain the word

“reasonable” 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

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nor advisable to state any abstract standard or general pattern of

reasonableness as applicable uniformly to all cases. This Court in

the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :-

“It 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.”

27. For adjudging 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

authorized, 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 judicial verdict. [See: Chintamanrao & Anr. v. State of

Madhya Pradesh (AIR 1951 SC 118)].

28. The courts must bear a clear distinction in mind with regard

to `restriction’ and `prohibition’. They are expressions which cannot

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be used inter-changeably as they have different connotations and

consequences in law. Wherever a `prohibition’ is imposed, besides

satisfying all the tests of a reasonable `restriction’, it must also

satisfy the requirement that any lesser alternative would be

inadequate. Furthermore, whether a restriction, in effect, amounts

to a total prohibition or not, is a question of fact which has to be

determined with regard to facts and circumstances of each case.

This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi

Kassab Jamat and Others [(2005) 8 SCC 534] held as under:-

“75. Three propositions are well settled: (i)

‘restriction’ includes cases of ‘prohibition’; (ii) the

standard for judging 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 inadequate; and (iii) whether a

restriction in effect amounts to a total prohibition

is a question 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 right…..”

29. The obvious result of the above discussion is that a restriction

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

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must stand the scrutiny of judicial review. It cannot be arbitrary or

excessive. It must possess a direct and proximate nexus with the

object sought to be achieved. Whenever and wherever any

restriction is imposed upon the right to freedom of speech and

expression, it must be within the framework of the prescribed law,

as subscribed by Article 19(2) of the Constitution.

30. As already noticed, rights, restrictions and duties co-exist.

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. The term `social order’ has a very

wide ambit. It includes `law and order’, `public order’ as well as

`the security of the State’. The security of the State is the core

subject and public order as well as law and order follow the same.

In the case of Romesh Thappar v. State of Madras [1950 SCR 594],

this Court took the view that local breaches of public order were no

grounds for restricting the freedom of speech guaranteed by the

Constitution. This led to the Constitutional (First Amendment)

Act, 1951 and consequently, this Court in the case of Dr. Ram

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Manohar Lohia v. State of Bihar [AIR 1966 SC 740] stated that an

activity which affects `law and order’ may not necessarily affect

`public order’ and an activity which might be prejudicial to `public

order’ may not necessarily affect `security of the State’. 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’.

31. The 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.

32. There 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 citizen without considering

the significance of the duty. The true source of right is duty.

When the courts are called upon to examine the reasonableness of

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a legislative restriction on exercise of a freedom, the fundamental

duties enunciated under Article 51A are of relevant consideration.

Article 51A requires an individual to abide by the law, to safeguard

public property and to abjure violence. It also requires the

individual to uphold and protect the sovereignty, unity and integrity

of the country. All these duties are not insignificant. Part IV of

the Constitution relates to the Directive Principles of the State

Policy. Article 38 was introduced in the Constitution as an

obligation upon the State to maintain social order for promotion of

welfare of the people. By the Constitution (Forty-Second

Amendment) Act, 1976, Article 51A was added to comprehensively

state the fundamental duties of the citizens to compliment the

obligations of the State. Thus, all these duties are of constitutional

significance. It is obvious that the Parliament realized the need for

inserting the fundamental duties as a part of the Indian

Constitution and required every citizen of India to adhere to those

duties. Thus, it will be difficult for any Court to exclude from its

consideration any of the above-mentioned Articles of the

Constitution while examining the validity or otherwise of any

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restriction relating to the right to freedom of speech and expression

available to a citizen under Article 19(1)(a) of the Constitution. The

restriction placed on a fundamental right would have to be

examined with reference to the concept of fundamental duties and

non-interference with liberty of others. Therefore, 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 State, the non-interference with

liberties of others is an essential condition for assertion of the right

to freedom of speech and expression. In the case of Dr. D.C.

Saxena v. Hon’ble the Chief Justice of India [(1996) 5 SCC 216], this

Court held:

“31. If maintenance of democracy is the

foundation for free speech, society equally is

entitled to regulate freedom of speech or

expression by democratic action. The reason is

obvious, viz., that society accepts free speech and

expression and also puts limits on the right of the

majority. Interest of the people involved in the acts

of expression should be looked at not only from

the perspective of the speaker but also the place at

which he speaks, the scenario, the audience, the

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reaction of the publication, the purpose of the

speech and the place and the forum in which the

citizen exercises his freedom of speech and

expression. The State 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. There is a correlative duty not to

interfere with the liberty of others. Each is entitled

to dignity of person and of reputation. Nobody has

a right to denigrate others’ right to person or

reputation. Therefore, 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 market-place. If such speech or expression

was untrue and so reckless as to its truth, the

speaker or the author does not get protection of

the constitutional right.”

33. Every right has a corresponding duty. Part III of the

Constitution of India although confers rights and duties,

restrictions are inherent thereunder. Reasonable regulations have

been found to be contained in the provisions of Part III of the

Constitution of India, apart from clauses (2) to (4) and (6) of Article

19 of the Constitution {See Union of India v. Naveen Jindal and Anr.

[(2004) 2 SCC 510]}.

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34. 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 21 of the Constitution. If the orders

passed by the Executive are backed by a valid and effective law, the

restriction imposed thereby is likely to withstand the test of

reasonableness, which requires it to be free of arbitrariness, to have

a direct nexus to the object and to be proportionate to the right

restricted as well as the requirement of the society, for example, an

order passed under Section 144 Cr.P.C. This order is passed on

the strength of a valid law enacted by the Parliament. The 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. There is a complete channel provided for examining the

correctness or otherwise of such an order passed under Section

144 Cr.P.C. and, therefore, it has been held by this Court in a

catena of decisions that such order falls within the framework of

reasonable restriction.

35. The distinction between `public order’ and `law and order’ is a

fine one, but nevertheless clear. A restriction imposed with `law

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and order’ in mind would be least intruding into the guaranteed

freedom while `public order’ may qualify for a greater degree of

restriction since public order is a matter of even greater social

concern. Out of all expressions used in this regard, as discussed in

the earlier part of this judgment, `security of the state’ is the

paramount and the State 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’. However stringent may these restrictions be, they must

stand the test of `reasonability’. The State would have to satisfy the

Court that the imposition of such restrictions is not only in the

interest of the security of the State but is also within the framework

of Articles 19(2) and 19(3) of the Constitution.

36. It is keeping this distinction in mind, the Legislature, under

Section 144 Cr.P.C., has empowered the District Magistrate, Sub-

Divisional Magistrate or any other Executive Magistrate, specially

empowered in this behalf, to direct any person to abstain from

doing a certain act or to take action as directed, where sufficient

ground for proceeding under this Section exists and immediate

29

prevention and/or speedy remedy is desirable. By virtue of Section

144A Cr.P.C., which itself was introduced by Act 25 of 2005, the

District Magistrate has been empowered to pass an order

prohibiting, in any area within the local limits of his jurisdiction,

the carrying of arms in any procession or the organizing or holding

of any mass drill or mass training with arms in any public place,

where it is necessary for him to do so for the preservation of public

peace, public safety or maintenance of the public order. Section

144 Cr.P.C, therefore, empowers an executive authority, backed by

these provisions, to impose reasonable restrictions vis-`-vis the

fundamental rights. The provisions of Section 144 Cr.P.C. provide

for a complete mechanism to be followed by the Magistrate

concerned and also specify the limitation of time till when such an

order may remain in force. It also prescribes the circumstances

that are required to be taken into consideration by the said

authority while passing an order under Section 144 Cr.P.C.

37. In Babu Lal Parate (supra) where this Court was concerned

with the contention raised on behalf of the union of workers that

the order passed in anticipation by the Magistrate under Section

30

144 Cr.P.C. was an encroachment on their rights under Articles

19(1)(a) and 19(1)(b), it was held that the provisions of the Section,

which commit the power in this regard to a Magistrate belonging to

any of the classes referred to therein cannot be regarded as

unreasonable. While examining the law in force in the United

States, the Court further held that an anticipatory action of the

kind permissible under Section 144 Cr.P.C. is not impermissible

within the ambit of clauses (2) and (3) of Article 19. Public 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 take anticipatory action or

to place anticipatory restrictions upon particular kind of acts in an

emergency for the purpose of maintaining public order.

38. In the case of Madhu Limaye v. Sub Divisional Magistrate and

Ors. [AIR 1971 SC 2481], a Constitution Bench of this Court took

the following view:

“24. The procedure to be followed is next

stated. Under Sub-section (2) if time does not

permit or the order cannot be served, it can be

made ex parte. Under Sub-section (3) the

31

order may be directed to a particular

individual or to the public generally when

frequenting or visiting a particular place.

Under sub-section (4) the Magistrate may

either suo motu or on an application by an

aggrieved person, rescind or alter the order

whether his own or by a Magistrate

subordinate to him or made by his

predecessor in Office. Under Sub-section (5)

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

Magistrate rejects wholly or in part the

application, he must record his reasons in

writing. This sub-section is mandatory. An

order by the Magistrate does not remain in

force after two months from the making

thereof but the State Government may,

however, extend the period by a notification in

the Gazette but, only in cases of danger to

human life, health or safety or where there is a

likelihood of a riot or an affray. But the second

portion of the sub-section was declared

violative of Article 19 in State of Bihar v. K.K.

Misra [1969] S.C.R. 337. It may be pointed out

here that disobedience of an order lawfully

promulgated is made an offence by Section 188

of the Indian Penal Code, if such disobedience

causes obstruction, annoyance or injury to

persons lawfully employed. It is punishable

with simple imprisonment for one month or

fine of Rs. 200 or both.

25. The gist of action under Section 144 is the

urgency of the situation, its efficacy in the

likelihood 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

consequences sufficiently grave. Without it the

exercise of power would have no justification.

It is not an ordinary power flowing from

administration but a power used in a judicial

manner and which can stand further judicial

scrutiny in the need for the exercise of the

power, in its efficacy and in the extent of its

application. There is no general proposition

that an order under Section 144, Criminal

Procedure Code cannot be passed without

taking evidence : see Mst. Jagrupa Kumari v.

Chotay Narain Singh (1936) 37 Cri.L.J. 95

(Pat) which in our opinion is correct in laying

down this proposition. These fundamental

facts emerge from the way the occasions for

the exercise of the power are mentioned.

Disturbances of public tranquility, riots and

affray lead to subversion of public order unless

they are prevented in time. Nuisances

dangerous to human life, health or safety have

no doubt to be abated and prevented. We 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 key-note of the

power is to free society from menace of serious

disturbances of a grave character. The 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. We may

say, however, that annoyance must assume

33

sufficiently grave proportions to bring the

matter within interests of public order.

26. The 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

unjustifiable case and then there would be no

remedy except to ask the Magistrate to cancel

the order which he may not do. Revision

against his determination to the High Court

may prove illusory because before the High

Court can intervene the mischief will be done.

Therefore, it is submitted that an inquiry

should precede the making of the order. In

other words, the burden should not be placed

upon the person affected to clear his position.

Further 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.

27. The 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

Babulal Parate 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 justified.

34

28. …A 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 risks

mentioned in the section. A general order is

thus justified but if the action is too general

the order may be questioned by appropriate

remedies for which there is ample provision in

the law.”

39. In the case of Himat Lal K. Shah v. Commissioner of Police,

Ahmedabad & Anr. [(1973) 1 SCC 227], again a Constitution Bench

of this Court, while dealing with a situation where a person seeking

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 Rule 7 framed under the Bombay Police Act, 1951

as being arbitrary and observed as under :

“……It is not surprising that the Constitution

makers conferred a fundamental right on all

citizens ‘to assemble peaceably and without

arms’. While prior to the coming into force of

the Constitution the right to assemble could

have been abridged or taken away by law, now

that cannot be done except by imposing

reasonable restrictions within Article 19(3). But

it is urged that the right to assemble does not

mean that that right can be exercised at any

35

and every place. This Court held in Railway

Board v. Narinjan Singh (1969) 3 SCR 548;

554 : (1969)1 SCC 502 that there is no

fundamental right for any one to hold

meetings in government premises. It was

observed:

`The fact that the citizens 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’.”

40. Section 144 Cr.P.C. is intended to serve public purpose and

protect public order. This power vested in the executive is to be

invoked 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 tranquility or a riot or an affray. These

features must co-exist at a given point of time in order to enable the

authority concerned to pass appropriate orders. The expression `law

and order’ is a comprehensive expression which may include not

merely `public order’ but also matters such as `public peace’, `public

36

tranquility’ and `orderliness’ in a locality or a local area and

perhaps some other matters of public concern too. `Public order’ is

something distinct from order or orderliness in a local area. Public

order, if disturbed, must lead to public disorder whereas every

breach of peace may not always lead to public disorder. This

concept came to be illustratively explained in the judgment of this

Court in the case of Dr. Ram Manohar Lohia (supra) wherein it was

held that when two drunkards quarrel and fight, there is `disorder’

but not `public disorder’. They 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’. However, 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. The main

distinction is that where it affects the community or public at large,

it will be an issue relatable to `public order’. Section 144 Cr.P.C.

empowers passing of such order in the interest of public order

equitable to public safety and tranquility. The provisions of Section

144 Cr.P.C. empowering the authorities to pass orders to tend to or

37

to prevent the disturbances of public tranquility is not ultra vires

the Constitution.

41. In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia,

[(2004) 4 SCC 684], this Court, while observing that each person,

whatever be his religion, must get the assurance from the State

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. They are by and large the

best to assess and handle the situation depending upon the

peculiar needs and necessities within their special knowledge.

42. The scope of Section 144 Cr.P.C. enumerates the principles

and declares the situations where exercise of rights recognized by

law, by one or few, may conflict with other rights of the public or

tend to endanger the public peace, tranquility and/or harmony.

The orders passed under Section 144 Cr.P.C. are attempted to

serve larger public interest and purpose. As already noticed, under

38

the provisions of the Cr.P.C. complete procedural mechanism is

provided for examining the need and merits of an order passed

under Section 144 Cr.P.C. If one reads the provisions of Section

144 Cr.P.C. along with other constitutional provisions and the

judicial pronouncements of this Court, it can undisputedly be

stated that Section 144 Cr.P.C. is a power to be exercised by the

specified authority to prevent disturbance of public order,

tranquility and harmony by taking immediate steps and when

desirable, to take such preventive measures. Further, when there

exists freedom of rights which are subject to reasonable

restrictions, there are contemporaneous duties cast upon the

citizens too. The duty to maintain law and order lies on the

concerned authority and, thus, there is nothing unreasonable in

making it the initial judge of the emergency. All this is coupled

with a fundamental duty upon the citizens to obey such lawful

orders as well as to extend their full cooperation in maintaining

public order and tranquility.

43. The concept of orderly conduct leads to a balance for assertion

of a right to freedom. In the case of Feiner v. New York (1951) 340

39

U.S. 315, the Supreme Court of the United States of America dealt

with the matter where a person had been convicted for an offence of

disorderly conduct for making derogatory remarks concerning

various persons including the President, political dignitaries and

other local political officials during his speech, despite warning by

the Police officers to stop the said speech. The Court, noticing the

condition of the crowd as well as the refusal by the petitioner to

obey the Police requests, 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 Police action, held as under:

“It is one thing to say that the Police cannot be

used as an instrument for the suppression of

unpopular views, and another to say that,

when as here the speaker passes the bounds

of arguments or persuasion and undertakes

incitement to riot, they are powerless to

prevent a breach of the peace. Nor in this case

can we condemn the considered judgment of

three New York courts approving the means

which the Police, faced with a crisis, used in

the exercise of their power and duty to

preserve peace and order. The findings of the

state courts as to the existing situation and

the imminence of greater disorder couples with

petitioner’s deliberate defiance of the Police

officers convince us that we should not reverse

this conviction in the name of free speech.”

40

44. Another important precept of exercise of power in terms of

Section 144 Cr.P.C. is that the right to hold meetings in public

places is subject to control of the appropriate authority regarding

the time and place of the meeting. Orders, temporary in nature,

can be passed to prohibit the meeting or to prevent an imminent

breach of peace. Such orders constitute reasonable restriction

upon the freedom of speech and expression. This view has been

followed consistently by this Court. To 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 jurisdiction. If the authority anticipates an imminent

threat to public order or public tranquility, it would be free to pass

desirable directions within the parameters of reasonable

restrictions on the freedom of an individual. However, it must be

borne in mind that the provisions of Section 144 Cr.P.C. are

attracted only in emergent situations. The 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

requires a line to be drawn in the field of public order and

tranquility, marking off, may be roughly, the boundary between

those serious and aggravated forms of public disorder which are

calculated to endanger the security of the State 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 kind.

The significance of factors such as security of State 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 Entry III of the Concurrent List of Seventh Schedule to

the Constitution.

45. Moreover, an order under Section 144 Cr.P.C. being an order

which has a direct consequence of placing a restriction on the right

to freedom of speech and expression and right to assemble

peaceably, should be an order in writing and based upon material

facts of the case. This would be the requirement of law for more

than one reason. Firstly, it is an order placing a restriction upon

the fundamental rights of a citizen and, thus, may adversely affect

the interests of the parties, and secondly, under the provisions of

42

the Cr.P.C., such an order is revisable and is subject to judicial

review. Therefore, 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 Dr. Praveen Bhai Thogadia

(supra), this Court took the view that the Court, while dealing with

such orders, does not act like an appellate authority over the

decision of the official concerned. It would interfere only where the

order is patently illegal and without jurisdiction or with ulterior

motive and on extraneous consideration of political victimization by

those in power. Normally, interference should be the exception and

not the rule.

46. A bare reading of Section 144 Cr.P.C. shows that :

(1) It is an executive power vested in the officer so empowered;

(2) There must exist sufficient ground for proceeding;

(3) Immediate prevention or speedy remedy is desirable; and

(4) An order, in writing, should be passed stating the material

facts and be served the same upon the concerned person.

43

47. These are the basic requirements for passing an order under

Section 144 Cr.P.C. Such an order can be passed against an

individual or persons residing in a particular place or area or even

against the public in general. Such an order can remain in force,

not in excess of two months. The Government has the power to

revoke such an order and wherever any person moves the

Government for revoking such an order, the State Government is

empowered to pass an appropriate order, after hearing the person

in accordance with Sub-section (3) of Section 144 Cr.P.C. Out of

the aforestated requirements, the requirements 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 desired/contemplated satisfaction has to

be reasonable, least invasive and bona fide. The restraint has to be

reasonable and further must be minimal. Such restraint should

not be allowed to exceed the constraints of the particular situation

either in nature or in duration. The most onerous duty that is cast

upon the empowered officer by the legislature is that the perception

of threat to public peace and tranquility should be real and not

44

quandary, imaginary or a mere likely possibility. This Court in the

case of Babulal Parate (supra) had clearly stated the following view :

“the language of Section 144 is somewhat

different. The test laid down in the Section is

not merely `likelihood’ or `tendency’. The

section says that the magistrate must be

satisfied that immediate prevention of

particular acts is necessary to counteract

danger to public safety etc. The power

conferred by the section is exercisable not only

where present danger exists but is exercisable

also when there is an apprehension of danger.”

48. The above-stated view of the Constitution Bench is the

unaltered state of law in our country. However, it needs to be

specifically mentioned that the `apprehension of danger’ is again

what can inevitably be gathered only from the circumstances of a

given case.

49. Once an order under Section 144 Cr.P.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 jurisdiction.

Its enforcement has legal consequences. One of such consequences

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.

The empowered officer is also vested with adequate powers to direct

the dispersement of such assembly. In this direction, he may even

take the assistance of concerned officers and armed forces for the

purposes of dispersing such an assembly. Furthermore, 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 Section 129 Cr.P.C. An order

under Section 144 Cr.P.C. would have an application to an `actual’

unlawful assembly as well as a `potential’ unlawful assembly. This

is precisely the scope of application and enforcement of an order

passed under Section 144 Cr.P.C.

50. Having 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

Ve
rsion put forward by learned Am
icus Curiae

51. In 2008, Baba Ramdev was the first person to raise the issue

of black money publically. The black money outside the country

was estimated at total of Rs.400 lakh crore or nearly nine trillion

US Dollar. On 27th February, 2011, an Anti-Corruption Rally was

held at Ramlila Maidan, New Delhi where more than one lakh

persons are said to have participated. The persons present at the

rally included Baba Ramdev, Acharya Balakrishna, Ram

Jethmalani, Anna Hazare and many others. On 20th April, 2011,

the President of Bharat Swabhiman Trust, Delhi Pardesh submitted

an application to the MCD proposing to take Ramlila Maidan on

rent, subject to the general terms and conditions, for holding a yoga

training camp for 4 to 5 thousand people between 1st June, 2011 to

20th June, 2011. He had also submitted an application to the

Deputy Commissioner of Police (Central District) seeking

permission for holding the Yoga Training Camp which permission

was granted by the DCP (Central District) vide his letter dated 25 th

April, 2011. This permission was subject to the terms and

47

conditions stated therein. Permission letter dated 25th April, 2011

reads as under:-

“With reference to your letter No. Nil,

dated 20.04.2011, on the subject cited above,

I am directed to inform you that your request

for permission to organize Yoga Training

Session at Ramlila Ground from 01.06.2011 to

20.06.2011 by Bharat Swabhiman Trust Delhi

Pradesh has been considered and permission

is granted for the same subject 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. Further, you are requested to

comply with all the instructions given by Police

authorities time to time failing which this

permission can be revoked at any time.”

52. Continuing with his agitation for the return of black money to

the country, Baba Ramdev wrote a letter to the Prime Minister on

4th May, 2011 stating his intention to go on a fast to protest against

the Government’s inaction in that regard. The Government made

attempts to negotiate with Baba Ramdev and to tackle the problem

on the terms, as may be commonly arrived at between the

Government and Baba Ramdev. This process started with effect

48

from 19th May, 2011 when the Prime Minister wrote a letter to Baba

Ramdev asking him to renounce his fast. The Finance Minister

also wrote a letter to Baba Ramdev informing him about the

progress in the matter.

53. On 23rd May, 2011, Baba Ramdev submitted an application for

holding a dharna at Jantar Mantar, which permission was also

granted to him vide letter dated 24th May, 2011, which reads as

follows:-

“With reference to your letter dated

23.05.2011, on the subject mentioned above. I

have been directed to inform you that you are

permitted dharna/satyagrah at Jantar Mantar

on 04.06.2011 from 0800 hrs. to 1800 hrs.

with a very limited gathering.”

54. In furtherance to the aforesaid permission, it was clarified vide

letter dated 26th May, 2011 informing the organisers that the

number of persons accompanying Baba Ramdev should not exceed

two hundred.

55. On 27th May, 2011, the DCP (Central District), on receiving the

media reports about Baba Ramdev’s intention to organize a fast

49

unto death at the Yoga Training Camp, made further enquiries from

Acharya Virendra Vikram requiring him to clarify the actual

purpose for such huge gathering. His response to this, vide letter

dated 28th May, 2011, was that there would be no other programme

at all, except residential yoga camp. However, the Special Branch,

Delhi Police also issued a special report indicating that Baba

Ramdev intended to hold indefinite hunger strike along with

30,000-35,000 supporters and that the organizers were further

claiming that the gathering would exceed one lakh.

56. According to Dr. Dhavan, the learned amicus curiae, there is

still another angle to this whole episode. When Baba Ramdev

arrived at Delhi Airport on 1st June, 2011, four senior ministers of

the UPA Government met him at the Airport and tried to persuade

him not to pursue the said fast unto death since the Government

had already taken initiative on the issue of corruption.

57. In the meanwhile, large number of followers of Baba Ramdev

had gathered at Ramlila Maidan by the afternoon of 4th June, 2011.

In the evening of that very day, one of the Ministers who had met

Baba Ramdev at the Airport, Mr. Kapil Sibal, made public a letter

50

from Baba Ramdev’s camp calling off their agitation. This was not

appreciated by Baba Ramdev, as, according to him, the

Government had not stood by its commitments and, therefore, he

hardened his position by declaring not to take back his satyagraha

until a proper Government Ordinance was announced in place of

forming a Committee. The ministers talked to Baba Ramdev in

great detail but of no avail. It is stated that even the Prime Minister

had gone the extra mile to urge Baba Ramdev not to go ahead with

the hunger strike, promising him to find a “pragmatic and

practical” solution to tackle the issue of corruption. Various

attempts were made at different levels of the Government to resolve

this issue amicably. Even a meeting of the ministers with Baba

Ramdev was held at Hotel Claridges. It was reported by the

Press/Media that many others supported the stand of Baba

Ramdev. It was widely reported that Mr. Sibal had said: “we hope

he honours his commitment and honours his fast. This

Government has always reached out but can also rein in.” The

Press reported the statement of the Chief Minister, Delhi as stated

by the officials including Police officers in the words: “action would

51

be taken if Baba Ramdev’s Yoga Shivir turns into an agitation field

and three-tier security arrangements have been made for the Shivir

which is supported to turn into a massive satyagraha”. Even

Anna’s campaign endorsed Baba Ramdev’s step. In this

background, on 4th June, 2011, Baba Ramdev’s hunger strike

began with the motto of `bhrashtachar mitao satyagraha, the key

demands being the same as were stated on 27th February, 2011.

58. As already noticed, Baba Ramdev had been granted

permission to hold satyagraha at Jantar Mantar, of course, with a

very limited number of persons. Despite the assurance given by

Acharya Virendra Vikram, as noted above, the event was converted

into an Anshan and the crowd at the Ramlila Maidan swelled to

more than fifty thousand. No yoga training was held for the entire

day. At about 1.00 p.m., Baba Ramdev decided to march to Jantar

Mantar for holding a dharna along with the entire gathering.

Keeping in view the fact that Jantar Mantar could not accommodate

such a large crowd, the permission dated 24/26th May, 2011

granted for holding the dharna was withdrawn by the authorities.

Certain negotiations took place between Baba Ramdev and some of

52

the ministers on telephone, but, Baba Ramdev revived his earlier

condition of time-bound action, an ordinance to bring black money

back and the items missing on his initial list of demands. At about

11.15 p.m., it is stated that Centre’s emissary reached Baba

Ramdev at Ramlila Maidan with the letter assuring a law to declare

black money hoarded abroad as a national asset. The messenger

kept his mobile on so the Government negotiators could listen to

Baba Ramdev and his aides. The conversation with Baba Ramdev

convinced the Government that Baba Ramdev will not wind up his

protest. At about 11.30 p.m., a team of Police, led by the Joint

Commissioner of Police, met Baba Ramdev and informed him that

the permission to hold the camp had been withdrawn and that he

would be detained. At about 12.30 a.m., a large number of CRPF,

Delhi Police force and Rapid Action Force personnel, totaling

approximately to 5000 (as stated in the notes of the Amicus.

However, from the record it appears to be 1200), reached the

Ramlila Maidan. At this time, the protestors were peacefully

sleeping. Thereafter, at about 1.10 a.m., the Police reached the

dais/platform to take Baba Ramdev out, which action was resisted

53

by his supporters. At 1.25 a.m., Baba Ramdev jumped into the

crowd from the stage and disappeared amongst his supporters. He,

thereafter, climbed on the shoulders of one of his supporters,

exhorting women to form a barricade around him. A scuffle

between the security forces and the supporters of Baba Ramdev

took place and eight rounds of teargas shells were fired. By 2.10

a.m., almost all the supporters had been driven out of the Ramlila

Maidan. The Police sent them towards the New Delhi Railway

Station. Baba Ramdev, who had disappeared from the dais earlier,

was apprehended by the Police near Ranjit Singh Flyover at about

3.40 a.m. At that time, he was dressed in salwar-kameez with a

dupatta over his beard. He was taken to the Airport guest-house.

It was planned by the Government to fly Baba Ramdev in a chopper

from Safdarjung Airport. However, at about 9.50 a.m. the

Government shelved this plan and put him in an Indian Air Force

helicopter and flew him out of the Indira Gandhi International

Airport.

54

59. Learned amicus curiae has made two-fold submissions. One

on `facts and pleadings’ and the other on `law’. I may now refer to

some of the submissions made on facts and pleadings.

60. The Ramlila Maidan provided an accurate barometer of the

country’s political mood in 1960s and 1970s which can be gauged

from an article dated 18th August, 2011 in the Times of India, which

stated as under:

“It was in Ramlila Ground that Jai Prakash

Narain along with prominent Opposition

leaders, addressed a mammoth rally on June

25, 1975, where he urged the armed forces to

revolt against Indira Gandhi’s government.

Quoting Ramdhari Singh Dinkar, JP

thundered, “Singhasan khali karo, ki janta

aati hai (Vacate the throne, for the people are

here to claim it)”. That very midnight,

Emergency was declared in the country.

Less than two years later, the ground was the

venue for another Opposition rally that many

political commentators describe as epoch-

changing. In February 1977, more than a

month before Emergency was lifted,

Opposition leaders led by Jagjivan Ram – his

first public appearance after quitting the

Congress – Morarji Desai, Atal Bihari

Vajpayee, Charan Singh and Chandrashekar,

held a joint rally.

That the Ramlila Ground provided an accurate

barometer of the country’s political mood in

the 1960s and 70s can be gauged from the

55

fact that in 1972, just around three years

before the JP rally, Indira Gandhi addressed a

huge rally here following India’s victory over

Pakistan in the Bangladesh war. In 1965,

again at a time when the country was at war

with Pakistan, it was from here that then

Prime Minister Lal Bahadur Shastri gave the

slogan `Jai Jawan Jai Kisan’.

According to Delhi historian, Ronald Vivian

Smith, the Maidan was originally a pond which

was filled up in the early 1930s so that the

annual Ramlila could be shifted here from the

flood plains behind Red Fort. It quickly

became a popular site for political meetings,

with Gandhiji, Nehru, Sardar Patel and other

top nationalist leaders addressing rallies here.

According to one account, as Jinnah was

holding a Muslim League ra

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