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Transcript of 20120223 Ramlila Maidan
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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 U D G M E N T
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 191!a! and 191!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
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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
Congress shall ma2e no law respecting an
establishment of religion, or prohibiting thefree 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
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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 while 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
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claims must be translated into the same level and carefully
labelled. hus, a social interest may not be balanced against
individual interest, but only against another social interest. he
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. 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 $ustification must
be isolated and weighted in each case. Although the +irst
Amendment to the American Constitution provides that Congress
shall ma2e no law abridging the freedom of speech, press or
assembly, it has long been established that those freedoms
themselves are dependent upon the power of the constitutional
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4overnment to survive. If it is to survive, it must have power to
protect itself against unlawful conduct and under some
circumstances against incitements to commit unlawful acts.
+reedom of speech, thus, does not comprehend the right to spea2
on any sub$ect at any time. In the case of Schenck v. United States
;# @ ed 11(#<, the Court held 0
he character of every act depends upon the
circumstances in which it is done. he moststringent 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$unction against
uttering words that have all the effect of
force.the ?uestion in every case is whether
the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that theywill bring about the substantive evils that
Congress has a right to prevent.5
Constitution of India , "nd >dn.!, olume 1 by r. @.:. %inghvi<
;. In contradistinction to the above approach of the % %upreme
Court, the Indian Constitution spells out the right to freedom of
speech and expression under Article 191!a!. It also provides the
right to assemble peacefully and without arms to every citi-en of
the country under Article 191!b!. 7owever, these rights are not
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free from any restrictions and are not absolute in their terms and
application. Articles 19"! and 19#!, respectively, control the
freedoms available to a citi-en. Article 19"! empowers the %tate to
impose reasonable restrictions on exercise of the right to freedom of
speech and expression in the interest of the factors stated in the
said clause. %imilarly, Article 19#! enables the %tate to ma2e any
law imposing reasonable restrictions on the exercise of the right
conferred, again in the interest of the factors stated therein.
(. In face of this constitutional mandate, the American doctrine
adumbrated in Schenck’s case supra! cannot be imported and
applied. nder our Constitution, this right is not an absolute right
but is sub$ect to the above6noticed restrictions. hus, the position
under our Constitution is different.
D. In ) Constitutional Law of India * by 7.:. %eervai +ourth >dn.!,
ol.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
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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 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
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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. +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 basic human
right5, a 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
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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$ect to restrictions contemplated under
Articles 19"! and 19#!, respectively. Article 191! was sub$ected to
$ust one amendment, by the Constitution &&th Amendment! Act,
19(9, vide which Article 191!f! was repealed. %ince the
'arliament felt the need of amending Article 19"! of the
Constitution, it was substituted by the Constitution +irst
Amendment! Act, 19=1 with retrospective effect. Article 19"! was
sub$ected to another amendment and vide the Constitution
%ixteenth Amendment! Act, 19;#, the expression sovereignty and
integrity of India5 was added. he pre6amendment Article had
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empowered the %tate to ma2e laws imposing reasonable restrictions
in exercise of the rights conferred under Article 191!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
191!a! is not absolute and unchec2ed. here cannot be any
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 en(al )s& Su!odh *opal
ose AI/ 19=& %C 9"<F.
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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. It grants to every person the right to life
and personal liberty. 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
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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 AI/ 19(D %C =9(<, where this Court too2 the view as under 0
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 procedurecontemplated 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
'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
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has to be in accordance with the law so established. on6
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. It also fettered the right of the %tate in
ma2ing laws. 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 irective 'rinciples of %tate 'olicy contained in 'art I of
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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 $ustice 6
social, economic and political 6 shall inform all the institutions of
the national life. Article #( ma2es the irective 'rinciples of %tate
'olicy fundamental in governance of the country and provides that
it shall be the duty of the %tate to apply these principles in ma2ing
laws.
1D. Hith the development of law, even certain matters covered
under this 'art relating to irective 'rinciples have been uplifted to
the status of fundamental rights, for instance, the right to
education. hough this right forms part of the irective 'rinciples
of %tate 'olicy, compulsory and primary education has been treated
as a part of Article "1 of the Constitution of India by the courts,
which conse?uently led to the enactment of the /ight of Children to
+ree and Compulsory >ducation Act, "G1G.
19. Article =1A deals with the fundamental duties of the citi-ens.
It, inter alia , postulates that it shall be the duty of every citi-en of
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India to abide by the Constitution, to promote harmony and the
spirit of common brotherhood, to safeguard public property and to
ab$ure violence.
"G. hus, a common thread runs through 'arts III, I and IA 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. Hhile 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 fundamental5 as used in the expression fundamental in the
governance of the %tate5 to describe the directive principles which
have not legally been made enforceable. hus, the word
fundamental5 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 fundamental5 in Article #( also means
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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
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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
multi6dimensional responsibility. It has to maintain and ensure
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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 19D9! " %CC =(&<, this Court
noticed as under 0
45. 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 offreedom 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. Itshould 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
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contemplated li2e the e?uivalent of a spar2 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.
"&. ow, 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% E&&' & %' C-&%%*%-&
"=. o 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
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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 $udgments of this Court have been consistent
in ta2ing the view that it is difficult to define or explain the word
reasonable5 with any precision. It will always be dependent on
the facts of a given case with reference to the law which has been
enacted to create a restriction on the right. It is neither possible
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nor advisable to state any abstract standard or general pattern of
reasonableness as applicable uniformly to all cases. his Court in
the case of State of #adras v& )&*& Row AI/ 19=" %C 19;< held 06
It is important in this context to bear in mind
that the test of reasonableness, whereever
prescribed, should be applied to each individual
statute impugned, and no abstract standard or
general pattern of reasonableness, can be laid
down as applicable to all cases.5
"(. +or ad$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. %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
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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 "GG=! D %CC =#&< held as under06
(=. hree propositions are well settled0 i!
LrestrictionL includes cases of LprohibitionL3 ii! the
standard for $udging reasonability of restriction
or restriction amounting to prohibition remainsthe 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 right..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
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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. he term )social order* has a very
wide ambit. It includes )law and order*, )public order* as well as
)the security of the %tate*. he security of the %tate is the core
sub$ect and public order as well as law and order follow the same.
In the case of Romesh Thappar v& State of #adras 19=G %C/ =9&<,
this Court too2 the view that local breaches of public order were no
grounds for restricting the freedom of speech guaranteed by the
Constitution. his led to the Constitutional +irst Amendment!
Act, 19=1 and conse?uently, this Court in the case of ;r& Ram
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#anohar Lohia v& State of ihar AI/ 19;; %C (&G< stated that an
activity which affects )law and order* may not necessarily affect
)public order* and an activity which might be pre$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 191! 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
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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 I of
the Constitution relates to the irective '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
consideration any of the above6mentioned 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 citi-en under Article 191!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 199;! = %CC "1;<, this
Court held0
#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 andexpression 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
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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 andexpression 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. obody has
a right to denigrate othersL right to person or
reputation. herefore, freedom of speech and
expression is tolerated so long as it is notmalicious 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. 'art III of the
Constitution of India although confers rights and duties,
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&
"GG&! " %CC =1G<F.
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#&. 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
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 ?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 istrict :agistrate, %ub6
ivisional :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
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prevention andJor speedy remedy is desirable. By virtue of %ection
1&&A Cr.'.C., which itself was introduced by Act "= of "GG=, the
istrict :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
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1&& Cr.'.C. was an encroachment on their rights under Articles
191!a! and 191!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& AI/ 19(1 %C "&D1<, a Constitution Bench of this Court too2
the following view0
"&. 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
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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 anaggrieved 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 inwriting. 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 declaredviolative of Article 19 in %tate of Bihar v. M.M.
:isra 19;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
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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 fromadministration but a power used in a $udicial
manner and which can stand further $udicial
scrutiny in the need for the exercise of the
power, in its efficacy and in the extent of its
application. here is no general proposition
that an order under %ection 1&&, Criminal
'rocedure Code cannot be passed without
ta2ing evidence 0 see :st. 8agrupa Mumari v.
Chotay arain %ingh 19#;! #( [email protected]. 9='at! which in our opinion is correct in laying
down this proposition. hese fundamental
facts emerge from the way the occasions for
the exercise of the power are mentioned.
isturbances of public tran?uility, riots and
affray lead to subversion of public order unless
they are prevented in time. uisances
dangerous to human life, health or safety have
no doubt to be abated and prevented. He are,however, not concerned with this part of the
section and the validity of this part need not
be decided here. In so far as the other parts of
the section are concerned the 2ey6note of the
power is to free society from menace of serious
disturbances of a grave character. he section
is directed against those who attempt to
prevent the exercise of legal rights by others or
imperil the public safety and health. If that be
so the matter must fall within the restrictions
which the Constitution itself visualises as
permissible in the interest of public order, or
in the interest of the general public. He may
say, however, that annoyance must assume
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sufficiently grave proportions to bring the
matter within interests of public order.
";. he criticism, however, is that the section
suffers from over broadness and the words of
the section are wide enough to give an
absolute power which may be exercised in an
un$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 saywhether 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.
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"D. 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 ris2s
mentioned in the section. A general order isthus $ustified but if the action is too general
the order may be ?uestioned by appropriate
remedies for which there is ample provision in
the law.5
#9. In the case of ,imat Lal & Shah v& Commissioner of "olice$
8hmeda!ad 7 8nr& 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
It 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 ofthe 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
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and every place. his Court held in /ailway
Board v. arin$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 wasobserved0
)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
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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
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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 ,
"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
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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
It is one thing to say that the 'olice cannot be
used as an instrument for the suppression ofunpopular 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. or in this case
can we condemn the considered $udgment of
three ew Nor2 courts approving the means
which the 'olice, faced with a crisis, used in
the exercise of their power and duty topreserve peace and order. he findings of the
state courts as to the existing situation and
the imminence of greater disorder couples with
petitioner*s deliberate defiance of the 'olice
officers convince us that we should not reverse
this conviction in the name of free speech.5
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&&. Another important precept of exercise of power in terms of
%ection 1&& Cr.'.C. is that the right to hold meetings in public
places is sub$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 $urisdiction. If the authority anticipates an imminent
threat to public order or public tran?uility, it would be free to pass
desirable directions within the parameters of reasonable
restrictions on the freedom of an individual. 7owever, it must be
borne in mind that the provisions of %ection 1&& Cr.'.C. are
attracted only in emergent situations. he emergent power is to be
exercised for the purposes of maintaining public order. It was
stated by this Court in Romesh Thapar supra! that the Constitution
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re?uires a line to be drawn in the field of public order and
tran?uility, mar2ing off, may be roughly, the boundary between
those serious and aggravated forms of public disorder which are
calculated to endanger the security of the %tate and the relatively
minor breaches of peace of a purely local significance, treating for
this purpose differences in degree as if they were different in 2ind.
he significance of factors such as security of %tate and
maintenance of public order is demonstrated by the mere fact that
the framers of the Constitution provided these as distinct topics of
legislation in >ntry III of the Concurrent @ist of %eventh %chedule to
the Constitution.
&=. :oreover, an order under %ection 1&& Cr.'.C. being an order
which has a direct conse?uence of placing a restriction on the right
to freedom of speech and expression and right to assemble
peaceably, should be an order in writing and based upon material
facts of the case. his would be the re?uirement of law for more
than one reason. +irstly, it is an order placing a restriction upon
the fundamental rights of a citi-en and, thus, may adversely affect
the interests of the parties, and secondly, under the provisions of
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the Cr.'.C., such an order is revisable and is sub$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. ormally, interference should be the exception and
not the rule.
&;. A bare reading of %ection 1&& Cr.'.C. shows that 0
1! 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.
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&(. hese are the basic re?uirements for passing an order under
%ection 1&& Cr.'.C. %uch an order can be passed against an
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
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?uandary, imaginary or a mere li2ely possibility. his Court in the
case of a!ulal "arate supra! had clearly stated the following view 0
the 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 exercisablealso when there is an apprehension of danger.5
&D. he above6stated view of the Constitution Bench is the
unaltered state of law in our country. 7owever, 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.
&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 $urisdiction.
Its enforcement has legal conse?uences. Kne of such conse?uences
would be the dispersement of an unlawful assembly and, if
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necessitated, by using permissible force. An assembly which might
have lawfully assembled would be termed as an )unlawful assembly*
upon the passing and implementation of such a preventive order.
he empowered officer is also vested with ade?uate powers to direct
the dispersement of such assembly. In this direction, he may even
ta2e the assistance of concerned officers and armed forces for the
purposes of dispersing such an assembly. +urthermore, the said
officer has even been vested with the powers of arresting and
confining the persons and, if necessary, punishing them in
accordance with law in terms of %ection 1"9 Cr.'.C. An order
under %ection 1&& Cr.'.C. would have an application to an )actual*
unlawful assembly as well as a )potential* unlawful assembly. his
is precisely the scope of application and enforcement of an order
passed under %ection 1&& Cr.'.C.
=G. 7aving noticed the legal precepts applicable to the present
case, it will be appropriate to notice, at this stage, the factual
matrix advanced by each of the parties to the case before this
Court.
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3'-& ,*% -#$ 7'$&' Amicus Curiae
=1. In "GGD, Baba /amdev was the first person to raise the issue
of blac2 money publically. he blac2 money outside the country
was estimated at total of /s.&GG la2h crore or nearly nine trillion
% ollar. Kn "(th +ebruary, "G11, an Anti6Corruption /ally was
held at /amlila :aidan, ew elhi where more than one la2h
persons are said to have participated. he persons present at the
rally included Baba /amdev, Acharya Bala2rishna, /am
8ethmalani, Anna 7a-are and many others. Kn "Gth April, "G11,
the 'resident of Bharat %wabhiman rust, elhi 'ardesh submitted
an application to the :C proposing to ta2e /amlila :aidan on
rent, sub$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. 7e had also submitted an application to the
eputy Commissioner of 'olice Central istrict! see2ing
permission for holding the Noga raining Camp which permission
was granted by the C' Central istrict! vide his letter dated "= th
April, "G11. his permission was sub$ect to the terms and
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conditions stated therein. 'ermission letter dated "=th April, "G11
reads as under06
Hith reference to your letter o. il,
dated "G.G&."G11, on the sub$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 elhi
'radesh has been considered and permission
is granted for the same sub$ect to the
conditions that there should not be anyobstruction to the normal flow of traffic and
permission from land owing agency is
obtained. Besides this, you will deploy
sufficient numbers of volunteers at the venue
of the function. +urther, you are re?uested to
comply with all the instructions given by 'olice
authorities time to time failing which this
permission can be revo2ed at any time.5
=". Continuing with his agitation for the return of blac2 money to
the country, Baba /amdev wrote a letter to the 'rime :inister on
&th :ay, "G11 stating his intention to go on a fast to protest against
the 4overnment*s inaction in that regard. he 4overnment made
attempts to negotiate with Baba /amdev and to tac2le the problem
on the terms, as may be commonly arrived at between the
4overnment and Baba /amdev. his process started with effect
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from 19th :ay, "G11 when the 'rime :inister wrote a letter to Baba
/amdev as2ing him to renounce his fast. he +inance :inister
also wrote a letter to Baba /amdev informing him about the
progress in the matter.
=#. Kn "#rd :ay, "G11, Baba /amdev submitted an application for
holding a dharna at 8antar :antar, which permission was also
granted to him vide letter dated "&
th
:ay, "G11, which reads as
follows06
Hith reference to your letter dated
"#.G=."G11, on the sub$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 C' Central istrict!, on receiving the
media reports about Baba /amdev*s intention to organi-e a fast
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unto death at the Noga raining Camp, made further en?uiries from
Acharya irendra i2ram 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,
elhi '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 r. havan, the learned amicus curiae$ there is
still another angle to this whole episode. Hhen Baba /amdev
arrived at elhi 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
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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 pragmatic and
practical5 solution to tac2le the issue of corruption. arious
attempts were made at different levels of the 4overnment to resolve
this issue amicably. >ven a meeting of the ministers with Baba
/amdev was held at 7otel Claridges. It was reported by the
'ressJ:edia that many others supported the stand of Baba
/amdev. It was widely reported that :r. %ibal had said0 we hope
he honours his commitment and honours his fast. his
4overnment has always reached out but can also rein in.5 he
'ress reported the statement of the Chief :inister, elhi as stated
by the officials including 'olice officers in the words0 action would
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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(raha 5. >ven
Anna*s campaign endorsed Baba /amdev*s step. In 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. espite the assurance given by
Acharya irendra i2ram, as noted above, the event was converted
into an 8nshan and the crowd at the /amlila :aidan swelled to
more than fifty thousand. o 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
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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/'+,
elhi '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. At this time, the protestors were peacefully
sleeping. hereafter, at about 1.1G a.m., the 'olice reached the
daisJplatform to ta2e Baba /amdev out, which action was resisted
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by his supporters. At 1."= a.m., Baba /amdev $umped into the
crowd from the stage and disappeared amongst his supporters. 7e,
thereafter, climbed on the shoulders of one of his supporters,
exhorting women to form a barricade around him. A scuffle
between the security forces and the supporters of Baba /amdev
too2 place and eight rounds of teargas shells were fired. By ".1G
a.m., almost all the supporters had been driven out of the /amlila
:aidan. he 'olice sent them towards the ew elhi /ailway
%tation. Baba /amdev, who had disappeared from the dais earlier,
was apprehended by the 'olice near /an$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.
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=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
It was in /amlila 4round that 8ai 'ra2ash
arain 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 in2ar, 8'
thundered, %inghasan 2hali 2aro, 2i $anta
aati hai acate the throne, for the people are
here to claim it!5. hat very midnight,>mergency was declared in the country.
@ess than two years later, the ground was the
venue for another Kpposition rally that many
political commentators describe as epoch6
changing. In +ebruary 19((, more than a
month before >mergency was lifted,
Kpposition leaders led by 8ag$ivan /am P his
first public appearance after ?uitting the
Congress P :orar$i esai, Atal Bihari
a$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
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fact that in 19(", $ust around three years
before the 8' rally, Indira 4andhi addressed a
huge rally here following India*s victory over
'a2istan in the Bangladesh war. In 19;=,
again at a time when the country was at warwith 'a2istan, it was from here that then
'rime :inister @al Bahadur %hastri gave the
slogan )8ai 8awan 8ai Misan*.
According to elhi historian, /onald ivian
%mith, the :aidan was originally a pond which
was filled up in the early 19#Gs so that the
annual /amlila could be shifted here from the
flood plains behind /ed +ort. It ?uic2ly
became a popular site for political meetings,with 4andhi$i, ehru, %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 becamethe preferred site for shows of strength. But
after the arasimha /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 any
gathering of over =G,GGG should not be permitted at /amlila :aidan
but should be offered the Burari grounds as an alternative. If,
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however, the organi-ers select a par2 or an open area elsewhere in
elhi, 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
It may be concluded that
i! the ground became a ma$or protestarea after the government abolished
rallies at the Boat Club.
ii! he police*s capacity for /amlila is
=G,GGG but it limited Baba /amdev*s
meet to =GGG.
iii! he ground appears to be
accommodative but with only one
ma$or exit and entrance.
iv! here are aspects of the material thatshow 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.
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;#. 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
he capacity for /amlila :aidan is =G,GGGbut 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
i! C-# P'$8'*7 $& 7'',&
;.1 he crowd entered the /amlila 4round
from one entrance without any hassle and co6
operatively see C mar2ed CGG#1;#5 of "#
minutes Q 1( minutes< 'olice was screening
each and every individual entering the
premises. Kn G&th 8une "G11 many new
sic ! channel live coverage shows about two2ilometer 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 ol.1 and Annexure /6
9 'g. #(6#D, ol."! 'eople re?uesting the
'olice with folded handed Annexure /69 'g.
#9 ol."! also recorded in CC camera*s and
in C GG&G"; mar2ed is Item ./ p(& 3/
)ol&.A2 () D %' P-78' '&%' $*,%7 %- '8&-' $& '+-v' 9$$ R$+'v.
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;.# he C mar2ed C GG#1;#5 of "#
minutes on 'olice entry and Baba /amdev*s
reaction Q 1G minutes Baba re?uests that he
should be arrested in the morning with a
warrant3() D 9$$ R$+'v +$:' $& &8%-,''8 ;
;.& In general Baba /amdev*s speech carry
aggressive issues but on G&.G;."G11,
• no provocation was made by Baba /amdev
in any manner
• says he is read sic P ready! to get arrested
but his followers should not be harmed3
• as2s his women supporters to form asecurity ring around him.
• also re?uest participants not to fight with
'olice and be calm.
• also re?uests 'olice not to manhandle his
supports. Cs handed by rust in Court,
the C mar2ed CGG#1;#5 of "# minutes
Q 1G minute.<
(v) W$ %' 7$% 8$' (sic < 8$')
-''; W'' 7$% *';;.= he 'olice itself admits use of water
cannon and tear gas but denies lathicharge
o lathi charge even ordered on public, no
organi-ed lathi charge by 'oliceman Q ol.#
'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 CGG&G"; mar2ed item 19
pg. #9 ol. 1G Q &( minute shows lathicharge(v) 98:
;.; he C mar2ed /&6I:>HI%>6)B* 6
Q1hr.11 min 'olice entering from the bac2
area and throwing bric2s on the crowd inside
the pandal3(v) W$%' 8$&&-& $& T'$$
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;.( 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&=*'
;.D Kn in$uries the figures are not clear as
per Commissioner of 'olice, elhi Affidavit
only %#- ,'-& re?uired hospitali-ation for
surgery. Annexure % colly pg. &961&" ol.III!
In$ured umbers /eleased
on first
day
/eleased
on
second
day
reatment
'ublic
persons
&D &1 G= iagnosisJ
+irst aid
'olicemen #D
• In$ury6sheets pre6dominantly indicate in$uries
received during the minor stampede in one part of
the enclosure
;.9 ewspaper the KI gives the figure of ;"
person in$ured and "9 of the in$ured were
discharged during the day in @8' 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 armedin 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.
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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.
II. %peech.
(.1 +rom the ideos of Ree ews and AI, 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
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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 o. #.
he affidavit of the Chief %ecretary, respondent no.", cannot be
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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, elhi '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 C' to
revo2e the permission and promulgate the prohibitory orders under
%ection 1&& Cr.'.C.
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;(. 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
A 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 elhi.5
;D. /eference is also made to the statement of :inister of 7/
%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 elhi '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
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was in bad faith. /eliance is placed upon the case of S& "ratap
Sin(h v& The State of "un6a! 19;&! & %C/ (##<.
(G. he affidavits filed on behalf of the 'olice and the :inistry of
7ome Affairs are at some variance. he variance is not of the
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 elhi
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.
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(1. +rom the record, it can reasonably be inferred that the
:inistry of 7ome Affairs and elhi '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'-& - R',-&'&% N-.4 0
(". ow, I may refer to the case put forward by respondent o.&,
the 'resident of Bharat %wabhiman rust, elhi 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. arious
camps and meetings have been held by the rust in various parts
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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 ovember,
"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. one 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 19th :ay, "G11 assuring him that the
4overnment was determined to fight with the problem of corruption
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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 "Gth
: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 elhi :C!. he rust had
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applied to the :C re?uesting it for giving on rentJlease the
/amlila :aidan for the period commencing from 1st 8une, "G11 to
"Gth
8une, "G11. Before grant of its permission, the :C had
written to the rust that they should obtain KC from the
Commissioner of 'olice, elhi which was duly applied for and, as
already noticed, obtained by the rust. Kf course, it was a
conditional KC and the conditions stated therein had been
adhered to, whereafter, the :C had given the /amlila maidan on
lease to the rust. he permission was revo2ed by the 'olice and
not by the :C and the :C 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 ew elhi 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
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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
and other channels. uring 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
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=,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 elhi
'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. uring 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
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/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
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 uponreceiving 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
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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
the arrest warrant, the 'olice refused to do so. Baba /amdev
re?uested all the sadhakas to maintain peace and ahinsa .
(D. his respondent also alleges that the 'olice disabled the
public address system. Conse?uently, Baba /amdev got off the
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
launched brutal attac2 on the crowd, including women. se of
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
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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 o.& 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 elhi after cancellation of permission for the fastJprotest was
determined in advance and was to be enforced in the event he
persisted5 in his efforts to protest. he re?uirements for an order
of externment under %ection &( of elhi 'olice Act, 19(D for short,
)the ' 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.
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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 o.& 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 o.& 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
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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 elhi 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 )o Kb$ection Certificate* KC! for
holding the meeting and the withdrawal of the KC 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.
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D#. one 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& State of
8ndhra "radesh and Krs. "GG9! = %CC "1"<.
D&. >ven if for the sa2e of arguments, it is assumed that there was
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
called for nor could have been passed in the facts and
circumstances of the present case. It is contended that 'olice itself
was an unlawful assembly. It had attac2ed the sleeping persons,
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after midnight, by trespassing into the property, which had been
leased to the respondent6rust. 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. he
restriction imposed, being unreasonable, 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 I' >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
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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.
either 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
/amdev. 7e had voluntarily accepted the re?uest of the 'olice not
to visit 8antar :antar along with his followers on & th 8une, "G11
itself. >verything in the /amlila :aidan was going on peacefully
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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-78' 3'-&
D(. he Commissioner of 'olice, elhi has filed various affidavits
to explain the stand of the 'olice in the present case. I may notice
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
:C to respondent o. &.
DD. According to the 'olice also, the rust, respondent o. &, 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 C', Central istrict vide letter
dated "(th :ay, "G11, the Acharya by their letter dated "D th :ay,
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"G11 had re6affirmed their stand that a yoga camp was to be held.
It is the case of the respondent o.# that on #Gth :ay, "G11,
%pecial Branch, elhi '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 o. &
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
respondent o. &. Citing certain inputs, the C' issued a warning
to respondent o.& 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 C' 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
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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 elhi 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
communally hyper6sensitive localities. @ate at night, crowd had
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.
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9". In view of the above, the C' 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
public in vacating the /amlila :aidan. Buses were deployed at
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. o hearing was claimed by Baba /amdev or any of
his associates. his sudden reaction of Baba /amdev created
commotion and resulted in melee. Baba /amdev exhorted his
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 o. & 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
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in a part of the enclosure. Baba /amdev vanished from the stage
with his female followers. +ew members of public $umped from the
stage and got in$ured. 'olice exercised maximum restraint and
used minimum force. 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
the 'olice, the situation at /amlila :aidan became volatile. he
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. :ost of these persons were
discharged on the same date. 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
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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 elhi 'olice is re?uired by anyone planning to
hold public functions at public places. elhi '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
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clarified the situation on #Gth :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.
elhi '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
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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. o 'olice Kfficer was
found to be hitting any person. /espondent no.& had been as2ed
to install sufficient CC cameras and :Js. %ai Hireless removed
the cameras and /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/ o. &9 of "G11 was registered. he said concern, upon being
called for the same by a notice under %ection 91 Cr.'.C., produced
1G /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
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cameras and two /s were not available as these e?uipments
were reportedly stolen, as noted above. hus, the recordings from
only &1 camerasJ/s were available.
9D. he primary aim of :C is to earn revenue from commercial
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.
o 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/ o. &= of "G11 registered at the same
'olice station.
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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 o. ";A dated ; th 8une, "G11.
1G1. %till, in another affidavit dated "Gth %eptember, "G11 filed on
behalf of respondent o. #, 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 o. &,
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
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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
gross osteoporosis5, that too, to the extent that she was being
managed by endrocrinologist5 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 o. # is that
there being no challenge to the %tanding Krder #G9, provisions of
the ' Act and the 'un$ab 'olice /ules and even the order passed
under %ection 1&& Cr.'.C., the action of elhi 'olice has to be
treated as a reasonable and proper exercise of power. he
organi-ers of respondent o.& 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.
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1G&. he right to freedom in a democracy has to be exercised in
terms of Article 191!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
of power by the +orce as a whole. he 'olice had waited for a
considerable time inasmuch as the order withdrawing the
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permission was passed at about 9.#G p.m. and was brought to the
notice of the representatives of /espondent o.& 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. he 'olice had acted in good faith and !ona
fide& 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 o.#, 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
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a! Hhether it was necessary for :C to direct and for organi-ers
to ta2e permission from elhi 'oliceT
b) Cancellation of permission for holding of ;harna Jagitation at
8antar :antar.
c! alidity 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
o.&, to see2 the permission of the 'olice for holding such a large
public demonstration. herefore, I would be touching the various
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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&& -& I&8'&% - M&% - 4% /5% J*&'! 2011 $& %'R-7' - P-78' $& M'+'/-77-#' - R',-&'&% N-.4
1G9. All ational and elhi >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 elhi. 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. here was commotion at the
/amlila :aidan. 'ersons who had suddenly wo2en up from sleep
could not 2now where and how to go. It appears that Baba /amdev
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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
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) 'h% Centre went from lickin( to kickin(’$
Ramleela *round never saw so much drama’$
She ma% !e paral%9ed for life’&
'omen not spared$ we were !linded !% smoke’
Cops claim terror alert to 6ustif% midni(ht raid’
Swoop =ot Sudden$ cops trailed Ramdev for 3 da%s’
8fter eviction the% chant and sDuat on road’
"rotestors 8rmed with !ricks$ !ase!all !ats Cops’
Indian >xpress dated ;th 8une, "G11 0
a!a *ives U"8 a Sleepless Summer’
'eek 8(o$ ,ome$ ;elhi "olice told *ovt : look at plan the
show’
*ettin( Ramdev +ut’
@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
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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 191!a! and 191!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, elhi Administration and the
'olice Commissioner of elhi 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
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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 "9th
August, "G11. hey
filed their own affidavit. In order to ensure proper independent
assistance to the Court, the Court also appointed an amicus curiae
and r. havan 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.
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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 :C. ndoubtedly, respondent o.&
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 C' Central
istrict! elhi 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 o.& had promptly
replied stating that there will be no other event except the
residential yoga camp. 7owever, 2eeping in view the information
received, the eputy Commissioner of 'olice, Central istrict, vide
his letter dated 1st 8une, "G11 had issued further directions for
being implemented by respondent o.& and reiterated his earlier
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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 eputy Commissioner of 'olice, Central istrict had also
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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 ictionary P wentieth >dn.!3
A serious, unexpected and potential dangerous situation re?uiring
immediate action %ee Concise Kxford >nglish ictionary 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*.
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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 1st 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
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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 cameras, videos and the photographs, collectively annexed as
Annexure69 to the affidavit of respondent o.&, establish this fact
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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 o.& 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 o.& much thereafter. he footages of the CC
Camera os. ", #, &, (, 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 o.& 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
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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 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
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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
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
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fired the teargas shells on and around the stage. In all, eight
teargas shells were fired. According to the 'olice, they did not
resort to any lathi charge and, in fact, they had first used water
cannons. According to respondent o.&, 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
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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 Camera o. = 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
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
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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 o.& 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 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 istrict of 'olice, elhi
dated "nd 8une, "G11. Copies of the 'olice log boo2 have been
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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
istrict et
ate %tart ime uratio
n
Call etail
G=.G;.11 G#0""0=# GG0GG0## /.@. 4round Mamla
mar2et police men are
beating the peoples
'h.9(11&(D;G HJCt.
%heetal o.D1(&J'C/
/A%C/I'IK K+ : et
ated G&.G;."G11 from "GG hrs. to GGG hrs.
I+K/: C6"D, C6#1, C6#=, C6#" U C6& A C6= 7A
7>N HK@ :>> :> A+>/ #G :I A 7> &
%7Ks HI@@ B/I4 ABK "G '>/%K>@ >AC7 +/K: 7>I/ '%.
ranscript of : et
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>xtract of etra : et of Central istrict. ated
G=JG;J11 from G1GG 7rs. to G=GG 7rs. a2en from the
etra /ecording!
"1D
C =G C " he force which isstanding outside at
ur2man gate and
4urunana2 Chow2
having gas gun will
come inside through
I' gate instantly
""=
1"
C =G
C =G
C=G
1"
C"
nderstood
he operator of gas
gun which is send has
not reported yet only
driver is sitting
operator is to be send
?uic2ly.
""=
C O C =G he officer who has
send the gas gun willsend the operator, is
driver to operate it.
"";
1" C =G Kperator of gas gun is
to be send only driver
has reached there with
gas gun.
""(
""(
C =G
C =G
1"
C =G
C "
I don*t have gas gun.
%7Ks has already
reached inside with
staff.
7ow many water
canons are there.
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G6## G61 ote down that in /@ 4round
'olice is beating the public
persons.
G61 G6## /oad is bloc2ed through
barricades at A$meri 4ate.He can*t leave the vehicle
without staff.
HI/>@>%% @K4 U IA/N t.&J=6;6"G11 %hift ight
uty D ': to D A:! G 6 ;G
ime Call etail
10=D G6;G G61 'olice is misbehaving with
Baba /amdev.
HI/>@>%% @K4 U IA/N t.J&J=6;6"G11 %hift ight
uty D ': to D A:! G P 1G
ime Call etail
D ': %hift Change and charge
ta2en by 7C med %ingh
o.D99J'C/" am G61 G61G +rom G61G %I 8aspal '%
:angol 'uri U Ct. arun
#G#;JA' sustained in$ury
and we are ta2ing them to
8' 7ospital.
".1G G61 G61G G61G told that both %I 8aspal
and Ct arun admitted in
8' 7ospital through uty
Ct. A$ay 119=JC.
HI/>@>%% @K4 U IA/N t.&J=6;6"G11 %hift ight
uty D ': to DA:! B 6 11
ime Call etail
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".#G A: wo in$ured persons ta2en to
8' 7ospital namely /a$
Bala wJo 8albeer /Jo
4urgaon, Age6=&, 8agdish
sJo Asha and, Age6=& yrs.
"G( C=G C1" Both of vehicles is to be
send, water canon is only
one
"G( C1" C=G /ight now only one is as2ed
about so send only one.
"G( C1" C=G %end one. %end one
instantly. If other will bere?uired it will be informed.
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 I'
gate. hey were only two in number and were as2ed to be
positioned at the I' entrance. In fact, as recorded in one of the
above entries, there was only one water cannon available which
was positioned at the I' 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
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the CC cameras and around the same time, the bric2s were
thrown by the followers of respondent o.& 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 Nou call at cellphone and inform
"&B that he will also tal2 and that gate towards 8@ :arg which
was to be opened is not open yet5. Another conversation recorded
at the same time was 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.
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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 DDth 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
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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
hospitali-ation for medical treatment and surgery. Kn the other
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 aya2
7ospital, ew elhi. Copies of their medico legal en?uiry
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 eath in
this case occurred as a %epticemia, following cervical vertebral
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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
@ocal >xamination0
1. /eddish bluish discolouration below and
behind
@eft ear U another reddish blue
discolouration
In @ateral middle of nec2 on @! %ide
present.
". /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 flexor
aspect of middle of @eft forearm5
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1#1. In addition, the medico legal case sheet of one eepa2
recorded, alleged 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
r. /am :anohar @ohia 7ospital and were not accompanied by the
'olice. A number of such medico legal case sheets have been
placed on record with similar notings. I do not consider it
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
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4overnment 7ospital, /a$pura, Civil @ines, elhi 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
persons was much higher in comparison to that of the 'olice. I
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 o.&, at least five persons had suffered serious in$uries
including head in$ury, fracture of hand, leg and bac2bone. his
included haramveer, :adanlal Arya, 8agdish, Behen /a$bala,
%wami Agnivesh and 8agat :uni, etc.
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1#&. If this medico legal evidence is examined in light of the
photographs placed on record and the CC 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 cameras as well as from the medical evidence on record.
Kne r. 8asbir has filed an affidavit stating that he had made a call
from his Cell 'hone o. 9D1D(;=;&1 to o. 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
aya2 7ospital where he was medically examined. his medical
record shows that he was assaulted by the 'olice in Baba /amdev*s
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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
caused merely by fall or simply stampede. he veracity of this
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 r. 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 footages inasmuch as
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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
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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 o. &, it has been specifically stated in paragraph 1(0
It must be noted that as per the directions of
the 'olice, only one entryJexit gate was being2ept 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 easilyhave 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 o.& appears to be correct inasmuch as
vide its letter dated "nd 8une, "G11, while granting the permission
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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 I' 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 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
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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 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
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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 I' entrance.
+urthermore, even the CC 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
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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 Camera o. = clearly shows that
some members of the assembly followers of Baba /amdev!
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
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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. /ule 1&.=; of the 'un$ab 'olice
/ules which are applicable to elhi! 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
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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&&. ormally, 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
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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 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
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
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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
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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. othing 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
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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 camera o. #1 at about "."" a.m., and confirmed by various
news report footages. It shows that there was lac2 of fire
extinguishing systems. 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. he 'olice, in breach of their duty, acted
with uncontrolled force. 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 o. &, its members and Baba /amdev committed
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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 o.&, 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. ow, 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
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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 :C
had not cancelled or revo2ed its permission in favour of
/espondent o.& 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 o.& 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 elhi 'olice and after ta2ing the same into
consideration, elhi 'olice had passed orders on "nd and #rd 8une,
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"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 o. & 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
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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,
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however, only for a valid, proper and $ustifiable reason. %uch a
decision cannot be arbitrary or capricious.
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
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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
announcements and help the people to disperse. he 'olice,
admittedly, did not ma2e any such announcements because it
anticipated a bac2lash. Baba /amdev and other representatives of
/espondent o. & 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.
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1=#. It is true and, without hesitation, I notice that the CC
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, elhi 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 o.&. +actually, it is
correct. he affidavits filed by the Chief %ecretary, elhi 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 "1st 8uly, "G11, while, on the other,
admitted that he had received the report from the %pecial
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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 eputy 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
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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 elhi '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 C elhi, 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 9th %eptember,
"G1G issued by the :inistry of 7ome Affairs, 4overnment of India
under sub6section1!a! of %ection 1( of the ' Act. It is further
submitted that in terms of Article "#9AA#!a!, the @egislative
Assembly of the C elhi has legislative competence to enact laws
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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 C
elhi. he 7ome %ecretary, in his affidavit, on the other hand, has
stated that the :inistry of 7ome Affairs neither directed nor is
consulted by elhi '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, elhi
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
the executive action of the present 2ind. he :inistry of 7ome
Affairs, nion of India is not only responsible for maintaining the
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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' 8-,' - $& -' +$' *&' S'8%-& 144 C.P.C.! %+,78$%-& $& &+%' #% '''&8' %- %' $8% - %'8$' & $&
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 191!a! and 191!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
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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 AI/ 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
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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
prevention or speedy remedy is desirable. he legislative intention
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 :C owns the /amlila :aidan and, therefore,
is holding this property as a public trustee. he :C had given
permission to use the /amlila :aidan for holding %o(a shivir and
allied activities with effect from 1st 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
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sought from the land owning agency and all other instructions that
may be given by the 'olice from time to time should be
implemented. @astly, that such permission could be revo2ed at
any time.
1=9. ide letter dated "(th :ay, "G11, the eputy Commissioner of
'olice, Central istrict, had sought clarification from the 'resident
of respondent o. & 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 ev*s indefinite fast at /amlila :aidan, which was contrary to
the permission sought for. /espondent o. &, vide letter dated "Dth
: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
the attendant circumstances, the eputy Commissioner of 'olice
Central istrict! vide his letter dated 1st 8une, "G11, informed the
office bearers of respondent o. & that in view of the current
scenario and the law and order situation prevailing, they were
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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 C' 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 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 eputy
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
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review. Certain inputs given by the %pecial Branch of elhi '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. As per that report, the protest was
on the following issues0
1. o bring the blac2 money worth /s. for &GGla2hs 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
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
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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 theorgani-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 causedisturbanceJsabotage 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
herefore, a sharp vigil, ade?uate
arrangements by local police, 'C/, raffic
'olice are suggested at and near /amlila
4round, /.%. +ly6over, enroute, 8antar :antar
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to avoid any untoward incident. +urther,
elhi6'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 o. &, though they were aware of all the facts. he
Central istrict of elhi 'olice, on "
nd
8une, "G11 itself, noticed all
the factors and made a report with regard to the 'olice
arrangements at the /amlila :aidan. Amongst others, it stated
the following ob$ectives06
1.All the persons will gain entry through
+:s.
". >very person will be searchedJfris2ed
thoroughly to ensure the security of
I'sJhigh dignitaries, 4ovt. property and
general public etc.
#. o ensure clear passage to I'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.
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;. 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 eputy
irector, 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
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any conditions were violated or there was any threat, much less
imminent threat, to public peace and tran?uility. he %o(a camp
carried its activities for those days.
1;=. As already noticed, Baba /amdev had also been granted
permission to hold a hunger stri2eJSat%a(rah at the 8antar :antar
on &th 8une, "G11. he restriction placed was that it should be
with a very limited gathering. +urther, vide letter dated ";
th
:ay,
"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
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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 %ub6ivision Mamla :ar2et, elhi 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;(. uring 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 o. & 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.
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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 o. & 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 o. & 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.
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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 :C 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
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the other, of imposing a restriction on exercise of a fundamental
right by respondent o.& 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 elhi 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
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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
elhi.
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 o.&, 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
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imposed in the letters granting permission were breached by the
organisers at any relevant point of time. >ven on #rd 8une, "G11,
the eputy Commissioner of 'olice, Central istrict, 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
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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 o. & 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
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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 eputy
irector 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 o. & to
ta2e certain actions or not ta2e certain actions which is not only
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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 eputy Commissioner of 'olice,
Central istrict and %pecial Commissioner of 'olice, @aw and
Krder, elhi. 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 ipen 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
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by Constable o.D"(; of the 'C/ to the 'olice %tation. %imilarly,
on =th 8une, "G11 at #0""0=#, another call was received by
Constable %heetal o.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
o.& that there was only one main entry and exit for the public.
he I' entrance and I' 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
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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 o. & had made certain misrepresentations
to the authorities. espite ?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
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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. he doubts reflected in the affidavits were matters
which could have been resolved or clarified by mutual
deliberations, as it was done in the past. he directions issued to
respondent o.& on 1st 8une, "G11 were to ensure proper security
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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 shamiana Jtent. 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.
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and withdraw the permissions. he matter could be resolved by
mutual deliberation and intervention by the appropriate
authorities.
1DG. In view of the affidavits having been filed on behalf of
/espondent o.#, a person of the ran2 of Commissioner of 'olice,
elhi, wherein he has owned the responsibility for the events that
have occurred from 1
st
8une, "G11 to &
th
J=
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
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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,
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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
protestJdharna Janshan 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. o 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
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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
ivision. he decision, therefore, appears to be contradictory in
terms.
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&&
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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
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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. uinon prohi!it Dua
prohi!ere protest asentire videthir 7e who does not prohibit when
he is able to prohibit assents to it!.
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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. enial
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'$-&$7' &-%8' $ '>*'+'&% - 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 persons!. 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
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%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.
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1DD. eedless 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
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'olice. According to respondent o. & 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. o 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
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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. on6grant 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'>*'+'&% - P-78' ,'+-& $& % ''8% -& %' %8-&'' & %'+ - A%87' 1?(1)($) $& 1?(1)() ','8%v'7#% '''&8' %- %' $8% - %' ,''&% 8$'
191. he contention on behalf of respondent o.& 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
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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 :C and they granted the
permissionJlicence to use the said property from 1 st 8une, "G11 to
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"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 :C /ules
which re?uires grant of personal hearing before revocation of a
permission granted by the :C.
19#. o contra, the contention raised on behalf of respondent o.#,
the Commissioner of 'olice, elhi, is that there are specific powers
vested in the 'olice in terms of the ' Act, the 'un$ab 'olice /ules,
as applicable to elhi 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
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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
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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
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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 191!a! and 191!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
191!a! and 191!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
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mandate and the re?uirements of irective '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
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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 irective
'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
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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. he preventive
steps should be founded on actual and prominent threat
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
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of the ' 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 ' 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 ' 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. elhi 'olice
has also issued a %tanding Krder #G9 in relation to )/egulation of
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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
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to ta2e any action. he 'olice only 2ept the senior officers in the
:inistry of 7ome Affairs informed. Hhat transpired at the site is
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 o. " 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& 199(! ( %CC
91<, R&& *ar( v& Superintendent$ ;istrict Jail$ Saharanpur 7 +rs&
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
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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. It is not necessary for me to reiterate
those facts. %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 a!ulal
"arate supra! and further held that hese fundamental facts
emerge from the way the occasions for the exercise of the power are
mentioned. isturbances of public tran?uility, riots and affray lead
to subversion of public order unless they are prevented in time.
uisances dangerous to human life, health or safety have no doubt
to be abated and prevented..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
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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
Dth 8une, "G11 has already been referred by me above. his
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 ' Act to enforce the
same. he decision so had also been ta2en by the elhi 'olice.
he :inister had re?uested the general public to appreciate the
constraints and difficult circumstances under which the elhi
'olice had to discharge its functions. his statement was even
clarified with more reasons and elaborately in the exclusive
interview of the :inister with ews on the same date on the
television. 7e is stated to have said that ultimately when the tal2s
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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 elhi '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 o. &, 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,
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"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 191!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
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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
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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
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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 epartment 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
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It 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 andplace 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 ' 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
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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 "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.
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"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
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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 eputy Commissioner of 'olice, Central
istrict, arya 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 191!a! and 191!b! of the Constitution as this
would s?uarely fall within the regulatory mechanism of reasonable
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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.
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R',-&7% - %' T*%! M'+' - %' A'+7! %'%$%* $& *%
""#. 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
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matter of public policy, volenti cannot erase the duty or breach of it
Ref& Clerk 7 Lindsell on Torts$ Twentieth Hdition$ p(& B5 !&
"";. 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. )egligence* 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 negligence,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. ritish Colum!ia Hlectric R%&
19=1! A.C. ;G1 at ;11< 0
Hhen 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 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
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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. here could be cases of
negligence between spectators and 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$ BA2& 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.
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""9. A negligence could be composite or contributory. )egligence*
does not always mean absolute carelessness, but want of such a
degree of care as is re?uired in particular circumstances.
)egligence* 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. ormally, 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 ehicles Act, in the case of
#unicipal Corporation of *reater om!a% v. Shri La<man I%er 7 8nr&
AI/ "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. os. (11&6(11= of "GG# with
C.A. o. (11; of "GG# and C.A. o. ;(&D of "GG&, pronounced on
1#th Kctober, "G11! while considering awarding of compensation to
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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 B 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 191!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
the citi-ens of India. Article #D1! provides that the %tate shall
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.
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"#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 =1Ai! 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. Its enforcement is the natural
conse?uence. 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 o. &. he video and the footage of
CC 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 o. & 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
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receive the order though obviously he had come to 2now about the
said order. At the time of the incident, Baba /amdev was sleeping
in the rest room. hereafter he came to the stage and when
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 a!a6i will (o onl% if people wanted and the *od desires it&
"#1. After some time, Baba /amdev climbed onto the stage and
thereafter, disappeared. In the CC 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
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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 o. & 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 o. & 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. All
were expected to cooperate in the larger interest of the public. he
'olice was concerned with the problem of law and order while
respondent o. & 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 o. & ought to have acted in tandem and
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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
Baba /amdev led to an avoidable lacerating episode. >ven if the
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 o. & as well. he role of Baba /amdev at that crucial
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$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.
iolation 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 o. & 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
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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
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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
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large scale meetings, dharnas and protests, would not infringe
the fundamental rights enshrined under Articles 191!a! and
191!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
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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.
ue 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
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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:C had not revo2ed its permission and the
same was valid till "Gth 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
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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 agitationJdharna J 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
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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
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-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
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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.
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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 incident should be awarded ad hoc
compensation. %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
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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.
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"#;. 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 r. /a$eev havan, learned amicus curiae$
:r. /.+. ariman, learned %olicitor 4eneral of India, :r. '.'.
:alhotra, learned Additional %olicitor 4eneral, :r. 7arish . %alve,
:r. '.7. 'are2h, :r. /am 8ethmalani, learned senior advocates,
other learned counsel assisting them and all other counsel
appearing in their own right.
8.
ew elhi3 %watanter Mumar<
+ebruary "#, "G1"
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
SUO MOTU W.P. (CRL.) NO. 122 OF 2011
RE : Ramlla Ma!a" I"#!$"% ....P$%%&"$'
DT. *.0+.2011
,$'--
H&m$ S$#'$%a'/ U"&" & I"!a O'-. 3R$-4&"!$"%-
J U D G M E N T
D'. B.S. CHAUHAN J.
l. Having had the advantage of going through the lucid and elaborately
dicued !udg"ent of "y etee"ed brother #utice $%atanter &u"ar' ( feel
encouraged to contribute to thi ronounce"ent in "y o%n hu"ble %ay on
the reciou iue of liberty and freedo"' guaranteed to our citi*en a
funda"ental right under the +ontitution and the oible la%ful retriction
that can be i"oed for curtailing uch right. ,he legality of the order aed
under $ection 144 +r.-.+. by the itant +o""iioner of -olice' &a"la
/aret' +entral itrict' elhi i alo ub!ect to legal crutiny by "e in thee
roceeding to find out a to %hether the aid order i in confor"ity %ith the
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roviion of $ection 144 +r.-.+. read %ith $ection 134 thereof and the elhi
-olice $tanding rder 309.
2. ( reectfully agree %ith all the obervation and the finding
recorded by "y colleague and ( alo concur %ith the obervation that the
finding recorded on the ufficiency of reaon in the order dated 4.6.2011 are
tentative %hich could have been challenged if they o deired before the
aroriate foru" in roer roceeding. onethele' the reervation that (
have about $tate -olice action viavi the incident in uetion and "y
oinion on the curtail"ent of the right of rivacy of leeing individual ha
to be ereed a it directly involve the ta"ering of inviolate right' that
are rotected under the +ontitution. -roceeding under $ection 144' even if
reorted to on ufficient ground' the order could not be i"le"ented in uch
unruly "anner. $uch a o%er i invoed to revent the breach of eace and
not to breach the eace itelf.
3. aba a" ev along%ith hi large nu"ber of follo%er and
uorter erfor"ed a $hanti -aath at about 10 .". on 4th
#une' 2011'
%hereafter' all thoe %ho had ae"bled and tayed bac' %ent to lee under
tent and canoie to again get u in the "orning the net day at about 4 .".
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to attend the chedule of htang oga training to be conducted by aba
a"dev.
4. #ut after "idnight' at about 12.30 a.". on the 5th of #une' 2011' a
huge contingent of about "ore than a thouand olice"en urrounded the
enca""ent %hile everybody %a fat alee inide. ,here %a a i*eable
cro%d of about 20'000 eron %ho %ere leeing. ,hey %ere forcibly %oen
u by the -olice' aaulted hyically and %ere virtually thro%n out of their
tent. ,hi %a done in the urorted eercie of the olice o%er conferred
under $ection 144 +r. -.+. on the trength of a rohibitory order dated
4.6.2011 aed by the itant +o""iioner of -olice a "entioned
hereinabove.
5. ,he "anner in %hich the aid order ca"e to be i"le"ented' raied a
dee concern about the tyrannical aroach of the ad"initration and thi
+ourt too cogni*ance of the incident calling uon the elhi -olice
d"initration to an%er thi caue. ,he incident had uhered a huge uroar
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 recribed in la%.
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6. ,he uetion i a to %hether uch an order tand rotected under the
retriction claue of rticle 19 of the +ontitution of (ndia or doe it violate
the right of a eaceful leeing cro%d' invading and intruding their rivacy
during lee hour. ,he incident alo raie eriou uetion about the
credibility of the olice act' the rocedure follo%ed for i"le"entation of a
rohibitory order and the !utification thereof in the given circu"tance.
7. ,he right to eacefully and la%fully ae"ble together and to freely
ere oneelf couled %ith the right to no% about uch ereion i
guaranteed under rticle 19 of the +ontitution of (ndia. $uch a right i
inherent and i alo couled %ith the right to freedo" and liberty %hich have
been conferred under rticle 21 of the +ontitution of (ndia.
8. ,he bacground in %hich the aid ae"bly ha gathered ha already
been elained in the !udg"ent delivered by "y learned brother and'
therefore' it i not neceary to enter into any further detail thereof.
,he fact re"ain that i"le"entation of ro"ulgated rohibitory
order %a taen %hen the cro%d %a alee. ,he aid ae"bly ere' at
that "o"ent' did not ri"a facie reflect any arehenion of e"inent threat or
danger to ublic eace and tranuillity nor any active de"ontration %a
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being erfor"ed at that dead hour of night. ,he -olice' ho%ever' ro"ulgated
the order on the bai of an alleged infor"ation received that eace and
tranuillity of that area %ould be diturbed and eole "ight indulge in
unla%ful activitie. ,he rohibitory order alo recite that condition eit
that unretricted holding of a ublic "eeting in the area i liely to caue
obtruction to traffic' danger to hu"an afety and diturbance of ublic
tranuillity and in order to enure 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
cannot be erved individually a uch it hall be ublihed for infor"ation
through the -re and by affiing the coie on the otice oard of the ffice
of the -olice fficial' d"initration and -olice $tation' including the
/unicial +ororation ffice.
10. o doubt' the la% of ocial control i reerved in the hand of the
$tate' but at the a"e ti"e' rotection againt un%arranted govern"ental
invaion and intruive action i alo rotected under the la% of the country.
:iberty i definitely no licence and the right of uch freedo" i not abolute
but can be regulated by aroriate la%. ,he freedo" fro" official
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creativity and vitality. $lee i' therefore' a biological and eential ingredient
of the baic neceitie of life. (f thi lee i diturbed' the "ind get
dioriented and it dirut the health cycle. (f thi dirution i brought about
in odd hour reventing an individual fro" getting nor"al lee' it alo
caue energy dibalance' indigetion and alo affect cardiovacular health.
,hee y"to"' therefore' "ae lee o eential that it derivation %ould
reult in "ental and hyical torture both. (t ha a %ide range of negative
effect. (t alo i"air the nor"al functioning and erfor"ance of an
individual %hich i co"ulory in daytoday 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 dirution of lee i to derive a eron of a
baic riority' reulting in advere "etabolic effect. (t i a "edicine for
%earine %hich if i"eded %ould lead to diatrou reult.
12. erivation of lee ha tu"ultuou advere effect. (t caue a tir
and diturb the uiet and eace of an individual; hyical tate. natural
roce %hich i inherent in a hu"an being if diturbed obviouly affect
baic life. (t i for thi reaon that if a eron i derived of lee' the effect
thereof' i treated to be torturou. ,o tae a%ay the right of natural ret i alo
therefore violation of a hu"an right. (t beco"e a violation of a funda"ental
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right %hen it i diturbed intentionally' unla%fully and for no !utification. ,o
aroue a eron uddenly' bring about a feeling of hoc and benu"bne.
,he reure of a udden a%aening reult in al"ot a void of enation.
$uch an action' therefore' doe affect the baic life of an individual. ,he tate
of leeing i au"ed by an individual %hen he i in a afe at"ohere. (t i
for thi reaon that thi natural yte" ha been inbuilt by our creator to
rovide relaation to a hu"an being. ,he "ucle are relaed and thi cycle
ha a nor"al recurrence every night and lat for everal hour. ,hi neceity
i o eential that even all our tranort yte" rovide for facilitie of lee
%hile travelling. $lee i therefore' both' life and inherent liberty %hich
cannot be taen a%ay by any uncruulou action. n (rih -roverb goe on
to ay that the beginning of health i lee. ,he tate of lee ha been
decribed by Ho"er in the fa"ou eic (liad a <lee i the t%in of death<.
eron' therefore' cannot be reu"ed to be engaged in a cri"inal activity or
an activity to diturb eace of "ind %hen alee. ritotle' the great =ree
hilooher ha aid that all "en are alie %hen alee. ,o reu"e that a
eron %a che"ing to dirut ublic eace %hile alee %ould be un!ut
and %ould be entering into the drea" of that eron.
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13. ( a" be%ildered to find out a to ho% uch declaration of the
intention to i"oe the rohibition %a affected on a leeing cro%d. ,here
"ay be a reaon available to i"oe rohibitory order calling uon an
ae"bly to diere' but to "e' there doe not aear to be any lauible
reaon for the olice to reort to blo% on a leeing cro%d and to thro% the"
out of their enca""ent abrutly. ,he affidavit and elanation given do
not dicloe a to %hy the olice could not %ait till "orning and rovide a
reaonable ti"e to thi cro%d to diere eacefully. ,he undue hate caued
a huge diarray and reulted in a catatrohe that %a %itneed on /edia and
,eleviion throughout the country. ( fail to find any elanation for the
gravity or the urgent ituation reuiring uch an e"ergent action at thi dar
hour of "idnight. (' therefore' in the abence of any uch !utification have no
otion but to derecate uch action and it alo cat a eriou doubt about the
eitence of the ufficiency of reaon for uch action. ,he incident in thi
litigation i an ea"le of a %eird ereion of the deire of a tyrannical
"ind to threaten eaceful life uddenly for no !utification. ,hi couled %ith
%hat i undertood of lee hereinbefore' "ae it clear that the reciitate
action %a nothing but a clear violation of hu"an right and a definite
violation of rocedure for achieving the end of diering a cro%d.
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14. rticle 355 of the +ontitution rovide that the =overn"ent of every
$tate %ould act in accordance %ith the roviion of the +ontitution. ,he
ri"ary ta of the $tate i to rovide ecurity to all citi*en %ithout violating
hu"an dignity. -o%er conferred uon the tatutory authoritie have to be'
erforce' ad"itted. onethele' the very eence of contitutionalit i alo
that no organ of the $tate "ay arrogate to itelf o%er beyond %hat i
ecified in the +ontitution. >?ide@ G,5 I"!-%'$- L%!. . A"'. 6.
I"#&m$ Ta7 O#$' . A"'.' >2011) 4 $++ 36A and Na"!" S"!a'
O'-. 6. S%a%$ & C88a%-9a'8' ( 2011 $+ 2839).
15. (n H.H. Ma8a'aa!8'aa Ma!8a6 Ra& J6a Ra& S#"!a
Ba8a!' O'-. 6. U"&" & I"!a ( 1971 $+ 530' thi +ourt held that
even in civil co""otion or even in %ar or eace' the $tate cannot act
catatrohically outide the ordinary la% and there i legal re"edy for it
%rongful act againt it o%n ub!ect or even a friendly alien %ithin the
$tate.
16. (n MS M&%lal Pa!am4a% S9a' Mll- C&. L%!. 6. S%a%$ & U.P. .
O'-.' ( 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
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and co"letely a any other and the =overn"ent i no ecetion. ,herefore'
the $tate authoritie are under a legal obligation to act in a "anner that i fair
and !ut. (t ha to act honetly and in good faith. ,he uroe of the
=overn"ent i al%ay to erve the country and enure the ublic good. >$ee
alo@ D.5. Ba- 6. S%a%$ & W$-% B$"9al' ( 1997 $+ 610).
17. -rivacy and dignity of hu"an life ha al%ay been conidered a
funda"ental hu"an right of every hu"an being lie any other ey value
uch a freedo" of aociation and freedo" of eech. ,herefore' every act
%hich offend or i"air hu"an dignity tanta"ount to derivation ro tanto
of hi right to live and the $tate action "ut be in accordance %ith reaonable'
fair and !ut rocedure etablihed by la% %hich tand the tet of other
funda"ental right. >?ide@ F'a"#- C&'al$ Mll" 6. T8$ A!m"-%'a%&'
U"&" T$''%&'/ & D$l8 . O'-.' ( 1981 $+ 746).
18. ,he +ontitution doe not "erely ea for hu"an right rotection.
(t i evident fro" the catena of !udg"ent of thi +ourt that it alo ea of
reervation and rotection of "an a %ell a ani"al' all creature' lant'
river' hill and environ"ent. ur +ontitution rofee for collective life
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and collective reonibility on one hand and individual right and
reonibilitie on the other hand.
19. (n 58a'a; S"98 6. S%a%$ & U.P. O'-. ' ( 1963 $+ 1295A and
G&6"! 6. S%a%$ & Ma!8/a P'a!$-8 A"'.' ( 1975 $+ 1378' thi
+ourt held that right to rivacy i a art of life under rticle 21 of the
+ontitution %hich ha ecifically been reiterated in P$&4l$<- U"&" &'
C6l L=$'%$- 6. U"&" & I"!a . A"'.' ( 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 mightnot 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 promoteand 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"hai
added).
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20. ,he citi*enCeron have a right to leiureA to leeA not to hear and
to re"ain ilent. ,he noc at the door' %hether by day or by night' a a
relude to a earch %ithout authority of la% a"ount to be olice incurion
into rivacy and violation of funda"ental right of a citi*en. >$ee@ W&l 6.
C&l&'a!&' >1948) 338 D$ 25).
21. ight to rivacy ha been held to be a funda"ental right of the citi*en
being an integral art of rticle 21 of the +ontitution of (ndia by thi +ourt.
(llegiti"ate intruion into rivacy of a eron i not er"iible a right to
rivacy i i"licit in the right to life and liberty guaranteed under our
+ontitution. $uch a right ha been etended even to %o"an of eay virtue
a he ha been held to be entitled to her right of rivacy. Ho%ever' right of
rivacy "ay not be abolute and in ecetional circu"tance articularly
urveillance in cononance %ith the tatutory roviion "ay not violate uch
a right. >?ide@ Mala; S"98 $%#. 6. S%a%$ & P"a= Ha'/a"a O'-.'
( 1981 $+ 760A S%a%$ & Ma8a'a-8%'a A"'. 6. Ma!8;a' Na'a/a"
Ma'!;a'' ( 1991 $+ 207A R. Raa9&4al > R.R. G&4al A"'. 6. S%a%$
& Taml Na! O'-.' ( 1995 $+ 264A PUCL 6. U"&" & I"!a A"'.'
( 1997 $+ 568A M'. ?@ 6. H&-4%al ? >1998) 8 $++ 296A S8a'!a 6.
D8a'm4al' >2003) 4 $++ 493 A P$&4l$- U"&" &' C6l L=$'%$- (PUCL)
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A"'. 6. U"&" & I"!a A"'.' ( 2003 $+ 2363 A D-%'#% R$9-%'a'
a"! C&ll$#%&' H/!$'a=a! A"'. 6. Ca"a'a Ba"; O'-. ' >2005) 1 $++
496 A B8a6$-8 Ja/a"% La;8a" 6. S%a%$ & Ma8a'a-8%'a O'-. >2009) 9
$++ 551A and Sm%. S$l6 O'-. 6. S%a%$ & 5a'"a%a;a ( 2010 $+
1974).
22. (n Ram J$%8mala" O'-. 6. U"&" & I"!a O'-.' >2011) 8 $++
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 rightto 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. ,he court have al%ay i"oed the enalty on diturbing eace of
other by uing the a"lifier or beating the dru" even in religiou
cere"onie. >?ide@ Ra=" M;8$'$$ . O'-. 6. S%a%$ & W$-% B$"9al .
O'-.' ( 1985 +al. 222A B''a=aa' F'$&';- D$al$'- A--&#a%&" 6.
C&mm--&"$' & P&l#$ Cal#%%a' ( 1998 +al 121A C8'#8 & G&! (Fll
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G&-4$l) " I"!a 6. 5.5.R. Ma$-%# C&l&"/ W$la'$ A--". . O'-. ' (
2000 $+ 2773A and F&'m P'$6$"%&" & E"6'&"m$"% a"! S&"!
P&ll%&" 6. U"&" & I"!a . O'-.' ( 2006 $+ 348). (n the later
!udg"ent' thi court iued everal direction including banning of uing the
fire%or or fire cracer ecet bet%een 6.00 a.". and 10.00 .". ,here
hall no ue of fire cracer in ilence *one i.e. %ithin the area le than 100
"eter around hoital' educational intitution' court' religiou lace.
24. (t i in vie% of thi fact that' in "any countrie there are co"lete
night curfe% >at the airort i.e. banning of landing and taing off bet%een
the night hour)' for the reaon that the concet of ound lee ha been
aociated %ith ound health %hich i inearable facet of rticle 21 of the
+ontitution.
25. (t "ay alo be ertinent to "ention here that variou tatutory
roviion rohibit arret of a !udg"ent debtor in the night' a %o"an %anted
in a cri"inal cae after unet and before unrie and retrain to enter in the
night into a contructed area uected to have been raied in violation of the
anctioned lan' "ater lan or Eonal -lan for the uroe of urvey or
de"olition.
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>$ee@ $.55 of +ode of +ivil -rocedureA $.46>4) +r.-.+.A and $ection 25 and
42 of the D.-. Drban -lanning and evelo"ent ct' 1973).
26. Fhile deter"ining uch "atter the crucial iue in fact i not
%hether uch right eit' but %hether the $tate ha a co"elling interet in
the regulation of a ub!ect %hich i %ithin the olice o%er of the $tate.
Dndoubtedly' reaonable regulation of ti"e' lace and "anner of the act of
leeing %ould not violate any contitutional guarantee' for the reaon that a
eron "ay not clai" that leeing i hi funda"ental right' and therefore' he
ha a right to lee in the re"ie of the $ure"e +ourt itelf or %ithin the
recinct of the -arlia"ent.
27. /ore o' ( a" definitely not dealing herein %ith the right of
ho"ele eron %ho "ay clai" right to lee on footath or ublic
re"ie but retrict the cae only to the etent a under %hat circu"tance a
leeing eron "ay be diturbed and ( a" of the vie% that the $tate
authoritie cannot derive a eron of that right any%here and at all ti"e.
28. Fhile dealing %ith the violation of Hu"an ight by -olice
fficial' thi +ourt in P'%84al S"98 O'-. 6. S%a%$ & P"a= A"'.
>2012) 1 $++ 10' held a under@
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$&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$. &he negative
obligation means the overall prohibition on arbitrarydeprivation of life. In this context positive obligation
re#uires that *tate has an overriding obligation to protect
the right to life of every person within its territorial
"urisdiction.$
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 lie a right to breathe' to eat' to
drin' to blin' etc.
30. $ection 144 +r.-.+. deal %ith i""ediate revention and eedy
re"edy. ,herefore' before invoing uch a roviion' the tatutory authority
"ut be atified regarding the eitence of the circu"tance ho%ing the
neceity of an i""ediate action. ,he sine #ua non for an order under $ection
144 +r.-.+. i urgency reuiring an i""ediate and eedy intervention by
aing of an order. ,he order "ut et out the "aterial fact of the ituation.
$uch a roviion can be ued only in grave circu"tance for "aintenance of
ublic eace. ,he efficacy of the roviion i to revent o"e har"ful
occurrence i""ediately. ,herefore' the e"ergency "ut be udden and the
coneuence ufficiently grave.
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=overn"ent "ay' by rule' direct' and a coy thereof hall be
tuc u at uch lace or lace a "ay be fittet for
conveying the infor"ation to uch eron.
33. elhi -olice $tanding rder 309 egulation of -roceion and
ule recribe the "ode of ervice of the order aed under $ection 144
+r.-.+.' inter-alia@
>5) rrange"ent at the lace of de"ontration hould include
the follo%ing@
a) ilay of banner indicating ro"ulgation of $ection 144
+r.-.+.
b) t leat 2 videograher be available on either ide of the
de"ontration to cature both de"ontrator a %ell a
olice reoneCaction.
c) :ocation of "bulanceC-+ van for hifting in!ured eron.
d) :oud hailer hould be available.
>6) eeated ue of - yte" a reonible officer
aealingCadviing the leader and de"ontrator to re"ain
eaceful and co"e for%ard for "e"orandu"Cdeutation etc. or
court arret eacefully. nnounce"ent hould be
videograhed.
>7) (f they do not follo% aeal and turn violent declare the
ae"bly unla%ful on - yte" G videograh.
>8) Farning on - yte" rior to ue of any ind of force
"ut be enured and alo videograhed.
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>13) $ecial attention be aid %hile dealing %ith %o"en;
de"ontration only %o"en olice to tacle the".
34. ,he order dated 4.6.2011 aed under $ection 144 +r.-.+. read a
under@
<>i) %herea infor"ation ha been received that o"e
eoleCgrou of eole indulge in unla%ful activitie to
diturb the eace and tranuillity in the area of $ub iv.
&a"la /aret' elhi.
>ii) nd %herea reort have been received indicating that
uch condition no% eit that unretricted holding of ublic
"eeting' roceionCde"ontration etc. in the area i (iely
to caue obtruction to traffic' danger to hu"an afety and
diturbance of ublic tranuillity.
>iii) nd %herea it i neceary to tae eedy "eaure in
thi regard to revent danger to hu"an life' afety andditurbance of ublic tranuillity.
>iv) o%' therefore' in eercie of the o%er conferred uon
"e by virtue of $ection 144 +ri"inal -rocedure +ode 1973
read %ith =ovt. of (ndia' /initry of Ho"e ffair and e%
elhi; otification o. D.11036C1C2010' >i) D,(' dated
09.09.2010. ( /anohar $ingh' itant +o""iioner of
-olice' $ubiviion &a"la /aret' +entral itrict' elhi
do hereby "ae thi %ritten order rohibiting.
>vi) ny eron contravening thi order hall be liable to be
unihed in accordance %ith the roviion of ection 188 of
the (ndian -enal +odeA and
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>vii) the notice cannot be erved individually on all
concerned' the order i hereby aed earte. (t hall be
ublihed for the infor"ation of the ublic through the re
and by affiing coie on the notice board of the office of all+-' ddl. +-' +-' ,ehil officer' all olice tation
concerned and the office of the /+ and /+.
>viii) eligiou functionCublic "eeting etc. can be held
%ith rior er"iion' in %riting' of euty +o""iioner of
-olice' +entral itrict' elhi and thi order hall not aly
to roceion %hich have the reuiite er"iion of the
-olice.<
35. (t i evident fro" the order aed under $ection 144 +r.-.+. itelf
that the eole at large' leeing in tent' had not been infor"ed about uch
ro"ulgation and %ere not aed to leave the lace. ,here had been a diute
regarding the ervice of the order on the organi*er only. ,herefore' there
%a utter confuion and the gathering could not even undertand %hat the real
diute %a and had reaon to believe that olice %a trying to evict aba
a"dev forcibly. t no oint of ti"e' the ae"bly %a declared to be
unla%ful. (n uch a factituation' the olice ad"initration i to be bla"ed
for not i"le"enting the order' by trict adherence to the rocedural
reuire"ent. -eole at large have a legiti"ate eectation that Becutive
uthority %ould enure trict co"liance to the rocedural reuire"ent and
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%ould certainly not act in derogation of alicable regulation. ,hu' the
reent i a clear cut cae of Hu"an ight violation.
36. ,here %a no goi or dicuion of o"ething untrue that %a
going on. ,o the contrary' it %a ad"ittedly an ae"bly of follo%er' under a
eaceful banner of ogic training' fat alee. ,he ae"bly %a at leat'
urortedly' a conglo"eration of individual gathered together' ereive of
a deter"ination to i"rove the "aterial condition of the hu"an race. ,he ai"
of the ae"bly %a ri"a facie unob!ectionable and %a not to infla"e
aion. (t %a to %ard off o"ething har"ful. Fhat %a uiciou or
coniratory about the ae"bly' "ay reuire an invetigation by the
aroriate foru"' but to "y "ind the i"le"entation aear to have been
done in an unla%ful and derogatory "anner that did violate the baic hu"an
right of the cro%d to have a ound lee %hich i alo a contitutional
freedo"' acno%ledged under rticle 21 of the +ontitution of (ndia.
37. $uch an ae"bly i necearily illegal cannot be reu"ed' and even
if it %a' the individual %ere all alee %ho %ere taen by urrie
altogether for a i"ultaneou i"le"entation and action under $ection 144
+r.-.+. %ithout being receded by an announce"ent or even other%ie'
giving no ti"e in a reaonable %ay to the ae"bly to diere fro" the
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a"lila =round. ,o the contrary' the lee of thi huge cro%d %a
i""odetly and brutally outraged and it %a diered by force "aing the"
flee hither and thither' %hich by uch reciitate action' caued 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 eential for a hu"an being to "aintain the delicate balance
of health neceary for it very eitence and urvival. $lee i' therefore' a
funda"ental and baic reuire"ent %ithout %hich the eitence of life itelf
%ould be in eril. ,o diturb lee' therefore' %ould a"ount to torture %hich
i no% acceted 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 !utified a a neceary olice
action to etract the truth out of an accued involved in heinou and cold
blooded cri"e. (t i alo a device adoted during %arfare %here rioner of
%ar and thoe involved in eionage are ub!ected to treat"ent deriving
the" of nor"al lee.
39. +an uch an atte"t be er"itted or !utified in the given
circu"tance of the reent cae #udicially and on the trength of i"artial
logic' the an%er ha to be in the negative a a leeing cro%d cannot be
included %ithin the bracet of an unla%ful category unle there i ufficient
"aterial to brand it a uch. ,he fact a uncovered and the rocedural
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"andate having been blatantly violated' i "alice in la% and alo the art
layed by the olice and ad"initration ho% the outrageou behaviour
%hich cannot be !utified by la% in any civili*ed ociety. Ior the reaon