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

242

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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

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20120223 Ramlila Maidan