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Right To Protest In Public Roads : What SC Constitution Bench Held In 1972 Himatlal Case?

Ashok Kini
10 Oct 2020 11:31 AM GMT
Right To Protest In Public Roads : What SC Constitution Bench Held In 1972 Himatlal Case?
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The Supreme Court in its recent judgment holding that the public ways cannot be occupied indefinitely in the name of protests, have referred to a constitution bench judgment in HimatLal K. Shah v. Commissioner of Police, Ahmedabad. This piece is an explainer about the said judgment delivered in 1972 by a five judge bench headed by the then CJI SM Sikri.

In Himatlal, the rules framed by the Commissioner of Police, Ahmedabad, by the powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951,were under challenge. The Rules provided that, no public meeting with or without loudspeaker, shall be held on the public street within the jurisdiction of the Commissionerate of the Police, Ahmedabad City unless the necessary permission in writing has been obtained from the officer authorised by the Commissioner of Police. The Gujarat High Court dismissed the petitions challenging these Rules and thus it reached before the Supreme Court.

Justice SM Sikri, who wrote the lead judgment (also on behalf of Justices A.N. Ray, P. Jaganmohan Reddy) observed that there is nothing wrong in requiring previous permission to be obtained before holding a public meeting on a public street. It held that the right which flows from Art. 19 (1) (b) is not a right to hold a meeting at any place and time. However, it was found that the impugned Rules confers arbitrary powers on the officer authorised by the Commissioner of Police and therefore, it must be struck down. It will be open to the Commissioner of Police, Ahmedabad, to frame a proper rule or rules, the court said. Following observations were made in the judgment:

The real point in this case is whether the impugned rules violate Art. 19(1)(b). Rule 7 does not give any guidance to the officer authorised by the Commissioner of Police as to the circumstances in which he can refuse permission to hold a public meeting. Prima facie, to give an arbitrary discretion to an officer is an unreasonable restriction. It was urged that the Marginal Note of s. 33-power to make rules for regulation of traffic and for preservation of order in public place, etc.-will guide the officer. It is doubtful whether a marginal note can be used for this purpose, for we cannot imagine the officer referring to the marginal note of the section and then deciding that his discretion is limited, specially as the marginal note ends with 'etcetera'. It is also too much to expect him to look at the scheme of the Act and decide that his discretion is limited.
We may make it clear that there is nothing wrong in requiring previous permission to be obtained before holding a public meeting on a public street, for the right which flows from Art. 19 (1) (b) is not a right to hold a meeting at any place and time. It is a right which can be regulated in the interest of all so that all can enjoy the right. In our view rule 7 confers arbitrary powers on the officer authorised by the Commissioner of Police and must be struck down. The other Rules cannot survive because they merely lay down the procedure for obtaining permission but it is not necessary to strike them down for without Rule 7 they cannot operate. Rule 14 and Rule 15 deal both with processions and public meetings. Nothing we have said affects the validity of these two rules as, far as processions are concerned.

Public streets are the 'natural' places for expression of opinion and dissemination of ideas: Justice KK Mathew

Justice KK Mathew, in his separate but concurring opinion, considered the contention raised on behalf of the state that, there is no right, let alone a fundamental one, to hold public meetings on public street. The judge, referring to various authorities, made these observations:

Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems-religious, political,, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the 'natural' places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly.
Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If,therefore., the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city's function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks' with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly. The assumption made by Justice Holmes is that a city owns its parks and highways in the same sense and with the same rights a private owner owns his property with the right to exclude or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks. The parks are held for public and the public streets are also held for the public. It is doubtless true that the State or local authority can regulate its property in order to serve its public purposes. Streets and public parks exist primarily for other purposes and the social interest promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.
The framers of the Constitution were aware that public meetings were being held in public streets and that the public have come to regard it as part of their rights and privileges as citizens. It is doubtful whether, under the common law of the land, they have any such right or privilege but, nobody can deny the de facto exercise of the right in the belief that such a right existed. Common error facit jus (common error makes the law). This error was grounded on the solid substratum of continued practice,. over the years. The conferment of a fundamental right of public assembly would have been an exercise in utility, if the Government and the local authorities could legally close all the normal places, where alone, the vast majority of the people could exercise the right.
The power of the appropriate authority to impose reasonable regulation in order to assure the, safety and convenience of the people in the use of public highways has never been regarded as inconsistent with the fundamental right of assembly. A system of licensing as regards the time and the manner of holding public meetings on public street has not been regarded as an abridgement of the fundamental right of public assembly or of free speech. But a system of licensing public meeting will be upheld by Courts only if definite. standards are provided by the law for the guidance of the licensing authority. Vesting of unregulated discretionary power in a licensing authority has always been considered as bad.

While allowing the appeal, the judge observed:

"If there is a fundamental right to hold public meeting in a public street, the impugned Rule which gives an unguided discretion, practically dependent upon the subjective whim of an authority to grant or refuse permission to hold a public meeting on public street, cannot be held to be valid. "There is no mention in the rule of the reasons for which an application for licence can be rejected. "Broad prophylactic rules in the area of free expression and assembly are suspect. Precision of regulation must be the touch stone in an area so closely touching our precious freedoms" [see NAACP v. Button(3). I would allow the appeal."

There is no separate right of "public meeting": Justice Beg

Justice Mirza Hameedullah Beg, though concurred with the Chief Justice's judgment, observed that there is no separate right of "public meeting", let alone a constitutional fundamental right so described. In any case, the judge opined, there, is no such right attached to public streets which are dedicated for the particular purpose of passing and repassing with which any recognition of a right to hold a meeting on a public thoroughfare will obviously be inconsistent. Explaining his opinion, the judge further observed:

"It is true that there is a well recognised right of taking out processions on public thoroughfares in this country as an incident of the well understood right of their user by the public. But, I find it very difficult to proceed further and to hold that such a right could be extended and converted into a right to hold a public meeting on a thoroughfares The right to hold a public meeting may be linked with or even flow out of rights under Article 19(1)(a) to express one's opinions and 19(1)(b) to assemble peaceably and without arms, just as the right to take out processions or moving assemblies may spring from or he inextricably connected with these rights, yet, inasmuch as the right to hold a meeting at a particular place must rest on the proof of user of that place for the exercise of a fundamental right, it appears to me that the right to such a user must be established in each particular case quite apart from or independently of fundamental rights guaranteed by Article 19(1) of our Constitution. it involves something more than the exercise of a fundamental right although that something more may be necessary for and connected with the exercise of a fundamental right."

The judge, however, struck down the impugned Rules on the ground that it is capable of being used arbitrarily so as to discriminate unreasonably and unjustifiably and thus to affect the exercise of rights conferred by Articles 19(1) (a) and (b) without sufficient means 'of control over possible misuse of power.

Kerala HC Judgment banning public meetings on public roads and road margins

In 2010, the Kerala High Court, allowed a public interest litigation, and prohibited the Government or any authorities from granting any permission to hold meetings on public roads and road margins. Relying on Himatlal judgment, the state filed a review petition contending that Court cannot take away the right of the people by prohibiting holding of meetings on public streets. While dismissing the review petition, the bench comprising Justices CN Ramachandran Nair and PS Gopinathan observed:

"It may be noted that the decision was rendered 37 years back that too in the context of wide roads with low density of vehicles, and still it was within the powers of the Police Commissioner to decline permission for public meetings on streets, which provision was upheld by the Supreme Court. It is pertinent to note that Supreme Court specifically held that right to assemble under article 19(1)(b) of the Constitution does not mean that the right can be exercised at any and every place. There used to be a time when children were safely playing football on the road. However, now even for short distance people send their children to Schools in school buses, basically to ensure safety of children from dangerous traffic on road. We are of the view that Section 19 of the Police Act which is fifty year old now stands in conflict with the provisions of Kerala Highways Protection Act and the provisions of Municipalities Act and Panchayathraj Act which are fairly new legislations which do not confer power on any authority to grant permission to hold meetings on road and road margins which are essentially meant for vehicular traffic and for use by pedestrians. The State does not have a case that holding of meeting will not affect the traffic at least partially, which means that while holding meeting at least one side traffic will be held up and the alternate passage of vehicles will lead to inordinate delay for passengers to reach their destination, especially women office-goers and students who will reach home very late if not in the night on account of their being held up in traffic blocks. In fact, any such block on the road, even temporary, in our view is wrongful restraint within the meaning of Section 341 of the IPC and therefore any permission granted for holding meetings on roads and road margins leading to partial obstruction of traffic amounts to commission of an offence punishable under the IPC. As already stated by us time has changed and vehicle numbers have multiplied beyond the carrying capacity of the road system and roads are not expanded. Therefore under the current situation, Section 19 of the Kerala Police Act should be treated as having become redundant or at least inoperative."

Justice PS Gopinathan wrote a separate concurring opinion in which he said that the Right to conduct meeting is nothing superior than freedom of movement. "We have due regard for those who are arranging meetings and dedicated to the public cause. But while arranging meetings, we have to see that at no cost, it shall violate the fundamental rights of others, especially the freedom of  movement.", the judge added.

The Special Leave Petition filed against these orders were dismissed by the Supreme Court. Then the Kerala Legislature passed Kerala Public Ways (Restriction of Assemblies and Procession) Act, 2011. The validity of Section 5 of the Act was challenged before the High Court contending that the same was enacted to neutralise the law declared by the court prohibiting meetings in public roads and margins. The bench, struck down Section 5(1)(c) which gave authority to the District Police Chiefs to grant permission to any one to hold public meetings and assemblies on public ways and road margin. The Special Leave Petition, filed by the state challenging this judgment, is still pending before the Supreme Court. 

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