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

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 MathewJustice 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...

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

Ashok Kini

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