In Re: M. Visvanadha Rao and Others

This Criminal Revision Petition has been placed before a Full Bench at the instance, we are informed, of the Public Prosecutor. The dispute out

of which it arises is concerned with the rights of the Hindus of Nellore town to conduct processions with music past the mosques of that place. The

Hindus have obtained from a competent Civil Court a declaration of their right to conduct such processions subject to certain limitations. In

October last, they were, however, prohibited by an order of the District Magistrate passed u/s 144, Criminal Procedure Code, from ""taking any

procession with music in any street of Nellore where there are mosques."" The operation of the order has been extended till 7th February by the

Governor in Council ""in so far as it prohibits any procession with music within 50 yards of any mosque in Nellore.

Mr. Ethiraj for the petitioners concedes that he cannot contend that it is the duty of the authorities who are responsible for the preservation of

the public peace in the town of Nellore to enforce the decree in all circumstances and at all costs. If that be so, cadit quaestio. If we are not being

asked to lay down that that is their duty, it is difficult to see what we are being asked to say. We are not here to advise the Government what

measures they should take to protect the rights of the Hindus or to preserve the public peace at Nellore. The preservation of the public peace is

their function and in the performance of that function, it may be necessary for them to override temporarily private rights. To quote the judgment of

Sir Charles Turner, C.J., in Sundaram Cketty and Ors. v. The Queen ILR (1883) M. 203 :

The first duty of Government is the preservation of life and property, and, to secure this end, power is conferred on its officers to interfere with

even the ordinary rights of members of the community. The order of 26th March, 1859, appreciates the distinction between rights which have a

primary and rights which have a secondary claim to such protection as the Government can afford; and where the Government cannot protect both

classes of rights, it may and it ought to abandon the latter to secure the former. In this view...the Government is not bound to deprive some

members of the community of the services of the force that is found necessary for the protection of their lives and property to enable others to

exercise a right which not only is not indispensable to life or to the security of property, but, in the case assumed, creates an excitement which

endangers both.

The position could not have been better stated. Where there is a conflict between the public interest and a private right the former must prevail.

The right which the petitioners claim and are entitled, in ordinary circumstances, to exercise has once been enforced by drafting police into the

town from seven other districts. If the Government consider that that is the only method by which the right can effectively be enforced, but that it

cannot be adopted without danger to the public interest at large, it is not for us to say that they are bound to adopt it or to suggest other means of

enforcement as to the efficacy or advisability of which they - and not we - are the proper judges. We decline to interfere and dismiss the petition.