M. Mohan Babu vs State of Andhra Pradesh and Another

This Court''s jurisdiction is invoked by the petitioner under Article 226 of the Constitution of India to decide as to where an individual''s freedom ends and the State''s power begins. This Court is confronted with the duty imposed upon it by the Constitution. The petitioner through his private Secretary submitted an application to the Commissioner of Police, Hyderabad City, Hyderabad, on 16-9-1997 requesting him to grant necessary permission to observe fast on October 2, 1997 at NTR Ghat, Tank-bund, Hyderabad, from 6-30 AM to 8-30 PM (for one day) against political corruption. Similar request is also made on behalf of the petitioner, through another letter, addressed to the Chairman, Hyderabad Urban Development Authority.

The petitioner in the affidavit filed in support of the writ petition briefly gives his personal back ground and details about his career in the film world and association with late Sri N. T. Rama Rao. It is stated that he has decided to launch a campaign against political corruption and stated to have received support from like minded people from different parts of the country in support of his idea of fighting against corruption in general and political corruption in particular. He claims to have got inspiration from the persons like Anna Hazare of Bombay. In furtherance of the object to gift against political corruption, the petitioner claims to have decided to launch campaign to begin with by observing fast on October 2, 1997 at NTR Ghat, near Tank-bund, Hyderabad from 6-30 AM to 8-30 PM. Such a decision was taken, according to him, as a mark of respect to Mahatma Gandhi, which led the freedom movement through means of non-violence and has chosen NTR Ghat as he has lot of respect for him and claims to have been influenced by his ideas and ideals.

The representation on behalf of the petitioner was filed on 16-9-1997 seeking necessary permission from the respondents for the reason that NTR Ghat is a public place, even according to the petitioner. The second respondents is the custodian of the place known as NTR Ghat. The writ petition, as filed on 29-9-1997 seeks the relief of declaration of the action of the respondents in not granting permission to the petitioner to enable him to observe fast on October 2, 1997 at NTR Ghat, near Tank Bund, Hyderabad, against political corruption as illegal and arbitrary.

It so happened that when the writ petition was taken up for hearing on 30-9-1997, the petitioner is stated to have received proceedings of the Commissioner of Police, Hyderabad City, Hyderabad (for short ''the Commissioner'') dated 29-9-1997 rejecting his request for granting necessary permission. The petitioner accordingly filed necessary application for amendment of the prayer, as well as raising additional grounds. The Proceedings of the Commissioner dated 29-9-1997 are impugned in the writ petition on various grounds. It would be appropriate to refer to the impugned order, which reads as under :

"Whereas you have requested for permission for observing fast by Dr. Mohan Babu, Member of Parliament, Rajya Sabha, on 2nd October, 1997 from 6-30 a.m. to 8-30 p.m. at NTR Ghat, Tank Bund, Hyderabad.

Whereas the observance of fast by Dr. Mohan Babu, Member of Parliament, Rajya Sabha at the above place will attract large crowds and adversely affect maintenance of order at that public place.

Therefore in exercise of the powers vested in the under signed vide Section 22 clause (1)(d) of Hyderabad City Police Act, 1348 Fasli, your request, after careful consideration, is hereby rejected for the preservation of order."

The impugned order is attacked by the petitioner on various grounds. It is submitted by the learned counsel for the petitioner, Sri K. Ashok Reddy that the impugned order is not only an arbitrary one, but ultra vires the provisions of the Hyderabad City Police Act, 1348 Fasli (for short ''the Act'') and it suffers from non-application of mind. The impugned order, according to the petitioner, is passed by taking irrelevant material into consideration. It is also submitted that the impugned action of the respondents is violative of the fundamental rights guaranteed under Article 19(1)(a) & (b) of the Constitution of India.

The Commissioner of Police, Hyderabad City, Hyderabad, filed a detailed counter-affidavit, inter alia, stating that "if Sri Mohan Babu, Member of Parliament, undertakes fast at that place large number of people gather and the place is likely to be misused and its sanctity would be effected, the permission sought for by Sri Mohan Rao, is rejected." The Commissioner also placed reliance upon Govt. Memo. No. 12531 L & O-1/96-1, General Admn. (L & O-1) Department, dated 27-7-1996 issued by the Government of Andhra Pradesh, containing instructions to the effect that "it is desired that the area in front of the NTR Samadhi and the proposed NTR Gardens should not be used for protests/demonstrations/hunger strikes/dharnas as the sanctity of the place should be very carefully maintained. Any body who wants to observe a hunger strike or dharna has to take prior permission under the Police Act from the Commissioner of Police and the Director General and Inspector General of Police is requested that no permission is given." Pursuant to these directions, the Director General and Inspector General of Police issued instructions dated 28-7-1996 requesting the Commissioner of Police, Hyderabad to see that the sanctity of the place is carefully maintained and also ensure that no such permissions for any protests/demonstrations hunger strikes/dharnas are given to any body as desired by the Government''. It is the case of the Commissioner that all the relevant factors including the instructions of the Government and the Director General of Police were taken into consideration and upon such careful consideration a decision was taken to reject the application of the petitioner.

It is very much relevant to notice that the Notification No. L&O/M4/37/971, dated 26-9-1997 by the Commissioner of Police promulgating prohibitory orders in exercise of the powers vested in him u/s 22(1), (1)(d) to (f) and 22(2)(d), (3) and (4) of the Act, inter alia prohibiting any kind of public meetings, Dharnas, Demonstrations and/or processions within the twin cities of Hyderabad and Secunderabad without obtaining prior permission of Zonal Dy. Commissioners of Police, Law and Order concerned or Joint Commissioner of Police (Co-ordination), Hyderabad or Commissioner of Police, Hyderabad. The said order was to be in force with effect from 28-9-1997 to 4-10-1997. Even according to the learned counsel for the petitioner, the petitioner has to seek permission from the Commissioner in view of the notifications issued by the Commissioner from time to time prohibiting any kind of public meetings/Dharnas/Demonstrations etc.

Whether the impugned order is ultra vires the provisions of the Hyderabad City Police Act, 1348 Fasli ?

The Commissioner is stated to have passed the impugned order in purported exercise of the power vested in him u/s 22 clause 1(d) of the Act. Section 22(1) of the Act authorises the Commissioner to give such orders from time to time in the following matters, either oral or in writing, as may be necessary :

(a) to (c) X X X

(d) maintain order in streets, public places and all other places where public throng.

However, such orders shall not be inconsistent with any Rule made u/s 21. Section 21 relates to the power of the Commissioner to make Rules not inconsistent with the Act subject to the control of the Government in respect of the matters enumerated therein and, particularly relating to regulation of traffic of all kinds, in public street or public places, and regulating the use of streets and public places by persons walking, driving, cycling or accompanying or leading cattle with a view to prevent danger, inconvenience or obstruction to the public. It is required to notice that the notification dated 26-9-1997 issued by the Commissioner prohibiting to hold any kind of public meetings etc., is traceable to the power conferred upon him by sub-sections (3) and (4) of Section 22 of the Act.

It is, thus, clear that the Commissioner has the power and the duty to maintain order in streets, public places and all other places where public throng. He is also authorised by law to issue notifications prohibiting other kind of assemblies or processions for such time as it appears to him as necessary and for proper preservations of peace and public safety. Therefore, the petitioner rightly sought permission from the Commissioner in view of the notification issued by the Commissioner prohibiting any kind of assembly or procession by notification dated 26-9-1997. The Commissioner is undoubtedly authorised to take appropriate decision and consider the request of any person or persons seeking permission to hold assembly or procession etc., as the case may be.

A combined reading of Sections 21 and 22 of the Act would undoubtedly show that the Commissioner is invested with the power either to grant or refuse permission to hold any meeting, procession, Dharna etc., as the case may be. The Commissioner is bound to take into consideration the fact relating to maintaining order in streets, public places and all other place where public throng in disposing of the application filed by the citizens concerned and it would be a relevant consideration.

The Commissioner in the instant case, came to the conclusion that observance of fast by the petitioner herein at NTR Ghat will attract large crowds and adversely affect the maintenance of order at that public place. It is difficult to appreciate the submission made by the learned counsel for die petitioner and hold that the impugned order is ultra vires the provisions of the Act. The provisions herein referred to above undoubtedly clothe the Commissioner with the power to take an appropriate decision and such decision was taken by the Commissioner. I am of the considered opinion that the order is not ultra vires.

Yet, the question remains is whether the Commissioner has taken any irrelevant material into consideration before deciding the application of the petitioner.

The report of the Dy. Commissioner of Police, S.B. City, Hyderabad, would disclose that on the oral instructions of the Commissioner dated 25-9-1997, the matter has been inquired into by him. It further states that the petitioner has gone into Public saying that he would launch an agitation against corruption On 2-10-1997 and being a popular Cinema act or his pronouncements are taken seriously by the public and large crowds of Mohan Babu''s Fans Association and Public are likely to throng the NTR Ghat and spoil its sanctity which is supposed to be maintained by the Commissioner vide Memo. No. 1253/L&O-I/96-1, GA(L&O-I) Department, dated 27-7-1996. In such view of the matter, the Commissioner was requested to reject the application of the petitioner.

Yet another report was received from the Deputy Commissioner of Police, West Zone, Hyderabad. The said report more or less confirms the report of the Special Branch and it is further observed in the said report that "in view of the anticipated public disturbance and also the prevailing Government instructions with regard to the usage of the NTR Ghat and the surrounding, ......... permission sought by ..... to undertake fast at the NTR Ghat on 2nd October, may kindly be refused."

Record would show that this material was made available to the Commissioner and obviously such material has been taken into consideration. Can it be said that the said material made available on record is not relevant for the purpose of deciding the issue by the Commissioner ? I am of the considered opinion that it cannot be said so. The police have its own methods and ways to gather information and it may not be possible to compel them to disclose the method of gathering information as there are no judicially manageable standards to decide as to how and in what manner the information required is to be gathered by the Police. In their perception, the Police, in the instant case, thought that any order granting permission to the petitioner to observe fast at NTR Ghat on 2-10-1997 would lead to unpleasant consequences, such as adversely affecting maintenance of the order at that particular place. The Commissioner obviously had also taken into consideration the Memo issued by the Government dated 27-7-1996 as well as the Director General dated 28-7-1996 prohibiting public meetings, dharnas, demonstrations, etc. at NTR Ghat with a view to protect the sanctity and serene atmosphere. Admittedly, it is public place reserved for a particular purpose. It is not a place reserved for holding public meeting, Dharna, hunger strike etc. Assemblage of people for the purpose of paying homage to late Sri N. T. Rama Rao is a different thing altogether. It is not as if the Government has issued such a Memorandum only with a view to prevent the petitioner from observing fast/hunger strike as the case may be on 2nd October, 1997. The Government Memorandum dates back to July, 1996. A policy decision was taken by the Government to preserve the place free from public meetings, Demonstrations, Dharnas at NTR Ghat with a view to protect its sanctity. It does not suffer from any infirmity. It is not as if the public meetings, Dharnas and Demonstrations are altogether are banned in the twin cities of Hyderabad and Secunderabad. The Government thought it fit to ban holding of such meetings at that particular place with that object and motive. It is one of the relevant circumstances and material on record that were rightly taken into consideration by the Commissioner.

Whether the power conferred upon the Commissioner by the Act would amount to imposing unreasonable restriction on the rights of the citizens is a question, on which no opinion need be expressed in this writ petition, as the provisions of the Act are not challenged. It is not as if the Constitutional validity of the provisions authorising the Commissioner to prohibit holding meetings, Dharnas etc., are challenged in this writ petition.

For the aforesaid reasons, it is difficult to accept the submission made by the learned counsel for the petitioner attacking the impugned order is without application of mind or vitiated for the reason of irrelevant material creeping into the decision making process.

Whether there is likelihood of cropping of problems such as public order or causing disturbance to the normal public life is a matter of perception. The Court has no machinery whatsoever to take any view in the matter as to whether granting of permission to the petitioner herein would really result in such a situation. The Court in exercise of its jurisdiction under Article 226 of the Constitution of India does not exercise any appellate jurisdiction and evaluate the orders of the statutory authorities concerned by substituting its own opinion for that of the authorities. The Court is concerned only with the decision making process. For the reasons already recorded, it is difficult to hold that the decision making process in this regard is vitiated. In my considered view, the relevant material has been taken into consideration by the Commissioner and in his perception came to the conclusion that granting of permission to the petitioner to observe fast would have an adverse impact on the maintenance of public order. The Court cannot substitute its own opinion and come to a different conclusion.

Yet another aspect of the matter, urged by the learned counsel for the petitioner is that the decision of the Commissioner is vitiated as the same is passed under political influence. The allegation is denied by the respondents in the counter affidavit. I do not find any basis whatsoever for making such an allegation. Such a vague and indefinite allegation cannot form basis for adjudication of such serious issues. The contention is accordingly rejected.

Can it be said that the impugned order is violative of fundamental rights guaranteed by Article 19(1)(a) & (b) of the Constitution. Article 19(1)(a) guarantees every citizen a right to freedom of speech and expression and Article 19(1)(a) guarantees right to assemble peaceably and without arms. It is required to notice that these rights are not absolute, but subject to reasonable restrictions imposed and enumerated under sub-clauses (2) and (3) of Article 19. There is nothing like absolute fundamental right to freedom of speech and expression and to assemble peaceably and without arms. Fundamental right to freedom of speech and expression and to assemble peaceably without arms are guaranteed by the Constitution, imply the existence of organised society, maintenance of public order without which liberty itself would he lost. The State and the Government is part of an organised society which is entrusted with the Constitutional duty and obligations to maintain peace, tranquillity, law and order and public order. It is true that every citizen is free to use streets, public place, paths for communication of views on public issues. But such use can always be regulated in public interest. The privilege is not absolute, but relative and must be exercised in consonance with peace and good order. People who wish to propagandize protests or views do not have an absolute Constitutional right to do so "whether and however and wherever the please."

The Apex Court in Railway Board Representing The Union of India (UOI) Vs. Niranjan Singh, while considering the scope of Article 19(1)(a) & (b) observed (Paras 12 and 13) :

"There is no fundamental right for any one to hold meetings in Government premises. If it is otherwise there is bound to be chaos in our offices ........ The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations .... does not mean that they can exercise those freedoms in whatever place they please. The exercise of these freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights."

In Himat Lal K. Shah Vs. Commissioner of Police, Ahmedabad and Another, the Constitution Bench speaking through Justice S. M. Sikri observed (Para 41) :

"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 Article 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."

It is further observed (Para 31) :

"It seems to us that it follows from the above discussion that in India a citizen had, before the Constitution, a right to hold meeting on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. Therefore, we are unable to hold that the impugned rules are ultra vires S. 33(1) of the Bombay Police Act insofar as they require prior permission for holding meetings."

It is thus clear that no citizen has any fundamental right to insist that he is entitled to observe hunger strike/Dharna/fast as the case may be in a chosen place. It is true, the restriction to be imposed by the State is required to be reasonable. The question is whether the restriction imposed in a given case is reasonable or not would depend upon variety of factors and circumstances. The Government''s decision to preserve property in its control for the use to which it is lawfully intended cannot he said to be an illegal or ultra vires decision. An individual''s fundamental right to free speech and assemblage has to co-exist with maintenance of peace and public order.

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. (Terminiello v. Chicago (1948) 337 US 1.

For all the aforesaid reasons, I am unable to persuade to agree with the submissions made by the learned counsel for the petitioner to hold that the impugned orders suffers from legal infirmities. On the other hand, the impugned order, in my considered opinion, does not suffer from any infirmity whatsoever.

To pointed query from the Court, the learned counsel for the petitioner stated that the petitioner is not willing to observe the fast/hunger strike as the case may be at any other place on 2nd October, 1997, and submitted that the petitioner is particular to observe the fast at NTR Ghat itself. In such view of the matter, no direction could be given to the respondents to consider the petitioner''s application and permit him to observe hunger strike/fast on 2nd October, 1997 at any other public place in twin cities of Hyderabad and Secunderabad.

For all the aforesaid reasons, I do not find any merit in the writ petition and the same is accordingly dismissed. No costs.

Petition dismissed.