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Judgment
J. Chelameswar, J.—This Writ Petition is filed by an unregistered body known as ''Madiga Reservation Porata Samithi'' with a prayer as follows :
"............that this Hon''ble Court may be pleased to issue an order or direction or writ more particularly one in the nature of writ of certiorari calling for the records pertaining to the impugned order of the respondent passed in proceedings No. L&O/M4/1786/99, dt. 10-4-99 and quash the same as illegal, arbitrary, unconstitutional and violative of principles of natural justice and pass such other order or orders as this Hon''ble Court deems fit and proper in the interest of justice."
The brief background of the case is that there has been a demand from a section of the Scheduled Castes in the State of Andhra Pradesh known as ''Madigas'' that they are entitled for certain protective discrimination in the matter of educational opportunities and public employment. The State of Andhra Pradesh, earlier, having considered the intensity of the demand, appointed a Commission headed by a former Judge of this Court to go into the matter and make appropriate recommendations in this matter. I am informed by the learned Advocate-General who appeared at the stage of admission for the State, that the said Commission made certain recommendations which are favourable to the ''Madiga'' community. In pursuance of the said recommendations, the State of Andhra Pradesh issued certain orders creating avenues of reservation in the matters of educational opportunities and public employment; however, the said orders of the Government came under challenge and this Court by its judgment dated 18-9-1996, declared those G.Os., as illegal and unconstitutional (the details of which are not necessary for the purpose of the present case). It appears, subsequently, the State of Andhra Pradesh, having regard to the factual and legal issues involved, came to a conclusion that an Ordinance be promulgated to cover the situation and to remove the basis of the declaration made by this Court in the above-mentioned judgment dated 18-9-1996; however, it appears, the Governor of Andhra Pradesh was pleased to refer the matter to the President of India for his consideration under Article 213 of the Constitution of India.
In this background, the petitioner body which has been agitating for the rights of the ''Madiga'' community, decided to have a ''huge congregation'' at Hyderabad City, in order to make a demonstration demanding the creation of protective discrimination in favour of the ''Madiga'' community. For the said purpose, the petitioner made an application dated 26-3-1999 to the Commissioner of Police -- the respondent herein, seeking the permission of the Commissioner of Police in this regard. The application reads as follows :
"We humbly request you that the M.R.P.S. have been demanding to the Hon''ble Chief Minister from 41/2 years to issue the legalised S.C. Categorisation G.O. enable to get all the benefits of the constitutional rights as per the population ratio among the S.Cs. On 29-10-98 the C.M. have sent a S.C. Categorisation Ordinance proposals to the Central Government for the approval of Hon''ble President of India. But after lapse of three months there was no action against the ordinance nor it reached the Rashtrapathi.
To solve the problem to bring the pressure on the C.M., the M.R.P.S. State President Sri Manda Krishna Madiga announced to blockade the Hyderabad on 14th April with forty lakhs people if the Hon''ble Chief Minister failed to legalise the above ordinance on or before 14-4-99. Accordingly a programme started Madiga Dandora Dandayathra from Srikakulam to Hyderabad on 26-1-99 to 13-4-99 by covering all the Mandals to educate the people to make the programme a grand success on 14th April.
So, kindly give us permission to take out the procession after public meeting with more than 50,000 people from the Baghlingampally to Dr. B.R. Ambedkar Statue on 14th April by 10.00 A.M. via Narayanaguda, Old M.L.A. Quarters, Basheerbagh, ''X'' Roads, Babu Jagjeevan Ram Statue with most discipline and very peacefully and permitted to Mic (sic) facilities to pass message and drinking water points.
Thanking you, Sir,"
The said application was rejected by the Commissioner of Police, by his order dated 10-4-1999. The order insofar as it is relevant for the purpose of the present case, reads as follows:
"Your request for holding a public meeting at Baghlingampally for a Procession from Baghlingampally to Dr. B.R. Ambedkar Statue (via) Narayanaguda, Old MLA Qrs., Basheerbagh, X. roads, BJR statue on April 14, 1999 in connection with your announced programme of blockading of Hyderabad with 40 lakhs people has been duly considered and rejected from the point of view of public order."
In view of the fact that the proposed procession is scheduled to be held on 14-4-1999, which happens to be the ''Birthday of Dr. B.R. Ambedkar'' and if the legality or otherwise of the impugned order is not decided immediately, it is urged by the learned counsel for the petitioner, that the Writ Petition, would become infructuous. Arguments were heard at length on behalf of the petitioner-Organisation as well as the respondent who is represented by the learned Advocate-General.
The learned counsel for the petitioner submitted that the application clearly indicated that the procession and meeting is likely to consist of more than 50,000 people. It is pertinent to mention here, that even according to the assessment of the State the congregation is likely to be around 3 lakhs of people. The relevant files were placed before this Court, from where this fact is culled out. The learned counsel for the petitioner submitted that the representation clearly indicates that the procession and meeting would be conducted with utmost discipline in a peaceful manner. The learned counsel, therefore, argued that the right to assemble peacefully is Constitutionally protected right under Article 19(1)(b) of the Constitution of India and also the right to freedom of speech and expression as well as the right to freely move throughout the territory of India are Constitutionally guaranteed rights. In the circumstances, the rejection of the application of the petitioner-Organisation is in violation of constitutionally guaranteed rights of the citizens of India.
No doubt, both in the application as well as some other material whereunder a call was given by the petitioner-Organisation, it was indicated that the congregation is likely to be in the order of 4 million people. It is perhaps an over-enthusiastic statement or a little hyperbole. The learned counsel, therefore, submitted that the respondent is absolutely not justified in refusing the permission by way of the present impugned order.
On the other hand, the learned Advocate-General submitted that in view of the provisions of Section 22 (3) of the Hyderabad City Police Act, 1348-F, the Commissioner of Police is entitled to pass prohibitory orders, if it appears to him to be necessary and proper for the preservation of peace and public safety. The relevant provision reads as follows :
"(3) Powers to prohibit assembly and procession :--The (Commissioner of City Police, Hyderabad) may, at any time by order in writing prohibit every kind of assembly or procession for such time as may appear to him to be necessary and proper for preservation of peace and public safety; but no such prohibitory order shall remain in force for a period exceeding one week without the sanction of the Government."
The learned Advocate-General submitted that in exercise of the said power, the respondent- Commissioner of Police issued an order dated 10-4-1999 u/s 22(3)of the Hyderabad City Police Act, 1348-F (a copy of the order is placed before this Court) prohibiting every kind of procession, Dharna, Rally and public meeting in certain areas of Hyderabad City as indicated in the said order; therefore, the application of the petitioner-Organisation could not be considered in view of the prohibitory orders.
The learned Advocate-General also submitted that the respondent is statutorily vested with the power and authority to make an assessment whether any such procession or meeting is likely to disturb the peace and public safety and the opinion of the respondent could not be lightly interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, as this Court would not have the necessary information nor material to make such an assessment in that regard independently.
The right to take out a procession even on the public streets is a constitutionally recognised right in the country. The Apex Court in Himat Lal K. Shah Vs. Commissioner of Police, Ahmedabad and Another, , categorically scrutinised that in this country there is a constitutionally protected right to take out a peaceful procession in a public street.
"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 meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to consideration of public order.................................
This takes us to points (2) and (3) mentioned above. It is not surprising that the Constitution-makers conferred a fundamental right on all citizens ''to assemble peaceably and without arms''. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Article 19(3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in Railway Board Representing The Union of India (UOI) Vs. Niranjan Singh, , that there is no fundamental right for any one to hold meetings in Government premises. It was observed :
"The fact that the citizens 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".
This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.
This Court in Babulal Parate Vs. State of Maharashtra and Others, , rightly observed :
"The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India."
If the right to hold public meetings flows from Article 19(1)(b) and Article 19(1)(d) it is obvious that the State cannot impose unreasonable restrictions. It must be kept in mind that Article 19(1)(b), read with Article 13, protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property."
No doubt, every right guaranteed under the various fundamental rights under the Constitution is subject to reasonable restrictions that may be imposed by the State in the larger interests of the Society.
In exercise of the powers seeking to impose restrictions over the fundamental rights of the petitioner, various laws are made and as far as the preservation of the public order is concerned, the provisions under Sections 22 to 24 of the Hyderabad City Police Act, 1348-F, deal with such a situation. These provisions vest the Commissioner of Police, Hyderabad with a great amount of discretion for giving directions or orders in the matters of procession and assemblies. In fact, Section 22 of the Hyderabad City Police Act, 1348-F, contemplates various kinds of instructions or orders that could be given by the Commissioner of Police whenever somebody seeks to take out a procession including prohibitory orders.
Section 22 of the Hyderabad City Police Act, 1348-F, reads as follows :
"22. Powers of Police Commissioner and other Police Officer to give directions to the public:-- (1) The (Commissioner of City Police, Hyderabad) and subject to orders of the (Commissioner of Police, Hyderabad) every Police Officer not below the rank of an Inspector may, from time to time, as occasion may require, give such orders for the following matters either orally or in writing as may be necessary; but such orders shall not be inconsistent with any rule made u/s 21.
(a) the mode of passing, conduct and behaviour or acts of the processions, or assemblies passing in the streets;
(b) prescribe the routes by which and the time at which such processions may or may not pass;
(c) prevent obstruction on the occasions of processions and assemblies and in the neighbourhood of any place of worship during the time of public worship and in every case when any street or public place or any place of public resort may be thronged or is likely to be obstructed;
(d) maintain order in streets, public places and all other places where public throng;
(e) regulate the music or singing in any street or public place and the beating of kettle-drum, tom-toms, band, drum and the blowing of horns or other like instruments in or near any street or public place;
(f) on the written application of any person to the (Commissioner of City Police, Hyderabad) if the (Commissioner of City Police, Hyderabad) is satisfied that music, singing or the noise of the aforesaid instruments is causing inconvenience to any person residing in the neighbourhood on account of his serious illness or to the lawful profession by persons residing in the neighbourhood, the prohibition of its continuance :
Provided that when any music or singing is so stopped, the person aggrieved by the prohibitory order may file an application against such order to the Chief City Magistrate and if the said Magistrate is satisfied that in view of the conditions the said order is not based on reasonable grounds, he may alter or cancel such order and the (Commissioner of City Police, Hyderabad) shall carry out the order made by the City Criminal Court.
(2) Powers to issue orders for prevention of disorder :-- (1) The (Commissioner of City Police, Hyderabad) may, whenever and for such time, as he considers necessary for the preservation of the public peace and public safety, by notification, issue an order to the public or to particular individuals prohibiting the following matters,--
(a) the carrying in any public place of swords, spears, bludgeons, guns, (knives) and other offensive weapons;
(b) the collection, carrying or preparation of stones or other means of casting missiles;
(2) the keeping or offering for exhibition of persons or of corpses or effigies or other figures in any public place.
(d) utterance of cries or singing in public;
(e) making a speech, gesture or mimetic, representation, exhibition or dissemination of pictures, symbols, playcards, or any other thing which is against morality and decency or which, in the opinion of the (Commissioner of City Police, Hyderabad) is likely to create religious animosity or hatred between different communities or individuals or is likely to bring about commission of an offence or disturbance of the public peace or induces resistance to or contempt of the law or of a lawful authority.
(3)..........................
(extracted earlier in this judgment)
(4) Power to reserve street or public place for any public purpose :-- The (Commissioner of City Police, Hyderabad) may also by Public notice temporarily reserve any street or public place for any public purpose and prohibit any person from entering the area so reserved unless he observes the conditions prescribed by the (Commissioner of City Police, Hyderabad)."
Apart from issuing various directions contemplated u/s 22 (1) and (2), under Sub-section 3, the Commissioner is also empowered to prohibit every kind of assembly or procession for the preservation of peace and public safety. Realising the importance of the right to take out processions and the right to assembly, the Legislature itself imposed a restriction on the power of the Commissioner by saying that in any case such an order shall not be in force for a period exceeding one week except by the sanction of the Government.
On a plain reading of the Section, it appears that the power of the Commissioner to take a decision in this regard is absolute, but it is too late in the day to argue that there are a class of administrative orders which are wholly beyond the scope of the judicial review. Every power vested in a public authority by law must be exercised bona fide, informed with reason and must be supported by material. The material should be such that any rational person who looks into the material in the normal course comes to the conclusion such as the one the authority reached.
The question is whether the assessment made by the Commissioner of Police -- the respondent herein, in issuing the prohibitory order dated 10-4-1999, is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India.
I am of the opinion that though the assessment of the respondent is entitled for the utmost weight, while deciding the legality of such an order, it cannot be said that such an assessment is beyond the scope of judicial scrutiny. The further question -- whether the assessment made by the respondent in issuing the prohibitory order dated 10-4-1999 and passing of the consequential order of rejection on the application of the petitioner-Organisation referred to above, is made on legal and rational basis.
The material available in this regard appears to be that on 3 occasions earlier, the petitioner-Organisation conducted similar processions and on each occasion, it resulted in a disturbance to free-flow of traffic in the Hyderabad City. Secondly, it is brought to my notice by the learned Advocate-General that on an earlier occasion such an event took place (on 7-6-1998; one Sri Manda Krishna Madiga, a leader of the petitioner-Organisation, undertook a fast) 258 criminal cases were registered against various members of the petitioner-Organisation.
To a pointed question whether any such procession consisting of about 3 lakhs of people, was ever permitted or took place in the City of Hyderabad, the learned Advocate-General fairly answered saying that earlier on several occasions, such processions did take place and permissions were accorded and such processions were organised by various political parties and some social and religious organisations like Ganesh Utsavam Committee of Hyderabad etc.
As a matter of fact such processions took place earlier and the State permitted such processions. The respondent could successfully supervise and regulate such processions and meetings without there being any disturbance to the public order, it is not open to the respondent to now say that the congregation of about 3 lakhs of people now would disturb the peace and public order. The strength of the congregation in the contextual facts would become irrelevant. Then there should be some other material to enable the respondent to come to the conclusion that permitting the congregation in question would result in the breach of peace and public order. No such material is brought to the notice of the Court. The possibility of there being a large scale disturbance of traffic as pointed out by the learned Advocate-General cannot be equated with the disturbance of peace and public order. At any rate such a thing happens whenever such large congregations are permitted and it is not the case of the respondent that no such congregation was ever permitted earlier or would not be permitted in future.
In the absence of any specific material that the intended procession of the petitioner-Organisation is likely to disturb peace and public safety, I am of the opinion that the Commissioner of Police is not justified in issuing the impugned order.
In the circumstances, I direct the Commissioner of Police -- the respondent herein to accord the necessary permission to the petitioner-Organisation to conduct a ''procession'' on 14-4-1999; however, it is made clear that the respondent is at liberty to impose any condition which he is authorised under the Hyderabad City Police Act, 1348-F, for the smooth conduct of such ''procession'' and to ensure the preservation of the public order.
Learned counsel appearing for the petitioner-Organisation made a categoric statement that the petitioner shall be bound by any conditions imposed either by the Commissioner of Police -- the respondent herein or by this Court. In this regard, it is relevant to mention that basing on certain information gathered by the agencies of the State, the learned Advocate-General apprehended that the congregation once assembled in the City of Hyderabad, may stay at Hyderabad City for a few days, in which case, it is likely to result in a large scale disorder in the City of Hyderabad. In view of the apprehension expressed by the learned Advocate-General, the respondent is at liberty to issue appropriate directions to the Organisers of the petitioner-Organisation to have the procession and meeting within definite hours to be stipulated by the Commissioner of Police -- the respondent herein and afterwards beyond the stipulated period if the congregation continues its activity would naturally become an unlawful activity.
With these directions, the writ petition is disposed of.