SC Issues Notice To Centre On Plea Challenging Delhi Police’s Blanket Ban On Right To Protest U/S 144, CrPC [Read Petition]

The Supreme Court bench of Justice AK Sikri and Justice Ashok Bhushan on Monday admitted and issued notice to the Centre and the Commissioner of Police of Delhi on a writ petition filed by the NGO Mazdoor Kisan Shakti Sangathan challenging the arbitrary and repeated imposition of police orders under section 144, CrPC by which, virtually, the entire Central Delhi area is declared a prohibited area for holding any public meeting, dharna or peaceful protest. The petition avers that the ban so imposed is violative of Article 19(1)(b) of the Constitution in so much as it curtails the fundamental right to peaceful assembly.

Advocate Prashant Bhushan, appearing on behalf of the petitioner, submitted, “After the Mahendra Singh Tikait agitation, protests at Boat Club lawns were restricted. In fact, the unrestricted right to protest was severely curtailed and the entire Central Delhi area which is close to the establishment offices has been turned into a fortress and the fundamental rights of the citizens completely denied. From 1993 till recently, the only place where the protests were allowed was Jantar Mantar. However, on 5th October 2017, the National Green Tribunal has entirely banned protests at Jantar Mantar on the grounds that it creates a nuisance for the residents of the area and violates environment protection statutes.”

In contending that such prohibitions are in contravention of the fundamental rights of citizens under clauses (a), (b) and (c) of Article 19(1), the judgment in Anita Thakur and Ors vs Government of J&K and Ors [(2016) 15 SCC 525] was cited, in so far as it was ruled thereunder, “Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the Petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the Petitioners could take out peaceful march.”

It was further contended that Section 144 finds place in the Criminal Procedure Code under the Section which is headed “urgent cases of nuisance or apprehended danger” and that the order under Section 144 rests upon “immediate prevention and speedy remedy”. The judgment of the apex court in Ramlila Maidan Incident vs Home Secretary, Union of India and Ors. [(2012) 5 SCC 1] was relied upon in so far as it is held therein, “The preventive steps under section 144, CrPC should be founded on actual and prominent threat endangering public order and tranquility, as it may disturb the social order. This delegate power vested in the State has to be exercised with great caution and free from arbitrariness”.

It was further argued that though sub-section (2) of Section 144 permits orders under the section to be imposed ex-parte in events of urgency, the impugned orders of the Delhi Police reading, “as the notice cannot be served individually on all concerned, the order is hereby passed ‘Ex-Parte’” for the reason that any protests in the said area “are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility” cannot be said to satisfy the requirements of the said sub-section.

Finally, it was submitted that by virtue of sub-section (4) of Section 144, the injunction granted thereunder cannot be renewed repeatedly and extended for indefinite periods of time. The judgment in Acharya Jagdishwaranand Avadhuta and Ors vs Commissioner of Police, Calcutta, and Anr [(1983) 4 SCC 522] was quoted- “The proviso to sub-section (4) of section 144 which gives the state government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order Under Section 144 of the Code to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders”.

The provisions of the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966, Convention on Rights of the Child, 1990, which are binding on India, and recognise the right to the freedom of peaceful assembly were also cited. Several landmark cases in the United States and England having upheld the constitutional right to freedom of peaceful assembly were referred.

The petition prays for the quashing of the successive orders under section 144 of the Delhi Police for the months of January, March, May, July, September and October. The petitioner has also requested the top court to frame guidelines for the conduct of peaceful dharnas, demonstrations etc. Further, the blanket ban on peaceful assemblies in New Delhi as well as the repeated promulgation of such prohibitory orders under section 144 is sought to be declared illegal.

The matter is next listed for further hearing on January 5, 2018.