IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 5000/2010
BANO BEE Petitioner through Mr. Prashant Bhushan and Mr. Pranav Sachdeva, Advs.
versus
UOI
AND ANR ..... Respondent Through Mr.
A.S. Chandhiok, ASG with Ms. Jasbir Kaur, Ms. Snigdha Sharma and Ms.
Harleen Kaur, Advs. for UOI.
Mr.
Najmi Waziri, Standing Counsel with Mr. Shoaib Haider, Adv.for R-2.
CORAM:
HON'BLE
THE CHIEF JUSTICE
HON'BLE
MR. JUSTICE SANJIV KHANNA
O R D E R: 31.05.2011
1 Heard
Mr. Prashant Bhushan, learned counsel for the petitioner, Mr. A.S. Chandhiok,
learned Additional Solicitor General for Union of India and Mr. Najmi
Waziri, learned counsel for the respondent No.2.
2 By
this writ petition, the petitioner as pro bono publico has basically
prayed for the following reliefs:-
(b Issue a
writ of mandamus or any other direction to the Respondents to lay down the
guidelines for holding public meeting, dharna, peaceful demonstration etc.
in various part of New Delhi
(c) Declare
that imposing of blanket ban on all assemblies in Central Delhi/New Delhi
area is illegal.
(d) Declare that
repeated promulgation of prohibitory orders under Section 144 of Code of
Criminal Procedure as illegal.
3 This
Court on 2nd August, 2010 had passed the following order:-
In this public interest litigation, the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India has called in question the legal substantiality and tenability of the order dated 6th July, 2010 passed by the Deputy Commissioner of Police whereby he has, in exercise of powers conferred on him under Section 144 of the Criminal Procedure Code, 1973 (for short the Code’) read with Notification No. 11036/1/08-UTL dated 31.10.2008 issued by the Government of India, Ministry of Home Affairs, New Delhi passed an order prohibiting certain activities.
2. It is
urged in the petition that the Delhi Police has been issuing such prohibitory orders
from time to
time as a
result of which
the fundamental right to assemble peacefully under Article 19(1)(b) of
the Constitution which includes holding peaceful dharna, demonstration, etc. has
been destroyed. It is contended
that the impugned
order does not indicate any
criteria for granting or refusing permission. It is completely
left to the
discretion of Delhi Police
as a consequence
of which the permission
to hold dharna, public meetings
in the entire prohibited area
which is the
centre of power and best suited for political dharna is
denied.
3. It is
averred that the petitioner is one of the members of ‘Bhopal Gas Pidit Mahila
Stationary Karamchari Sangh’ who had come along with other activists to Delhi to
raise a protest because of the failure of the Government of India to set up an
empowered commission to look into the problems of the victims of toxic gases
leak from the plant of Union Carbide in 1984, but the same has
become unfruitful because
of the order passed
by the Deputy Commissioner of Police. Reference has been made to Section 144 to
show that in total
violation of the
said provision, the Delhi
Police have been issuing orders under Section 144,
Cr.PC in a routine manner without there
being any emergent situation. It is
the case of
the petitioner that
the said orders create
unreasonable restriction which affects the fundamental right of the petitioner.
It is urged that the prohibitory orders are in total violation of Article
19(1)(a) and (b) and the same have been issued without any basis and thereby tantamounts
to abuse of the process
of the mandate contained in Section 144 of Cr.PC.
4. We have
heard Mr. Prashant Bhushan, learned
counsel for the petitioner and Ms. Jasbir Kaur, learned counsel for respondent
No.1and Mr.N. Waziri learned counsel for respondent No.2 on the question of
admission. It is submitted by Mr. Bhushan that the orders have been passed one
after the other in a routine manner without the authority addressing to
the emergent nature
and taking recourse
to power conferred on
it under Section 144 Cr.PC which
is impermissible. It is propounded by
him that the prohibitions that have been stipulated in the order are violative of fundamental rights
and the right
to protest is totally
extinguished. To buttress the submission, he has placed reliance on the
decision in Himmat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973) 1
SCC 227.
5.
Ordinarily we would
have dealt with the law
laid down in Himmat Lal K. Shah Case (supra) and another decision
rendered in Babulal Parate v. The State of Maharashtra
“.….The
other aspect, viz., the propriety
of repetitive prohibitory orders
is, however, to our mind
a serious matter and since long
arguments have been advanced, we propose to deal
with it. In
this case as
a fact from October 1979
till 1982 at the
interval of almost
two months orders
under Section 144(1) of
the Code have been
made from time to time. It is not disputed before us that
the power conferred under this
section is intended for
immediate prevention of
breach of peace
or speedy remedy. An
order made under
this section is
to remain valid for two months
from the date
of its making as provided in sub-section (4) of Section
144. The proviso to sub-section (4) authorises the State Government in case it
considers it necessary so to do for preventing danger to human life,
health or safety,
or for preventing
a riot or any affray, to direct by notification that
an order made by a Magistrate may remain in force for a further period not
exceeding six months
from the date
on which the
order made by the Magistrate would have, but for such order,
expired. The effect
of the proviso,
therefore, is that
the State Government would
be entitled to
give the prohibitory order
an additional term
of life but
that would be limited
to six months
beyond the two
months’ period in terms
of sub-section (4)
of Section 144
of the Code. Several
decisions of different
High Courts have rightly
taken the view
that it is
not legitimate to
go on
making
successive orders after
earlier orders have lapsed
by efflux of
time. A Full
Bench consisting of the
entire Court of
12 Judges in
Gopi Mohun Mullick
v. Taramoni Chowdhrani examining
the provisions of Section
518 of the
Code of 1861
(corresponding to present Section
144) took the
view that such
an action was beyond
the Magistrate’s powers.
Making of successive orders was
disapproved by the Division Bench of the Calcutta Orissa Varanasi
“Public order has to be maintained in advance in
order to ensure it and, therefore, it is competent to a legislature to pass a
law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions
upon particular kinds of acts in an emergency for the purpose of maintaining
public order....”
It was again emphasized (at p.891 of AIR):
“But it
is difficult to
say that an
anticipatory action taken by such an authority in an emergency where
danger to public order is genuinely
apprehended is anything other than an action done in the discharge of the duty
to maintain order....”
This
Court had, therefore,
appropriately stressed upon the feature that the provision of
Section 144 of the Code was
intended to meet
an emergency. This
postulates a situation temporary
in character and, therefore, the duration of an order under Section 144 of
the Code could never have been
intended to be
semi-permanent in character.”
6. In
view of the aforesaid enunciation of law and keeping in view the
nature of assertions made in the writ petition, we
are inclined to issue notice on the question of admission and disposal.
7. Issue
notice.
8. As Ms.
Jasbir and Mr. Waziri have entered appearance, no requisites need be
filed. Counter affidavits be filed
within two weeks. Rejoinder, if any, be
filed within a week thereafter.
9. Matter
be listed on 25th August, 2010.
4 Thereafter,
a counter affidavit has been filed and the matter was debated on certain
occasions. Today an affidavit has been filed by the second respondent. In
paragraph 1 of the affidavit, it has been stated as follows:-
1. That
continuous Prohibition under Section 144 Cr. P. C. 1973 (2 of 1974) under
the jurisdiction of New Delhi District declaring certain areas as Prohibited
area for holding any public meeting, dharna, peaceful protest etc. has
been discontinued. The said provision of law would be invoked as and
when warranted because of an emergent situation.
5 In
view of the aforesaid, we are of the considered opinion that nothing remains to
be adjudicated in the writ petition. However, we observe that the
respondent No.2 shall always be guided by the law of the land while taking
recourse to Section 144 of the Code of Criminal Procedure.
6 The writ petition is accordingly disposed of.
CHIEF JUSTICE
SANJIV KHANNA, J.
MAY 31, 2011
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