Supreme Court of India
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011versusHOME SECRETARY, UNION OF INDIA & ORS.
- Citation
- 2012 INSC 103
- Decided
- 23 February 2012
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
The Court held that the Section 144 order was unjustified and the police action was arbitrary and excessive, violating constitutional freedoms, and therefore directed disciplinary measures, criminal prosecutions and compensation.
Summary
The Supreme Court, hearing a suo motu writ petition, examined the midnight police raid on a sleeping crowd at Ramlila Maidan on 4-5 June 2011, where police used teargas, lathi charge and brick‑batting after revoking permission for a yoga camp and a fast led by Baba Ramdev. The Court found that the order under Section 144 of the CrPC was issued without material facts, reasonable notice or an emergent situation, and that the police acted with undue haste and excessive force, violating Articles 19 and 21 of the Constitution. It held that the State and police could have avoided the tragedy by exercising restraint and that the restriction on fundamental rights was unreasonable. The Court directed disciplinary action against erring police personnel, registration of criminal cases, and awarded ad‑hoc compensation to the deceased and injured, with 25% payable by the Trust. The petition was disposed with these directions.
Issues considered
- The validity and reasonableness of the prohibitory order issued under Section 144 CrPC.
- Whether the police action (teargas, lathi charge, brick‑batting) against a sleeping assembly violated fundamental rights under Articles 19(1)(a), 19(1)(b) and 21.
- The necessity of police permission for large public gatherings and the legality of revoking such permission.
- Whether the State and police acted in good faith or mala fide in imposing the restriction.
- The liability of the Trust and police for contributory negligence and the quantum of compensation.
Legislation cited
- Code of Criminal Procedure, 1973s. 134, s. 144, s. 188
- Constitution of Indias. Article 13, s. Article 19, s. Article 21, s. Article 38, s. Article 51A
- Delhi Police Act, 1978
- Indian Penal Code, 1860s. 149, s. 188
Subjects
Fundamental rightsFreedom of speechFreedom of assemblySection 144 CrPCPolice brutalityHuman rightsRight to sleepPrivacyReasonable restrictionContributory negligenceCompensationRamlila MaidanBaba RamdevPublic order
Judgment
[2012] 4 S.C.R. 971
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 A
v.
HOME SECRETARY, UNION OF INDIA & ORS.
(Suo Motu Writ Petition (Crl.) No. 122 of 2011)
FEBRUARY 23, 2012
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Code of Criminal Procedure, 1973- s.144 rlw s.134 and
the Delhi Police Standing Order 309 - Public agitation -
Police crackdown at midnight on members of sleeping c
congregation - Action against erring police officials -
Compensation to victims - Respondent no. 4- Trust had
obtained permission of the Deputy Commissioner of Police
for holding a yoga training camp between 1st June, 2011 to
20th June, 2011 at Ramlila Maidan, an enclosed public o
ground in Delhi - On 4th June, 2011, Yoga Guru Baba
Ramdev, who had been leading an Anti-corruption campaign,
commenced hunger strike/fast at the said camp to protest
against black money and corruption - Permission granted to
hold the said camp subsequently revoked and on the night E
of 4th/5th June, 2011 while Baba Ramdev and his followers
were sleeping in the Maidan, they were forcibly woken up in
purported exercise of the police powers conferred uls. 144
CrPC on the strength of a prohibitory order dated 4th June,
2011 passed by the Assistant Commissioner of Police -
F
Police resorted to use of teargas and lathi charge in order to
disperse the assembly as a result of which a number of men
and women were injured, some seriously and also finally
resulted into the death of one Smt. Rajbala - There was also
damage to property - Suo motu proceedings by Supreme
Court - Held: In the facts of the case, the State and the Police G
could have av_oided this tragic incident by exercising greater
restraint, patience and resilience- The orders were passed by
the authorities in undue haste and were executed with force
and overzealousness, as if an emergent situation existed -
971 H
972 SUPREME COURT REPORTS [2012] 4 S.C.R.
A The decision to forcibly evict the innocent public sleeping on
the Ramlila Maidan in the midnight of 4th/5th June, 2011,
whether taken by the police independently or in consultation
with the Ministry of Home Affairs was amiss and suffered from
element of arbitrariness and abuse of power to some extent
8 - The restriction imposed on the right to freedom of speech
and expression was unsupported by cogent reasons and
material facts - The action demonstrated the might of the
State and was an assault on the very basic democratic values
enshrined in the Indian Constitution - The police failed to
C establish that a situation had arisen where there was imminent
need to intervene - Disciplinary action directed to be taken
against erring police officers/personnel who indulged in brick-
batting, resorted to lathi charge and excessive use of tear gas
shells upon the crowd or did not help in transportation of sick
and injured people to the hospitals - Direction for registration
D of criminal cases against police personnel as also members
of the gathering at the Ramli/a Maidan (followers of Baba
Ramdev or otherwise) who indulged in damage to property -
Ad-hoc compensation of Rs.5 lacs to legal heirs of Smt.
Rajbala; Rs.50,0001- each to persons who suffered grievous
E injuries and were admitted to hospital and Rs. 25, 0001- each
to persons who suffered simple injuries and were taken to
hospital but discharged after a short while - However,
consequences of financial liability to pass, though to a limited
extent, upon respondent no.4-Trust as well - Respondent
F no.4 was guilty of contributory negligence - The Trust and its
representatives ought to have discharged their legal and
moral duty and should have fully cooperated in the effective
implementation of the order passed u/s. 144 CrPC - Due to
the stature that Baba Ramdev enjoyed with his followers, it was
G expected of him to request the gathering to disperse
peacefully and leave the Ramlila Maidan - Accordingly, in
cases of death and grievous hurt, 25% of the awarded
compensation to be paid by the Trust - Constitution of India,
1950 - Articles 19(1)(a), 19(1)(b), 19(2) and 19(3).
H
IN RE: RAMLILAMAIDAN INCIDENTDT.4/5.06.2011 v. HOME 973
SECRETARY, UNION OF INDIA
Human Rights - Right to sleep - Public agitation - Police A
crackdown at midnight on members of sleeping congregation
- Suo motu proceedings by Supreme Court - Held (per Dr.
B. S. Chauhan, J.): Sleep is a fundamental and basic
requirement without which the existence of life itself would be
in peril - To disturb sleep would amount to torture which is B
now accepted as a violation of human right - A sleeping
crowd cannot be included within the bracket of an unlawful
category unless there is sufficient material to brand it as such.
Respondent no.4-Bharat Swabhiman Trust, Delhi
Area had obtained permission of the Deputy C
Commissioner of Police for holding a yoga training camp
between 1st June, 2011 to 20th June, 2011 at Ramlila
Maidan, an enclosed public ground in Delhi. On 4th June,
2011, Yoga Guru Baba Ramdev, who had been leading
an Anti-corruption campaign, commenced hunger strike/ D
fast at the said camp to protest against black money and
corruption. The permission granted to hold the said
camp was subsequently revoked and on the night of 4th/
5th June, 2011 while Baba Ramdev and his followers
were sleeping in the Maidan under tents and canopies, E
they were forcibly woken up in purported exercise of the
police powers conferred under Section 144 CrPC on the
strength of a prohibitory order dated 4th June, 2011
passed by the Assistant Commissioner of Police. The
Police thereafter resorted to use of teargas and lathi F
charge in order to disperse the assembly which had, by
that time, been declared unlawful. As a result of this
action by the Police, a number of men and women were
injured, some seriously. This also finally resulted into the
death of one Smt. Rajbala. There was also damage to G
property. The said police action was termed as brutal and
uncalled for by the Press.
Taking suo motu cognizance of the said Ramlila
Maidan incident dated 4th/ 5th June, 2011, the Supreme
Court examined issues pertaining to liberty and freedom, H
974 SUPREME COURT REPORTS [2012] 4 S.C.R.
A guaranteed to Indian citizens as fundamental rights
under the Constitution and the possible lawful
restrictions than can be imposed for curtailing such
rights; as also the dimensions of legal provisions in
relation to the exercise of jurisdiction by the empowered
B officer in passing an order under Section 144 CrPC.
Disposing of the suo motu writ petition, the Court
HELD:
c Per Swatanter Kumar, J.
1.1. Rights, restrictions and duties co -exist. As, on
the one hand, it is necessary to maintain and preserve
the freedom of speech and expression in a democracy,
there, on the other, it is also necessary to place reins on
0 this freedom for the maintenance of social order. The
term 'social order' has a very wide ambit. It includes 'law
and order', 'public order' as well as 'the security of the
State'. [Para 30) [1014-A, BJ
E 1.2. 'Security of the State' is paramount and the State
can impose restrictions upon the freedom, which may
comparatively· be more stringent than those imposed in
relation to maintenance of 'public order' and 'law and
order'. However stringent may these restrictions be, they
F must stand the test of 'reasonability'. The State would
have to satisfy the Court that the imposition of such
restrictions is not only in the interest of the security of
the State but is also within the framework of Articles 19(2)
and 19(3) of the Constitution. It is keeping this distinction
G in mind, the Legislature, under Section 144 Cr.P.C., has
empowered the District Magistrate, Sub-Divisional
Magistrate or any other Executive Magistrate, specially
empowered in this behalf, to direct any person to abstain
from doing a certain act or to take action as directed,
H where sufficient ground for proceeding under this
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 975
SECRETARY, UNION OF INDIA
Section exists and immediate prevention and/or speedy A
remedy is desirable. [Paras 35, 36] [1017-D-G]
Babula/ Parate v. State of Maharashtra (1961) 3 SCR
423; State of West Bengal v. Subodh Gopal Bose AIR 1954
SC 92: 1954 SCR 587; B
Maneka Gandhi v. UOI AIR 1978 SC 597: 1978 (2) SCR
621; Madhav Hayawadanrao Hoskot v. State of Maharashtra
(1978) 3 SCC 544: 1979 (1) SCR 192; S. Rangarajan v.
Jagjivan Ram (1989) 2 SCC 574: 1989 (2) SCR 204; State
of Madras v. V.G. Row AIR 1952 SC 196: 1952 SCR 597; C
Chintamanrao & Anr. v. State of Madhya Pradesh AIR 1951
SC 118: 1950 SCR 759; State of Gujarat v. Mirzapur Moti
Kureshi Kassab Jamat and Others (2005) 8 SCC 534:2005
(4) Suppl. SCR 582; Romesh Thappar v. State of Madras
(1950) SCR 594; Dr. Ram Manohar Lohia v. State of Bihar D
AIR 1966 SC 740: 1966 SCR 709; Dr. D.C. Saxena v. Hon'b/e
the Chief Justice of India (1996) 5 SCC 216: 1996 (3) Suppl.
SCR 677; Union of India v. Naveen Jindal and Anr. (2004) 2
SCC 510: 2004 (1) SCR 1038; Madhu Limaye v. Sub
Divisional Magistrate and Ors. AIR 1971 SC 2481: 1971 SCR E
742; Himat Lal K. Shah v. Commissioner of Police,
Ahmedabad & Anr. (1973) 1 SCC 227: 1973 (2) SCR 266;
State of Kamataka v. Dr. Praveen Bhai Thogadia (2004) 4
SCC 684: 2004 (3) SCR 652; S. Pratap Singh v. The State
of Punjab (1964) 4 SCR 733 and Oestruction of Public and F
Private Properties, In Re v. State of Andhra Pradesh and Ors.
(2009) 5 SCC 212: 2009 (6) SCR 439 - referred to.
Schenck v. United States [63] Led 1173 and Feiner v.
New York (1951) 340 U.S. 315 - referred to.
G
Freedom of Speech: The Supreme Court and Judicial
Review, by Martin Shapiro, 1966; Constitution of India,
(2nd Edn.), Volume 1 by Dr. L.M. Singhvi and
'Constitutional Law of India' by H.M. Seervai (Fourth
Edn.), Vol.1 and Preamble, The Spirit and Backbone of the H
976 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Constitution of India, by Justice R. C. Lahoti; Black's Law
Dictionary - Twentieth Edn.; Concise Oxford English
Dictionary - Eleventh Edn. and Clerk & Lindsel/ on Torts,
Twentieth Edition - referred to.
The scope of an order made under Section 144 Cr.P.C ..
8
its implications and infirmities with reference to the facts
of the case in hand
2.1. An order passed in anticipation by the Magistrate
empowered under Section 144 Cr.P.C. is not an
C encroachment of the freedom granted under Articles
19(1 )(a) and 19(1 )(b) of the Constitution and it is not
regarded as an unreasonable restriction. It is an executive
order, open to judicial review. In exercise of its executive
power the executive authority, by a written order and
D upon giving material facts, may pass an order issuing a
direction requiring a person to abstain from doing certain
acts or take certain actions/orders with respect to certain
properties in his possession, if the officer considers that
such an order is likely to prevent or tends to prevent
E obstruction, annoyance or injury to any other person. On
the bare reading of the language of Section 144 Cr.P.C.,
it is clear that the entire basis of an action under this
Section is the 'urgency of the situation' and the power
therein is intended to be availed for preventing 'disorder,
F obstruction and annoyance', with a view to secure the
public weal by maintaining public peace and tranquility.
[Para 156) [1088-D-GJ
2.2. In the instant case, the threat of going bn a
hunger strike extended by Baba Ramdev to personify his
G stand on the issues raised, cannot be termed as
unconstitutional or barred under any law. It is a form of
protest which has been accepted, both historically and
legally in our constitutional jurisprudence. The order
passed under Section 144 Cr.P.C. does not give any
H material facts or such compelling circumstances that
IN RE: RAMLll.AMAIDAN INCIDENTDT.4/5.06.2011 v. HOME 977
SECRETARY, UNION OF INDIA
would justify the passing of such an order at 11.30 p.m. A
on 4th June, 2011. There should have existed some
exceptional circumstances which reflected a clear and
prominent threat to public order and public tranquility for
the authorities to pass orders of withdrawal of permission
at 9.30 p.m. on 4th June, 2011. What weighed so heavily B
with the authorities so as to compel them to exercise such
drastic powers in the late hours of the night and disperse
the sleeping persons with the use of force, remains a
matter of guess. The Order under Section 144 Cr.PC does
not contain material facts and it is also evident from the c
bare reading of the Order that it did not direct Baba
Ramdev or respondent No. 4 to take certain actions or not
take certain actions which is not only the purpose but is
also the object of passing an Order under Section 144,
Cr.P.C. [Paras 171, 174] [1097-B-D; 1098-E] D
2.3. From the record before this Court, it is not clear
as to why the State did not expect obedience and
cooperation from Baba Ramdev in regard to execution of
its lawful orders, particularly when after withdrawal of the
permission for holding dharna at Jantar Mantar, Baba E
Ramdev had accepted the request of the Police not to go
to Jantar Mantar with his followers. The attendant
circumstances appearing on record as on 3rd June, 2011
i.e. the preceding day did not show any intention on their
part to flout the orders of the authorities or to cause any F
social disorder or show threat to public tranquility by their
action. Material facts, imminent threat and requirement for
immediate preventive steps should exist simultaneously
for passing any order under Section 144 Cr.P.C. The mere
change in the purpose or in the number of persons to be G
gathered at the Ramlila Maidan simplicitor could hardly
be the cause of such a grave concern for the authorities
to pass the orders late in the night. In the circumstances
of the case, it appears that it was not necessary for the
executive authorities and the Police to pass orders under H
Section 144 Cr.P.C. and withdraw the permissions. The
978 SUPREME COURT REPORTS [2012] 4 S.C.R.
A matter could be resolved by mutual deliberation and
intervention by the appropriate authorities. [Para 179]
[1100-E-F-H; 1101-A-D]
2.4. The events, right from January 2011, showed that
all the camps and protests organized by the Trust, under
B. the leadership of Baba Ramdev had been completed
peacefully, without any damage to person or property and
without any disturbance to anyone. The action of the
Police in revoking the permissions as well as that of the
executive authorities in passing the order under Section
C 144 Cr.P.C. was a colourable exercise of power and was
not called for in the facts and circumstances of the case.
[Para 182] (1103-A-B]
2.5. It is also not understandable that if the general
'threat perception' and likelihood of communal
D disharmony were the grounds for revoking the
permission and passing the order under Section 144
Cr.P .C., then why the order passed under Section 144
Cr.P.C. permitted all other rallies, processions which had
obtained the Police permission to go on in the area of the
E same Police Division.The decision, therefore, appears to
be contradictory in terms. [Para 183] [1103-C-D]
2.6. Existence of sufficient ground is the sine qua non
for invoking the power vested in the executive under
F Section 144 Cr.P.C. It is a very onerous duty that is cast
upon the empowered officer by the legislature. The
perception of threat should be real and not imaginary or
a mere likely possibility. The test laid down in this Section
is not that of 'merely likelihood or tendency'. The
legislature, in its wisdom, has empowered an officer of
G the executive to discharge this duty with great caution,
as the power extends to placing a restriction and in
certain situations, even a prohibition, on the exercise of
the fundamental right to freedom of speech and
expression. Thus, in case of a mere apprehension,
H without any material facts to indicate that the
IN RE: RAMLILAMAIDAN INCIDENTDT.4/5.06.2011 v. HOME 979
SECRETARY, UNION OF INDIA
apprehension is imminent and genuine, it may not be A
proper for the authorities to place such a restriction upon
the rights of the citizen. All the grounds stated were
considered at various levels of the Government and the
Police and they had considered it appropriate not to
withdraw the permissions or impose the restriction of B
Section 144 Cr.P.C. even till 3rd June, 2011. Thus, it was
expected of the authorities to show before the Court that
some very material information, fact or event had
occurred between 3rd and 4th June, 2011, which could
be described as the determinative factor for the c
authorities to change their mind and pass these orders.
[Para 184] [1103-E-H; 1104-A-B]
2.7. The administration, upon taking into
consideration the intelligence inputs, threat perception,
likelihood of disturbance to public order and other D
relevant considerations, had not only prepared its
planned course of action but also declared the same. In
furtherance thereto, the Police also issued directions for
compliance to the organizers. The authorities, thus, had
full opportunity to exercise their power to make a choice E
permitting continuation and/or cancellation of the
programme and thereby prohibit the activity on the
Ramlila Maidan. However, in their wisdom, they opted to
permit the continuation of the agitation and holding of the
yoga shivir, thereby impliedly permitting the same, even F
in the changed circumstances, as alleged. Quinon
prohibit qua prohibere protest asentire videthir (He who
does not prohibit when he is able to prohibit assents to
it). [Para 185] [1104-D-F]
2.8. The authorities are expected to seriously cogitate G
over the matter in its entirety keeping the common welfare
in mind. The Police have not placed on record any
document or even affidavits to show such sudden
change of circumstances, compelling the authorities to
take the action that they took. Denial of a right to hold H
980 SUPREME COURT REPORTS [2012] 4 S.C.R.
A such meeting has to be under exceptional circumstances
and strictly with the object of preventing public tranquility
and public order from being disturbed. [Para 186] [1104-
G-H; 1105-A]
Gu/am Abbas v. State of Uttar Pradesh AIR 1981 SC
8
2198: 1982 (1) SCR 1077 - referred to.
Reasonable notice is a requirement of Section 144
Cr.P.C.
c 3.1. The language of Section 144 Cr.P.C. does not
contemplate grant of any time for implementation of the
directions relating to the prevention or prohibition of
certain acts for which the order is passed against the
person(s). It is a settled rule of law that wherever provision
0 of a statute does not provide for a specific time, the same
has to be done within a reasonable time. Again
reasonable time cannot have a fixed connotation. It must
depend upon the facts and circumstances of a given
case. There may also be cases where the order passed
E by an Executive Magistrate under Section 144 Cr.P.C.
requires to be executed forthwith, as delay in its
execution may frustrate the very purpose of such an
order and may cause disastrous results like rioting,
disturbance of public order and public tranquility, while
there may be other cases where it is possible, on the
F principles of common prudence, that some time could be
granted for enforcement and complete implementation of
the order passed by the Executive Authority under
Section 144 Cr.P.C. [Para 187] [1105-B-E]
G 3.2. In the instant case, all the persons who had
gathered in the tent at the Ramlila Maidan were sleeping
when the Police went there to serve the order passed
under Section 144 Cr.P.C. upon the representatives of the
Trust; the order itself having been passed at 11.30 p.m.
H on 4th June, 2011. Nothing prevented the authorities
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 981
SECRETARY, UNION OF INDIA
from making proper announcements peacefully requiring A
the persons gathered at the Ramlila Maidan to leave for
their respective homes early in the morning and before
the yoga camp could resume. Simultaneously, they could
also have prohibited entry into the Ramlila Maidan, as the
same was being controlled by the Police itself. No facts B
or circumstances have been stated which could explain
as to why it was absolutely necessary for the Police to
wake up the people from their sleep and force their
eviction, in a manner in which it has been done at the late
hours of night. In absence of any explanation and special c
circumstances placed on record, in the facts of the
present case, it was quite possible and even desirable for
the authorities concerned to grant a reasonable time for
eviction from the ground and enforcement of the orders
passed under Section 144 Cr.P.C. Except in cases of 0
emergency or the situation unexceptionally demanding
so, reasonable notice/time for execution of the order or
compliance of the directions issued in the order itself or
in furtherance thereto is the pre-requisite. (Para 189]
(1106-C-D, F-H; 1107-A-B]
E
3.3. Non-grant of reasonable time and undue haste
on the part of the Police authorities to enforce the orders
under Section 144 Cr.P.C. instantaneously had resulted
in the unfortunate incident of human irony which could
i1ave been avoided with little more patience and control. F
It was expected of the Police authorities to bastion the
rights of the citizens of the country. However, undue
haste on the part of the Police created angst and disarray
amongst the gathering at the Ramlila Maidan, which
finally resulted in this sad cataclysm. [Para 190] [1107-C- G
DJ
Requirement of Police permission and its effect on the
right conferred in terms of Articles 19(1)(a) and 19(1)(b)
respectively with reference to the facts of the present H
~
982 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 4.1. Associating Police as a pre-requirement to hold
meetings, dharnas and protests, on large scale, would
not infringe the fundamental rights enshrined under
Articles 19(1 )(a) and 19(1 )(b) of the Constitution as this
would squarely fall within the regulatory mechanism of
s reasonable restrictions, contemplated under Articles
19(2) and 19(3). Furthermore, it would help in ensuring
due social order and would also not impinge upon the
rights of the others, as contemplated under Article 21 of
the Constitution of India. That would be the correct
c approach of law. [Para 220] [1120-E-F]
4.2. In the instant case, however, the action of the
Police was arbitrary. The Police action led to a terror in
the minds of members of the assembly and finally the
untoward incident. Here the onus was on the Police
D Authorities to show existence of such circumstances at
the spot when, admittedly, all persons were sleeping
peacefully. The courts have to realize that the rights of
the organizers and other members of the Society had to
be protected if a law and order situation was created as
E a result of a given situation. [Paras 204, 205] [1114-A, D,
E, F]
Babula/ Parate v. State of Maharashtra (1961) 3 SCR
423; Madhu Limaye v. Sub Divisional Magistrate and Ors.
F AIR 1971 SC 2481: 1971 SCR 742; Amitabh Bachchan
Corpn. Ltd. v. Mahi/a Jagran Manch & Ors. (1997) 7 SCC 91;
R.K. Garg v. Superintendent, District Jail, Saharanpur & Ors.
(1970) 3 SCC 227; State of Karnataka v. Dr. Praveen Bhai
Thogadia (2004) 4 SCC 684: 2004 (3) SCR 652; Himat Lal
K. Shah v. Commissioner of Police, Ahmedabad & Anr.
G (1973) 1 SCC 227: 1973 (2) SCR 266; Destruction of Public
and Private Properties, In Re v. State of Andhra Pradesh and
Ors. (2009) 5 SCC 212: 2009 (6) SCR 439 and Union of India
v. Association of Democratic Reforms (2002) 3 SCC 696 -
referred to.
H
IN RE: RAMLILAMAIDAN INCIDENTDT4/5.06.2011 v. HOME 983
SECRETARY, UNION OF INDIA
Responsibility of the Trust, Members of the Assembly, A
their status and duty
5.1. Once an order under Section 144 Cr.P.C. is
passed by the competent authority and such order
directs certain acts to be done or abstains from doing 8
certain acts and such order is in force, any assembly,
which initially might have been a lawful assembly, would
become an Linlawful assembly and the people so
assembled would be required to disperse in furtherance
to such order. A person can not only be held responsible C
for his own act, but, in light of Section 149 IPC, if the
offence is committed by any member of the unlawful
assembly in prosecution of a common object of that
assembly, every member of such assembly would
become member of the unlawful assembly. [Para 223)
[1121-C-E] D
5.2. In the instant case, the Police was concerned
with the problem of law and order while respondent No.
4 and Baba Ramdev certainly should have been
concerned about the welfare of their followers and the E
large gathering present at the Ramlila Maidan. Thus, to
that extent, the Police and respondent No. 4 ought to
.have acted in tandem and ensured that no damage to the
person or property should take place, which
unfortunately did not happen. Keeping in view the stature F
and respect that Baba Ramdev enjoyed with his
followers, he ought to have exercised the moral authority
of his office in the welfare of the people present. There
exists a clear constitutional duty, legal liability and moral
responsibility to ensure due implementation of lawful G
orders and to maintain the basic rule of law. It would have
served the greater public purpose and even the purpose
of the protests for which the rally was being held, if Baba
Ramdev had requested his followers to instantaneously
leave Ramlila Maidan peacefully or had assured the H
984 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Authorities that the morning yoga programme or protest
programme would be cancelled and the people would be
requested to leave for their respective places. Absence
of performance of this duty and the gesture of Baba
Ramdev led to an avoidable lacerating episode. Even if
B there was undue haste, adamancy and negligence on the
part of the Police authorities, then also to this negligence,
there was a contribution by respondent No. 4 as well. The
role of Baba Ramdev at that crucial juncture could have
turned the tide and probably brought a peaceful end
c rather than the heart rending end of injuries and
unfortunate deaths. Even if it is assumed that the action
of the Police was wrong in law, it gave no right to others
to commit any offence /njuria non excusat injuriam. [Para
233] [1126-C-H; 1127 -A]
D 5.3. Every law abiding citizen should respect the law
and must stand in conformity with the rule, be as high an
individual may be. Violation of orders has been made
punitive under the provisions of Section 188 IPC, but still
in other allied proceedings, it would result in fastening
E the liability on all contributory partners, may be
vicariously, but the liability certainly would extend to all
the defaulting parties. In the circumstances of the instant
case, Baba Ramdev and the office bearers of respondent
No.4 contributed to the negligence leading to the
F occurrence in question and are vicariously liable for such
action. [Para 234] [1127-B-C]
Municipal Corporation of Greater Bombay v. Shri
Laxman Iyer & Anr. AIR 2003 SC 4182: 2003 (4) Suppl. SCR
G 984 and Municipal Corporation of Delhi, Delhi v. Association
of Victims of Uphaar Tragedy and others [C.A. Nos.7114-
7115 of 2003 with C.A. No.7116 of 2003 and C.A. No. 6748
of 2004, pronounced on 13th October, 2011] - referred to.
Nance v. British Columbia Electric Ry. (1951) A.C. 601
H - referred to.
IN RE: RAMU LA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 985
SECRETARY, UNION OF INDIA
Clerk & Lindsell on Torts, Twentieth Edition, page 246 A
and Charlesworth & Percy on Negligence, Eleventh Edition,
pages 195, 206 - referred to.
Findings and Directions:
6. (i) In discharge of its judicial functions, the courts B
do not strike down the law or quash the State action
with the aim of obstructing democracy in the name
of preserving democratic process, but as a
contribution to the governmental system, to make it
fair, judicious and transparent. The courts take care C
of interests which are not sufficiently defended
elsewhere and/or of the victims of State action, in
exercise of its power of judicial review.
In the facts of the present case, the State and the o
Police could have avoided this tragic incident by
exercising greater restraint, patience and resilience.
The orders were passed by the authorities in undue
haste and were executed with force and
overzealousness, as if an emergent situation existed. E
The decision to forcibly evict the innocent public
sleeping on the Ramlila grounds in the midnight of
4th/5th June, 2011, whether taken by the police
independently or in consultation with the Ministry of
Home Affairs is amiss and suffers from the element
F
of arbitrariness and abuse of power to some extent.
The restriction imposed on the right to freedom of
speech and expression was unsupported by cogent
reasons and material facts. It was an invasion of the
liberties and exercise of fundamental freedoms. The
members of the assembly had legal protections G
available to them even under the provisions of the
Cr.P.C. Thus, the restriction was unreasonable and
unwarrantedly executed. The action demonstrated
the might of the State and was an assault on the very
basic democratic values enshrined in our H
986 SUPREME COURT REPORTS (2012] 4 S.C.R.
A Constitution. Except in cases of emergency or the
situation unexceptionably demanding so, reasonable
notice/time for execution of the order or compliance
with the directions issued in the order itself or in
furtherance thereto is the pre-requisite. It was
B primarily an error of performance of duty both by the
police and respondent No.4 but the ultimate sufferer
was the public at large.
(ii) It is evident that it was not a case of emergency.
The police have failed to establish that a situation
c had arisen where there was imminent need to
intervene, having regard to the sensitivity and
perniciously perilous consequences that could have
resulted, if such harsh measures had not been taken
forthwith.
D
(iii) The State has a duty to ensure fulfillment of the
freedom enshrined in our Constitution and so it has
a duty to protect itself against certain unlawful
actions. It may, therefore, enact laws which would
E ensure such protection. The rights and the liberties
are not absolute in nature and uncontrolled in
operation. While placing the two, the rule of justice
and fair play requires that State action should neither
be unjust nor unfair, lest it attracts the vice of
F unreasonableness or arbitrariness, resultantly
vitiating the law, the procedure and the action taken
thereunder.
(iv) It is neither correct nor judicially permissible to
say that taking of police permission for holding of
G dharnas, processions and rallies of the present kind
is irrelevant or not required in law. Thus, the
requirement of associating police, which is an
important organ of the State for ensuring
implementation of the rule of law, while holding such
H large scale meetings, dharnas and protests, would
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 987
SECRETARY, UNION OF !NOIA
not infringe the fundamental rights enshrined under A
Articles 19(1 )(a) and 19(1 )(b) of the Constitution. This
would squarely fall within the regulatory mechanism
of reasonable restrictions, contemplated under
Articles 19(2) and 19(3). Furthermore, it would help in
ensuring due social order and would also not B
impinge upon the rights of others, as contemplated
under Article 21 of the Constitution of India. The
police authorities, who are required to maintain the
social order and public tranquility, should have a say
in the organizational matters relating to holding of c
dharnas, processions, agitations and rallies of the
present kind. However, such consent should be
considered in a very objective manner by the police
authorities to ensure the exercise of the right to
freedom of speech and expression as understood in 0
its wider connotation, rather than use the power to
frustrate or throttle the constitutional right. Refusal
and/or withdrawal of permission should be for valid
and exceptional reasons. The executive power, to
cause a restriction on a constitutional right within the E
scope of Section 144 Cr.P.C., has to be used
sparingly and very cautiously. The authority of the
police to issue such permission has an inbuilt
element of caution and guided exercise of power and
should be in the interest of the public. Such an
exercise of power by the Police should be aimed at F
attainment of fundamental freedom rather than
improper suppression of the said right.
(v) Respondent no.4 is guilty of contributory
negligence. The Trust and its representatives ought G
to have discharged their legal and moral duty and
should have fully cooperated in the effective
implementation of a lawful order passed by the
competent authority under Section 144 Cr.P.C. Due
to the stature that Baba Ramdev enjoyed with his H
988 SUPREME COURT REPORTS [2012] 4 S.C.R.
A followers, it was expected of him to request the
gathering to disperse peacefully and leave the
Ramlila Maidan. He ought not have insisted on
continuing with his activity at the place of
occurrence. Respondent no.4 and all its
8 representatives were bound by the constitutional and
fundamental duty to safeguard public property and
to abjure violence. Thus, there was legal and moral
duty cast upon the members of the Trust to request
and persuade people to leave the Ramlila Maidan
c which could have obviously avoided the
confrontation between the police and the members
of the gathering at the Ramlila Maidan.
(vi) As difficult as it is to anticipate the right to any
freedom or liberty without any reasonable restriction,
D equally difficult it is to imagine existence of a right
not coupled with a duty. The duty may be a direct or
an indirect consequence of a fair assertion of the
right. Part Ill of the Constitution, although confers
rights, duties, regulations and restrictions are
E inherent thereunder. It can be stated with certainty
that the freedom of speech is the bulwark of
democratic Government. This freedom is essential
for the appropriate functioning of the democratic
process. The freedom of speech and expression is
F regarded as the first condition of liberty in the
hierarchy of liberties granted under our
constitutional mandate.
(vii) The provisions of Section 144 Cr.P.C. are
attracted in emergent situations. Emergent power
G
has to be exercised for the purposes of maintaining
public order. The material facts, therefore, should
demonstrate that the action is being taken for
maintenance of public order, public tranquility and
harmony.
H
IN RE: RAMLILAMAIDAN INCIDENTDT.4/5.06.2011 v. HOME 989
SECRETARY. UNION OF INDIA
(viii) Even if an order under Section 144 Cr.P.C. had A
to be given effect to, still Respondent no.4 had a right
to stay at the Ramlila Maidan with permissible
number of people as the land owning authority-MCD
had not revoked its permission and the same was
valid till 20th June, 2011. The chain of events reveals B
that it was a case of police excesses and, to a limited
extent, even abuse of power.
(ix) From the material placed before the Court, it
cannot be held that the order passed by the C
competent authority and execution thereof are ma/a
fide in law or in fact or is an abdication of power and
functions by the Police. The action, of course,
partially suffers from the vice of arbitrariness but
every arbitrary action necessarily need not be ma/a
fide. Similarly every incorrect decision in law or on D
facts of a given case may also not be ma/a fide but
every ma/a fide decision would be an incorrect and
impermissible decision and would be vitiated in law.
Upon taking into consideration the cumulative effect
of the affidavits filed on record and other E
documentary evidence, one is unable to dispel the
argument that the decision of the Ministry of Home
Affairs, Union of India reflected its shadow on the
decision-making process and decision of the police
authorities. F
(x) Also there would be no illegality if the police
authorities had acted in consultation with the Union
Ministry as it is the collective responsibility of various
departments of the State to ensure maintenance of G
law and order and public safety in the State.
(xi) Every person/body to whom such permission is
granted, shall give an undertaking to the authorities
concerned that he/it will cooperate in carrying out
their duty and any lawful orders passed by any H
990 SUPREME COURT REPORTS [2012] 4 S.C.R.
A competent court/authority/forum at any stage of the
commencement of an agitationldharnal procession
and/or period during which the permission granted
is enforced. This, of course, shall be subject to such
orders as may be passed by the court of competent
B jurisdiction.
(xii) Even on the touchstone of the principle of 'in
terrorem', the police have not acted with restraint or
adhered to the principle of 'least invasion' with the
constitutional and legal rights available to
c respondent no.4 and the members of the gathering
at the Ramlila Maidan.
(xiii) The present case is a glaring example of trust
deficit between the people governing and the people
D to be governed. Greater confidence needs to be built
between the authorities in power and the public at
large. Thus, while considering the 'threat perception'
as a ground for revoking such permissions or
passing an order under Section 144 Cr.P.C., 'care
E perception' has to be treated as an integral part
thereof. 'Care perception' is an obligation of the State
while performing its constitutional duty and
maintaining social order.
(xiv) The police authorities should take such actions
F properly and strictly in accordance with the
Guidelines, Standing Orders and the Rules
applicable thereto. It is not only desirable but also a
mandatory requirement of the present day that the
State and the police authorities should have a
G complete and effective dispersement plan in place,
before evicting the gathering by use of force from a
particular place, in furtherance to an order passed by
an executive authority under Section 144 of the
Cr.P.C.
H
IN RE: RAMLILA MAIDAN INCIDENT 014/5.06.2011 v. HOME 991
SECRETARY, UNION OF INDIA
(xv) This is not a case where the Court can come to A
the conclusion that the entire police force has acted
in violation to the Rules, Standing orders and have
fallen stray in their uncontrolled zeal of forcibly
evicting innocent public from the Ramlila Maidan.
There has to be a clear distinction between the cases B
of responsibility of the force collectively and the
responsibility of individual members of the forces. It
is found from the evidence on record that some of
the police officers/personnel were very cooperative
with the members of the assembly and helped them c
to vacate the Ramlila Maidan while others were
violent, inflicted cane injuries, threw bricks and even
used tear-gas shells, causing fire on the stage and
total commotion and confusion amongst the large
gathering at the Ramlila Maidan. Therefore, these two 0
classes of Police Force have to be treated differently.
(xvi) Thus, while directing the State Government and
the Commissioner of Police to register and
investigate cases of criminal acts and offences,
destruction of private and public property against the E
police officers/personnel along with those members
of the assembly, who threw bricks at the police force
causing injuries to the members of the force as well
as damage to the property, the following directions
are issued: a) Take disciplinary action against all the F
erring police officers/personnel who have indulged
in brick-batting, have resorted to lathi charge and
excessive use of tear gas shells upon the crowd,
have exceeded their authority or have acted in a
manner not permissible under the prescribed G
procedures, rules or the standing orders and their
actions have an element of criminality. This action
shall be taken against the officer/personnel
irrespective of what ranks they hold in the hierarchy
of police; b) The police personnel who were present H
992 SUPREME COURT REPORTS [2012] 4 S.C.R.
A in the panda/ and still did not help the evacuation of
the large gathering and in transportation of sick and
injured people to the hospitals have also rendered
themselves liable for appropriate disciplinary action
and c) The police shall also register criminal cases
B against the police personnel and members of the
gathering at the Ramlila ground (whether they were
followers of Baba Ramdev or otherwise) who
indulged in damage to the property, brick-batting etc.
All these cases have already been reported to the
c Police Station Kamla Market. The police shall
complete the investigation and file a report under
section 173 of the Cr.P.C. within three months.
(xvii) Also, the persons who died or were injured in
this unfortunate incident should be awarded ad hoc
D compensation. Smt. Rajbala, who got spinal injury in
the incident and subsequently died, would be entitled
to the ad-hoc compensation of Rs.5 lacs while
persons who suffered grievous injuries and were
admitted to the hospital would be entitled to
E compensation of Rs.50,000/- each and persons who
suffered simple injuries and were taken to the
hospital but discharged after a short while would be
entitled to a compensation of Rs.25,000/- each.
F For breach of the legal and moral duty and for its
contributory negligence, the consequences of financial
liability would also pass, though to a limited extent, upon
the respondent no.4-Trust as well. Thus, it is directed that
in cases of death and grievous hurt, 25% of the awarded
G compensation shall be paid by the Trust. The said amount
shall be paid to the Commissioner of Police, who in turn,
shall issue a cheque for the entire amount in favour of
the injured or the person claiming for the deceased. [Para
234) [1127-D-H; 1128-A-D, F-H; 1129-A-H; 1130-A-H; 1131-
H A-ff; 1132-A-H; 1133-A-H; 1134-A-H; 1135-A-F]
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 993
SECRETARY, UNION OF INDIA
6.2. The compensation awarded by this Court shall A
be treated as ad-hoc compensation and in the event, the
deceased or the injured persons or the persons claiming
through them institute any legal proceedings for that
purpose, the compensation awarded in this judgment
shall be adjusted in those proceedings. [Para 235) [1135- B
G-H; 1136-A]
Per Dr. B.S. Chauhan, J. [Supplementing]
HELD:1.1. The right to peacefully and lawfully
assemble together and to freely express oneself coupled C
with the right to know about such expression is
guaranteed under Article 19 of the Constitution of India.
Such a right is inherent and is also coupled with the right
to freedom and liberty which have been conferred under
Article 21 of the Constitution of India. [para 7) [1138-C] D
1.2. In the instant case, the fact remains that
implementation of promulgated prohibitory orders was
taken when the crowd was asleep. The said assembly
per-se, at that moment, did not prima facie reflect any E
apprehension of eminent threat or danger to public peace
and tranquillity nor any active demonstration was being
performed at that dead hour of night. [Para 8) [1138-E-F]
1.3. It is believed that a person who is sleeping, is half
dead. His mental faculties are in an inactive state. A F
person cannot be presumed to be engaged in a criminal
activity or an activity to disturb peace of mind when
asleep. To presume that a person was scheming to
disrupt public peace while asleep would be unjust and
would be entering into the dreams of that person. [Paras G
11, 12] [1139-G; 1141-B-C]
1.4. There may be a reason available to impose
prohibitory orders calling upon an assembly to disperse,
but, there does not appear to be any plausible reason for H
994 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the police to resort to blows on a sleeping crowd and to
throw them out of their encampments abruptly. The
affidavits and explanation given do not disclose as to
why the police could not wait till morning and provide a
reasonable time to this crowd to disperse peacefully. The
B undue haste caused a huge disarray and resulted in a
catastrophe that was witnessed on Media and Television
throughout the country. The incident in this litigation is
an example of a weird expression of the desire of a
tyrannical mind to threaten peaceful life suddenly for no
c justification. The precipitate action was nothing but a
clear violation of human rights and a definite violation of
procedure for achieving the end of dispersing a crowd.
[Para 13] [1141-C-E, F-H]
1.5. The State authorities are under a legal obligation
D to act in a manner that is fair and just. It has to act
honestly and in good faith. Privacy and dignity of human
life has always been considered a fundamental human
right of every human being like any other key values such
as freedom of association and freedom of speech. Every
E act which offends or impairs human dignity tantamounts
to deprivation pro tanto of his right to live and the State
action must be in accordance with reasonable, fair and
just procedure established by law which stands the test
of other fundamental rights. [Paras 16, 17] [1142-E-G;
F 1143-A]
1.6. Right to privacy has been held to be a
fundamental right of the citizen being an integral part of
Article 21 of the Constitution of India. Illegitimate intrusion
G into privacy of a person is not permissible as right to
privacy is implicit in the right to life and liberty
guaranteed under the Indian Constitution. However, right
of privacy may not be absolute and in exceptional
circumstance particularly surveillance in consonance
H with the statutory provisions may not violate such a right.
IN RE: RAMLILA MAIDAN INCIDENT 014/5.06.2011 v. HOME 995
SECRETARY, UNION OF INDIA
[Para 21) [1144-C-D] A
GVK Industries Ltd. &. Anr. v. Income Tax Officer&. Anr.
(2011) 4 SCC 36: 2011 (3) SCR 366; Nandini Sundar & Ors.
v. State of Chhatisgarh AIR 2011 SC 2839: 2011 (7) SCC
547; H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia
8
Bahadur & Ors. v. Union of India AIR 1971 SC 530: 1971 (3)
SCR 9; Mis Motilal Padampat Sugar Mills Co. Ltd. v. State
of U.P. &. Ors. AIR 1979 SC 621: 1979 (2) SCR 641; D.K.
Basu v. State of West Bengal AIR 1997 SC 610: 1996 (10)
Suppl. SCR 284; Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi &. Ors. AIR 1981 SC C
746: 1981 (2) SCR 516; Kharak Singh v. State of U.P. & Ors.
AIR 1963 SC 1295: 1964 SCR 332 Govind v. State of
Madhya Pradesh & Anr. AIR 1975 SC 1378: 1975 (3) SCR
946; People's Union for Civil Liberties v. Union of India &. Anr.
AIR 1997 SC 568: 1996 (10) Suppl. SCR 321; Wolf v. D
Colorado (1948) 338 US 25; Malak Singh etc. v. State of
Punjab & Haryana & Ors. AIR 1981 SC 760: 1981 (2) SCR
311; State of Maharashtra & Anr. v. Madhukar Narayan
Mardikar AIR 1991 SC 207: 1991 (1) SCC 57; R. Rajagopal
@R.R. Gopal & Anr. v. State of Tamil Nadu & Ors. AIR 1995 E
SC 264: 1994 (4) Suppl. SCR 353; PUCL v. Union of India
& Anr. AIR 1997 SC 568: 1996 (10) Suppl. SCR 321; Mr.
'X' v. Hospital 'Z', (1998) 8 SCC 296; Sharda v. Dharmpal
(2003) 4 SCC 493: 2003 (3) SCR 106; People's Union for
Civil Liberties (PUCL) & Anr. v. Union of India & Anr. AIR F
2003 SC 2363: 2003 (2) SCR 1136; District Registrar and
Collector, Hyderabad & Anr. v. Canara Bank & Ors. (2005) 1
SCC 496: 2004 (5) Suppl. SCR 833; Bhavesh Jayanti
Lakhani v. State of Maharashtra & Ors. (2009) 9 SCC 551:
2009 (12) SCR 861; Smt. Se/vi & Ors. v. State of Kamataka G
AIR 2010 SC 1974: 2010 (5) SCR 381; Ram Jethmalani &
Ors. v. Union of India & Ors. (2011) 8 SCC 1; Rabin
Mukherjee&. Ors. v. State of West Bengal&. Ors. AIR 1985
Cal. 222; Burrabazar Fireworks Dealers Association v.
Commissioner of Police, Calcutta AIR 1998 Cal 121; Church H
996 SUPREME COURT REPORTS [2012] 4 S.C.R.
A of God (Full Gospel) in India v. K.K.R. Majestic Colony
Welfare Assn. &. Ors. AIR 2000 SC 2773: 2000(3) Suppl.
SCR 15; Forum, Prevention of Environment and Sound
Pollution v. Union of India &. Ors. AIR 2006 SC 348: 2005
(4) Suppl. SCR 966 and Prithipal Singh & Ors. v. State of
B Punjab & Anr. (2012) 1 SCC 10 - referred to.
2. Section 144 Cr.P.C. deals with immediate
prevention and speedy remedy. Therefore, before
invoking such a provision, the statutory authority must
be satisfied regarding the existence of the circumstances
C showing the necessity of an immediate action. The sine
qua non for an order under Section 144 Cr.P.C. is
urgency requiring an immediate and speedy intervention
by passing of an order. The ?order must set out the
material facts of the situation. Such a provision can be
D used only in grave circumstances for maintenance of
public peace. The efficacy of the provision is to prevent
some harmful occurrence immediately. Therefore, the
emergency must be sudden and the consequences
sufficiently grave. [Para 30] [1147-B-D]
E
3.1. In the instant case, it is evident from the order
passed under Section 144 Cr.P.C. itself that the people
at large, sleeping in tents, had not been informed about
such promulgation and were not asked to leave the
F place. There had been a dispute regarding the service of
the orders on the organizers only. Therefore, there was
utter confusion and the gathering could not even
understand what the ?real dispute was and had reason
to believe that police was trying to evict Baba Ramdev
G forcibly. At no point of time, the assembly was declared
to be unlawful. In such a fact-situation, the police
administration is to be blamed for not implementing the
order, by strict adherence to the procedural requirements.
People at large have a legitimate expectation that
Executive Authority would ensure strict compliance to
H the procedural requirements and would certainly not act
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 997
SECRETARY, UNION OF INDIA
in derogation of applicable regulations. Thus, the present A
is a clear cut case of Human Rights violation. [Para 35]
[1150-D-G]
3.2. There was no gossip or discussion of something
untrue that was going on. To the contrary, it was 8
admittedly an assembly of followers, under a peaceful
banner of Yogic training, fast asleep. The assembly was
at least, purportedly, a conglomeration of individuals
gathered together, expressive of a determination to
improve the material condition of the human race. The C
aim of the assembly was prima facie unobjectionable and
was not to inflame passions. It was to ward off something
harmful. What was suspicious or conspiratory about the
assembly, may require an investigation by the appropriate
forum, but the implementation appears to have been
done in an unlawful and derogatory manner that did D
violate the basic human rights of the crowd to have a
sound sleep which is also a constitutional freedom,
acknowledged under Article 21 of the Constitution of
India. [Para 36] [1150-H; 1151-A-C]
E
3.3. Such an assembly is necessarily illegal cannot
be presumed, and even if it was, the individuals were all
asleep who were taken by surprise altogether for a
simultaneous implementation and action under Section
144 Cr.P.C. without being preceded by an announcement F
or even otherwise, giving no time in a reasonable way to
the assembly to disperse from the Ramlila Ground. To the
contrary, the sleep of this huge crowd was immodestly
and brutally outraged and it was dispersed by force
making them flee hither and thither,which by such G
precipitate action, caused a mayhem that was reflected
in the media. [Para 37] [1151-D-E]
3.4. An individual is entitled to sleep as comfortably
and as freely as he breathes. Sleep is essential for a
human being to maintain the delicate balance of health H
998 SUPREME COURT REPORTS [2012) 4 S.C.R.
A necessary for its very existence and survival. Sleep is,
therefore, a fundamental and basic requirement without
which the existence of life itself would be in peril. To
disturb sleep, therefore, would amount to torture which
is now accepted as a violation of human right. A sleeping
B crowd cannot be included within the bracket of an
unlawful category unless there is sufficient material to
brand it as such. The facts as uncovered and the
procedural mandate having been blatantly violated, is
malice in law and also the part played by the police and
c administration shows the outrageous behaviour which
cannot be justified by law in any civilized society.
Forewarning is given to the respondents to prevent any
repetition of such hasty and unwarranted act affecting the
safe living conditions of the citizens/persons in this
country. [Paras 38, 39] [1151-F; 1152-B-D]
0
Case Law Reference
In the judgment of Swatanter Kumar, J.
63 Led 1173 referred to Para 5, 7
E
(1961) 3 SCR 423 referred to Paras 8,47,204
1954 SCR 587 referred to Para 12
1978 (2) SCR 621 referred to Para 14
F
1979 (1) SCR 192 referred to Para 14
1989 (2) SCR 204 referred to Para 22
\
1952 SCR 597 referred to Para 26
G 1950 SCR 759 referred to Para 27
2005 (4) Suppl. SCR 582 referred to Para 28
(1950) SCR 594 referred to Para 30
1966 SCR 709 referred to Para 30
H
IN RE: RAMLILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 999
SECRETARY, UNION OF INDIA
1996 (3) Suppl. SCR 677 referred to Para 32 A
2004 (1) SCR 1038 referred to Para 41
1971 SCR 742 referred to Paras 38, 203
1973 (2) SCR 266 referred to Paras 39, 212
B
2004 (3) SCR 652 referred to Paras 41, 203
(1951) 340 U.S. 315 referred to Para 43
(1964) 4 SCR 733 referred to Para 69
c
2009 (6) SCR 439 referred to Paras 83, 216
1982 (1) SCR 1077 referred to Para 156
(1997) 1 sec 91 referred to Para 203
(1970) 3 sec 221 referred to Para 203 D
(2002) 3 sec 696 referred to Para 217
(1951) A.C. 601 referred to Para 227
2003 (4 ) Suppl. SCR 984 referred to Para 229 E
In the judgment of Dr. B.S. Chauhan, J.:
2011 (3) SCR 366 referred to Para 14
2011 (7) sec 547 referred to Para 14
F
1971 (3) SCR 9 referred to Para 15
1979 (2) SCR 641 referred to Para 15
1996 (10) Suppl. SCR 284 referred to Para 16
G
1981 (2) SCR 516 referred to Para 17
1964 SCR 332 referred to Para 19
1975 (3) SCR 946 referred to Para 19
H
1000 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 1996 (10) Suppl. SCR 321 referred to Para 19
(1948) 338 us 25 referred to Para 20
1981 (2) SCR 311 referred to Para 21
1991 (1) sec 57 referred to Para 21
B
1994 (4) Suppl. SCR 353 referred to Para 21
1996 (10) Suppl. SCR 321 referred to Para 21
(1998) 8 sec 296 referred to Para 21
c 2003 (3) SCR 106 referred to Para 21
2003 (2) SCR 1136 referred to Para 21
2004 (5) Suppl. SCR 833 referred to Para 21
D 2009 (12) SCR 861 referred to Para 21
2010 (5) SCR 381 referred to Para 21
(2011) a sec 1 referred to Para 22
E AIR 1985 Cal. 222 referred to Para 23
AIR 1998 Cal 121 referred to Para 23
2000 (3) Suppl. SCR 15 referred to Para 23
2005 (4) Suppl. SCR 966 referred to Para 23
F
(2012) 1 sec 10 referred to Para 28
CRIMINAL ORIGINAL JURISDICTION : SUO MOTU WRIT
PETITION (CRL.) NO. 122 OF 2011.
G Under Article 32 of the Constitution of India.
P.P. Malhotra, ASG, Dr, Rajeev Dhavan (Amicus Curiae),
Ram Jethmalani, P.H. Parekh, Udita Singh, L.R. Singh,
Shubhranshu Pedhi, Anil Katiyar, Lata Krishnamurti, Balaji
H Subramanian, Manu Sharma, Karan Kalia, Pranav Diesh,
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1001
SECRETARY, UNION OF INDIA
Sanjay Jain, Vikas Garg, B.K. Prasad, Siddhartha Dave, A
Shailender Sharma, S.N. Terdal, D.P. Mohanty, Subhasree
Chatterjee, Anand Shankar Jha, Ekansh Misra, (for Parekh &
Co.) Kamini Jaiswal, Shomila Bakshi, Abhimanyu Shrestha,
Kumud L. Das for the appearing parties.
B
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. At the very outset, I would
prefer to examine the principles of law that can render
assistance in weighing the merit or otherwise of the contentious
disputations asserted before the Court by the parties in the C
present suo moto petition. Besides restating the law governing
Articles 19(1)(a) and 19(1)(b) of the Constitution of India and
the parallel restrictions contemplated under Articles 19(2) and
19(3) respectively, I would also gauge the dimensions of legal
provisions in relation to the exercise of jurisdiction by the D
empowered officer in passing an order under Section 144 of
the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.').
2. It appears justified here to mention the First Amendment
to the United States (US) Constitution, a bellwether in the E
pursuit of expanding the horizon of civil liberties. This
Amendment provides for the freedom of speech of press in the
American Bill of Rights. This Amendment added new
dimensions to this right to freedom and purportedly, without any
limitations. The expressions used in wording the Amendment
F
have a wide magnitude and are capable of liberal construction.
It reads as under :
"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the G
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.''
3. The effect of use of these expressions, in particular, was
that the freedom of speech of press was considered absolute H
1002 SUPREME COURT REPORTS [2012] 4 S.C.R.
A and free from any restrictions whatsoever. Shortly thereafter, as
a result of widening of the power of judicial review, the US
Supreme Court preferred to test each case on the touchstone
of the rule of 'clear-and-present-danger'. However, application
of this rule was unable to withstand the pace of development
B of law and, therefore, through its judicial pronouncements, the
US Supreme Court applied the doctrine of 'balancing of
interests'. The cases relating to speech did not simply involve
the rights of the offending speaker but typically they presented
a clash of several rights or a conflict between individual rights
c and necessary functions of the Government. Justice Frankfurter
often applied the above-mentioned Balancing Formula and
concluded that "while the court has emphasized the importance
of 'free speech', it has recognized that free speech is not in
itself a touchstone. The Constitution is not unmindful of other
0 important interests, such as public order, if free expression of
ideas is not found to be the overbalancing considerations."
4. The 'balancing of interests' approach is basically
derived from Roscoe Pound's theories of social engineering.
Pound had insisted that his structure of public, social and
E individual interests are all, in fact, individual interests looked at
from different points of view for the purpose of clarity. Therefore,
in order to make the system work properly, it is essential that
when interests are balanced, all claims must be translated into
the same level and carefully labelled. Thus, a social interest may
F not be balanced against individual interest, but only against
another social interest. The author points out that throughout the
heyday of the clear-and-present-danger and preferred position
doctrines, the language of balancing, weighing or
accommodating interests was employed as an integral part of
G the libertarian position. [Freedom of Speech: The Supreme
Court and Judicial Review, by Martin Shapiro, 1966]
5. Even in the United States there is a recurring debate in
modern First Amendment Jurisprudence as to whether First
H Amendment rights are 'absolute' in the sense that the
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Government may not abridge them at all or whether the First A
Amendment requires the 'balancing of competing interests' in
the sense that free speech values and the Government's
competing justification must be isolated and weighted in each
case. Although the First Amendment to the American
Constitution provides that Congress shall make no law B
abridging the freedom of speech, press or assembly, it has long
been established that those freedoms themselves are
dependent upon the power of the constitutional Government to
survive. If it is to survive, it must have power to protect itself
against unlawful conduct and under some circumstances c
against incitements to commit unlawful acts. Freedom of
speech, thus, does not comprehend the right to speak on any
subject at any time. In the case of Schenck v. United States
[63 Led 1173], the Court held :
"The character of every act depends upon the D
circumstances in which it is done. The most stringent
protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. It does not
even protect a man from an injunction against uttering
words that have all the effect of force .... the question in E
every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive
evils that Congress has a right to prevent."
F
[Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi]
6. In contradistinction to the above approach of the US
Supreme Court, the Indian Constitution spells out the right to
freedom of speech and expression under Article 19(1 )(a). It
also provides the right to assemble peacefully and without arms G
to every citizen of the country under Article 19(1 )(b). However,
these rights are not free from any restrictions and are not
absolute in their terms and application. Articles 19(2) and 19(3),
respectively, control the freedoms available to a citizen. Article
19(2) empowers the State to impose reasonable restrictions H
1004 SUPREME COURT REPORTS [2012] 4 S.C.R.
A on exercise of the right to freedom of speech and expression
in the interest of the factors stated in the said clause. Similarly,
Article 19(3) enables the State to make any law imposing
reasonable restrictions on the exercise of the right conferred,
again in the interest of the factors stated therein.
B
7. In face of this constitutional mandate, the American
doctrine adumbrated in Schenck's case (supra) cannot be
imported and applied. Under our Constitution, this right is not
an absolute right but is subject to the above-noticed restrictions.
Thus, the position under our Constitution is different.
c
8. In 'Constitutional Law of India' by H.M. Seervai (Fourth
Edn.), Vol.1, the author has noticed that the provisions of the
two Constitutions as to freedom of speech and expression are
essentially different. The difference being accentuated by the
D provisions of the Indian Constitution for preventive detention
which have no counterpart in the US Constitution. Reasonable
restriction contemplated under the Indian Constitution brings the
matter in the domain of the court as the question of
reasonableness is a question primarily for the Court to decide.
E {Babula/ Parate v. State of Maharashtra [(1961) 3 SCR 423]}.
9. The fundamental right enshrined in the Constitution itself
being made subject to reasonable restrictions, the laws so
enacted to specify certain restrictions on the right to freedom
of speech and expression have to be construed meaningfully
F and with the constitutional object in mind. For instance, the right
to freedom of speech and expression is not-violated by a law
which requires that name of the printer and publisher and the
place of printing and publication should be printed legibly on
every book or paper.
G
10. Thus, there is a marked distinction in the language of
law, its possible interpretation and application under the Indian
and the US laws. It is significant to note that the freedom of
speech is the bulwark of democratic Government. This freedom
H is essential for proper functioning of the democratic process.
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The freedom of speech and expression is regarded as the first A
condition of liberty. It occupies a preferred position in the
hierarchy of liberties, giving succour and protection to all other
liberties. It has been truly said that it is the mother of all other
liberties. Freedom of speech plays a crucial role in the
formation of public opinion on social, political and economic B
matters. It has been described as a "basic human right", "a
natural right" and the like. With the development of law in India,
the right to freedom of speech and expression has taken within
its ambit the right to receive information as well as the right of
press. c
11. In order to effectively consider the rival contentions
raised and in the backdrop of the factual matrix, it will be of
some concern for this Court to examine the constitutional
scheme and the historical background of the relevant Articles
relating to the right to freedom of speech and expression in D
India. The framers of our Constitution, in unambiguous terms,
granted the right to freedom of speech and expression and the
right to assemble peaceably and without arms. This gave to the
citizens of this country a very valuable right, which is the
essence of any democratic system. There could be no E
expression without these rights. Liberty of thought enables
liberty of expression. Belief occupies a place higher than
thought and expression. Belief of people rests on liberty of
thought and expression. Placed as the three angles of a
triangle, thought and expression would occupy the two corner F
angles on the baseline while belief would have to be placed at
the upper angle. Attainment of the preambled liberties is
eternally connected to the liberty of expression. (Ref. Preamble,
The Spirit and Backbone of the Constitution of India, by
Justice R. C. Lahot1). These valuable fundamental rights are G
subject to restrictions contemplated under Articles 19(2) and
19(3), respectively. Article 19(1) was subjected to just one
amendment, by the Constitution (44th Amendment) Act, 1979,
vide which Article 19(1)(f) was repealed. Since the Parliament
felt the need of amending Article 19(2) of the Constitution, it H
1006 SUPREME COURT REPORTS [2012] 4 S.C.R.
A was substituted by the Constitution (First Amendment) Act,
1951 with retrospective effect. Article 19(2) was subjected to
another amendment and vide the Constitution (Sixteenth
Amendment) Act, 1963, the expression "sovereignty and
integrity of India" was added. The pre-amendment Article had
B empowered the State to make laws imposing reasonable
restrictions in exercise of the rights conferred under Article
19(1 )(a) in the interest of the security of the State, friendly
relations with foreign states, public order, decency or morality
or in relation to contempt of court, defamation or incitement of
c an offence. To introduce a more definite dimension with regard
to the sovereignty and integrity of India, this Amendment was
made. It provided the right spectrum in relation to which the
State could enact a law to place reasonable restrictions upon
the freedom of speech and expression.
D 12. This shows that the State has a duty to protect itself
against certain unlawful actions and, therefore, may enact laws
which would ensure such protection. The right that springs from
Article 19(1)(a) is not absolute and unchecked. There cannot
be any liberty absolute in nature and uncontrolled in operation
E so as to confer a right wholly free from any restraint. Had there
been no restraint, the rights and freedoms may become
synonymous with anarchy and disorder. {Ref.: State of West
Bengal Vs. Subodh Gopal Bose [AIR 1954 SC 92]}.
F 13. I consider it appropriate to examine the term 'liberty',
which is subject to reasonable restrictions, with reference to the
other constitutional rights. Article 21 is the foundation of the
constitutional scheme. It grants to every person the right to life
and personal liberty. This Article prescribes a negative
G mandate that no person shall be deprived of his life or personal
liberty except according to the procedure established by law.
The procedure established by law for deprivation of rights
conferred by this Article must be fair, just and reasonable. The
rules of justice and fair play require that State action should
H neither be unjust nor unfair, lest it attracts the vice of
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unreasonableness, thereby vitiating the law which prescribed A
that procedure and, consequently, the action taken thereunder.
14. Any action taken by a public authority which is
entrusted with the statutory power has, therefore, to be tested
by the application of two standards - first, the action must be 8
within the scope of the authority conferred by law and, second,
it must be reasonable. If any action, within the scope of the
authority conferred by law is found to be unreasonable, it means
that the procedure established under which that action is taken
is itself unreasonable. The concept of 'procedure established C
by law' changed its character after the judgment of this Court
in the case of Maneka Gandhi v. UOI [AIR 1978 SC 597),
where this Court took the view as under :
"The principle of reasonableness, which legally as well as
philosophically is an essential element of equality or non D
arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article
21 must answer the test of reasonableness in order to be
right and just and fair and not arbitrary fanciful or
oppressive otherwise it would be no procedure at all and E
the requirement of Article 21 would not be satisfied."
This was also noted in the case of Madhav Hayawadanrao
Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this
Court took the following view:
F
"Procedure established by law are words of deep meaning
for all lovers of liberty and judicial sentinels."
15. What emerges from the above principles, which has
also been followed in a catena of judgments of this Court, is G
that the law itself has to be reasonable and furthermore, the
action under that law has to be in accordance with the law so
established. Non-observance of either of this can vitiate the
action, but if the former is invalid, the latter cannot withstand.
H
1008 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 16. Article 13 is a protective provision and an index of the
importance and preference that the framers of the Constitution
gave to Part Ill. In terms of Article 13(1), the laws in force before
the commencement of the Constitution, in so far as they were
inconsistent with the provisions of that Part were, to the extent
B of such inconsistency, void. It also fettered the right of the State
in making laws. The State is not to make any law which takes
away or abridges the rights conferred by this Part and if such
law is made then to the extent of conflict, it would be void. In
other words, except for the limitations stated in the Articles
c contained in Part Ill itself and Article 13(4) of the Constitution,
this Article is the reservoir of the fundamental protections
available to any person/citizen.
17. While these are the guaranteed fundamental rights,
Article 38, under the Directive Principles of State Policy
D contained in Part IV of the Constitution, places a constitutional
obligation upon the State to strive to promote the welfare of the
people by securing and protecting, as effectively as it may, a
social order in which justice - social, economic and political -
shall inform all the institutions of the national life. Article 37
E makes the Directive Principles of State Policy fundamental in
governance of the country and provides that it shall be the duty
of the State to apply these principles in making laws.
18. With the development of law, even certain matters
F covered under this Part relating to Directive Principles have
been uplifted to the status of fundamental rights, for instance,
the right to education. Though this right forms part of the
Directive Principles of State Policy, compulsory and primary
education has been treated as a part of Article 21 of the
G Constitution of India by the courts, which consequently led to
the enactment of the Right of Children to Free and Compulsory
Education Act, 2010.
19. Article 51A deals with the fundamental duties of the
citizens. It, inter alia, postulates that it shall be the duty of every
H citizen of India to abide by the Constitution, to promote harmony
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and the spirit of common brotherhood, to safeguard public A
property and to abjure violence.
20. Thus, a common thread runs through Parts Ill, IV and
IVA of the Constitution of India. One Part enumerates the
fundamental rights, the second declares the fundamental 8
principles of governance and the third lays down the
fundamental duties of the citizens. While interpreting any of
these provisions, it shall always be advisable to examine the
scope and impact of such interpretation on all the three
constitutional aspects emerging from these parts. It is C
necessary to be clear about the meaning of the word
"fundamental" as used in the expression "fundamental in the
governance of the State" to describe the directive principles
which have not legally been made enforceable. Thus, the word
"fundamental" has been used in two different senses under our
Constitution. The essential character of the fundamental rights D
is secured by limiting the legislative power and by providing that
any transgression of the limitation would render the offending
law pretendo void. The word "fundamental" in Article 37 also
means basic or essential, but it is used in the normative sense
of setting, before the State, goals which it should try to achieve. E
As already noticed, the significance of the fundamental
principles stated in the directive principles has attained greater
significance through judicial pronouncements.
21. As difficult as it is to anticipate the right to any freedom F
or liberty without any reasonable restriction, equally difficult it
is to imagine the existence of a right not coupled with a duty.
The duty may be a direct or indirect consequence of a fair
assertion of the right. Part Ill of the Constitution of India although
confers rights, still duties and restrictions are inherent G
thereunder. These rights are basic in nature and are recognized
and guaranteed as natural rights, inherent in the status of a
citizen of a free country, but are not absolute in nature and
uncontrolled in operation. Each one of these rights is to be
controlled, curtailed and regulated, to a certain extent, by laws H
1010 SUPREME COURT REPORTS [2012] 4 S.C.R.
A made by the Parliament or the State Legislature. In spite of
there being a general presumption in favour of the
constitutionality of a legislation under challenge alleging
violation of the right to freedom guaranteed by clause (1) of
Article 19 of the Constitution, on a prima facie case of such
B violation being made out, the onus shifts upon the State to show
that the legislation comes within the permissible restrictions set
out in clauses (2) to (6) of Article 19 and that the particular
restriction is reasonable. It is for the State to place on record
appropriate material justifying the restriction and its
c reasonability. Reasonability of restriction is a matter which
squarely falls within the power of judicial review of the Courts.
Such limitations, therefore, indicate two purposes; one that the
freedom is not absolute and is subject to regulatory measures
and the second that there is also a limitation on the power of
D the legislature to restrict these freedoms. The legislature has
to exercise these powers within the ambit of Article 19(2) of
the Constitution.
22. Further, there is a direct and not merely implied
responsibility upon the Government to function openly and in
E public interest. The Right to Information itself emerges from the
right to freedom of speech and expression. Unlike an individual,
the State owns a multi-dimensional responsibility. It has to
maintain and ensure security of the State as well as the social
and public order. It has to give utmost regard to the right to
F freedom of speech and expression which a citizen or a group
of citizens may assert. The State also has a duty to provide
security and protection to the persons who wish to attend such
assembly at the invitation of the person who is exercising his
right to freedom of speech or otherwise. In the case of S.
G Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], this Court
noticed as under :
"45. The problem of defining the area of freedom of
expression when it appears to conflict with the various
social interests enumerated under Article 19(2) may briefly
H
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be touched upon here. There does indeed have to be a A
compromise between the interest of freedom of
expression and special interests. But we cannot simply
balance the two interests as if they are of equal weight.
Our commitment of freedom of expression demands that
it cannot be suppressed unless the situations created by B
allowing the freedom are pressing and the community
interest is endangered. The anticipated danger should not
be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to c
the public interest. In other words, the expression should
be inseparably locked up with the action contemplated like
the equivalent of a "spark in a power keg"."
23. Where the Court applies the test of 'proximate and
direct nexus with the expression', the Court also has to keep D
in mind that the restriction should be founded on the principle
of least invasiveness i.e. the restriction should be imposed in
a manner and to the extent which is unavoidable in a given
situation. The Court would also take into consideration whether
the anticipated event would or would not be intrinsically E
dangerous to public interest.
24. Now, I would examine the various tests that have been
applied over the period of time to examine the validity and/or
reasonability of the restrictions imposed upon the rights. F
Upon the Rights Enshrined in the Constitution
25. No person can be divested of his fundamental rights. ·
They are incapable of being taken away or abridged. All that
the State can do, by exercise of its legislative power, is to G
regulate these rights by imposition of reasonable restrictions
on them. Upon an analysis of the law, the following tests
emerge:-
(a) The restriction can be imposed only by or under H
1012 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the authority of law. It cannot be imposed by
exercise of executive power without any law to back
it up.
(b) Each restriction must be reasonable.
B (c) A restriction must be related to the purpose
mentioned in Article 19(2).
26. The questions before the Court, thus, are whether the
restriction imposed was reasonable and whether the purported
c purpose of the same squarely fell within the relevant clauses
discussed above. The legislative determination of what
restriction to impose on a freedom is final and conclusive, as
it is not open to judicial review. The judgments of this Court
have been consistent in taking the view that it is difficult to define
0 or explain the word "reasonable" with any precision. It will
always be dependent on the facts of a given case with
reference to the law which has been enacted to create a
restriction on the right. It is neither possible nor advisable to
state any abstract standard or general pattern of
E reasonableness as applicable uniformly to all cases. This Court
in the case of State of Madras v. V. G. Row [AIR 1952 SC 196]
held:-
"It is important in this context to bear in mind that the test
of reasonableness, whereever prescribed, should be
F applied to each individual statute impugned, and no
abstract standard or general pattern of reasonableness,
can be laid down as applicable to all cases."
27. For adjudging the reasonableness of a restriction,
G factors such as the duration and extent of the restrictions, the
circumstances under which and the manner in which that
imposition has been authorized, the nature of the right infringed,
the underlining purpose of the restrictions imposed, the extent
and urgency of the evil sought to be remedied thereby, the
H disproportion of the imposition, the prevailing conditions at the
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time, amongst others, enter into the judicial verdict. [See: A
Chintamanrao & Anr. v. State of Madhya Pradesh (AIR 1951
SC 118)].
28. The courts must bear a clear distinction in mind with
regard to 'restriction' and 'prohibition'. They are expressions
8
which cannot be used inter-changeably as they have different
connotations and consequences in law. Wherever a
'prohibition' is imposed, besides satisfying all the tests of a
reasonable 'restriction', it must also satisfy the requirement that
any lesser alternative would be inadequate. Furthermore,
whether a restriction, in effect, amounts to a total prohibition or C
not, is a question of fact which has to be detennined with regard
to facts and circumstances of each case. This Court in the case
of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat
and Others [(2005) 8 SCC 534] held as under:-
D
"75. Three propositions are well settled: (i) 'restriction'
includes cases of 'prohibition'; (ii) the standard for judging
reasonability of restriction or restriction amounting to
prohibition remains the same, excepting that a total
prohibition must also satisfy the test that a lesser alternative E
would be inadequate; and (iii) whether a restriction in effect
amounts to a total prohibition is a question of fact which
shall have to be determined with regard to the facts and
circumstances of each case, the ambit of the right and the
effect of the restriction upon the exercise of that right.. .. ." F
29. The obvious result of the above discussion is that a
restriction imposed in any form has to be reasonable and to
that extent, it must stand the scrutiny of judicial review. It cannot
be arbitrary or excessive. It must possess a direct and
proximate nexus with the object sought to be achieved. G
Whenever and wherever any restriction is imposed upon the
right to freedom of speech and expression, it must be within
the framework of the prescribed law, as subscribed by Article
19(2) of the Constitution.
H
1014 SUPREME COURT REPORTS (2012] 4 S.C.R.
A 30. As already noticed, rights, restrictions and duties co-
exist. As, on the one hand, it is necessary to maintain and
preserve the freedom of speech and expression in a
democracy, there, on the other, it is also necessary to place
reins on this freedom for the maintenance of social order. The
B term 'social order' has a very wide ambit. It includes 'law and
order', 'public order' as well as 'the security of the State'. The
security of the State is the core subject and public order as well
as law and order follow the same. In the case of Ramesh
Thappar v. State of Madras (1950 SCR 594], this Court took
c the view that local breaches of public order were no grounds
for restricting the freedom of speech guaranteed by the
Constitution. This led to the Constitutional (First Amendment)
Act, 1951 and consequently, this Court in the case of Dr. Ram
Manohar Lohia v. State of Bihar [Al R 1966 SC 740] stated that
an activity which affects 'law and order' may not necessarily
0
affect 'public order' and an activity which might be prejudicial
to 'public order' may not necessarily affect 'security of the
State'. Absence of 'public order' is an aggravated form of
disturbance of public peace which affects the general current
E of public life. Any act which merely affects the security of others
may not constitute a breach of 'public order'.
31. The expression 'in the interest of has given a wide
amplitude to the permissible law which can be enacted to
impose reasonable restrictions on the rights guaranteed by
F Article 19(1) of the Constitution.
32. There has to be a balance and proportionality between
the right and restriction on the one hand, and the right and duty,
on the other. It will create an imbalance, if undue or
G disproportionate emphasis is placed upon the right of a citizen
without considering the significance of the duty. The true source
of right is duty. When the courts are called upon to examine the
reasonableness of a legislative restriction on exercise of a
freedom, the fundamental duties enunciated under Article 51A
H are of relevant consideration. Article 51A requires an individual
to abide by the law, to safeguard public property and to abjure
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violence. It also requires the individual to uphold and protect A
the sovereignty, unity and integrity of the country. All these duties
are not insignificant. Part IV of the Constitution relates to the
Directive Principles of the State Policy. Article 38 was
introduced in the Constitution as an obligation upon the State
to maintain social order for promotion of welfare of the people. B
By the Constitution (Forty-Second Amendment) Act, 1976,
Article 51A was added to comprehensively state the
fundamental duties of the citizens to compliment the obligations
of the State. Thus, all these duties are of constitutional
significance. It is obvious that the Parliament realized the need c
for inserting the fundamental duties as a part of the Indian
Constitution and required every citizen of India to adhere to
those duties. Thus, it will be difficult for any Court to exclude
from its consideration any of the above-mentioned Articles of
the Constitution while examining the validity or otherwise of any
0
restriction relating to the right to freedom of speech and
expression available to a citizen under Article 19(1)(a) of the
Constitution. The restriction placed on a fundamental right would
have to be examined with reference to the concept of
fundamental duties and non-interference with liberty of others. E
Therefore, a restriction on the right to assemble and raise
protest has also to be examined on similar parameters and
values. In other words, when you assert your right, you must
respect the freedom of others. Besides imposition of a
restriction by the State, the non-interference with liberties of
others is an essential condition for assertion of the right to F
freedom of speech and expression. In the case of Dr. D. C.
Saxena v. Hon'ble the Chief Justice of India [(1996) 5 SCC
216), this Court held:
"31. If maintenance of democracy is the foundation for free G
speech, society equally is entitled to regulate freedom of
speech or expression by democratic action. The reason
is obvious, viz., that society accepts free speech and
expression and also puts limits on the right of the majority.
Interest of the people involved in the acts of expression H
1016 SUPREME COURT REPORTS [2012] 4 S.C.R.
A should be looked at not only from the perspective of the
speaker but also the place at which he speaks, the
scenario, the audience, the reaction of the publication, the
purpose of the speech and the place and the forum in
which the citizen exercises his freedom of speech and
B expression. The State has legitimate interest, therefore, to
regulate the freedom of speech and expression which
liberty represents the limits of the duty of restraint on
speech or expression not to utter defamatory or libellous
speech or expression. There is a correlative duty not to
c interfere with the liberty of others. Each is entitled to dignity
of person and of reputation. Nobody has a right to
denigrate others' right to person or reputation. Therefore,
freedom of speech and expression is tolerated so long as
it is not malicious or libellous, so that all attempts to foster
and ensure orderly and peaceful public .discussion or public
D
good should result from free speech in the market-place.
If such speech or expression was untrue and so reckless
as to its truth, the speaker or the author does not get
protection of the constitutional right."
E 33. Every right has a corresponding duty. Part Ill of the
Constitution of India although confers rights and duties,
restrictions are inherent thereunder. Reasonable regulations
have been found to be contained in the provisions of Part Ill of
the Constitution of India, apart from clauses (2) to (4) and (6)
F of Article 19 of the Constitution {See Union of India v. Naveen
Jindal and Anr. [(2004) 2 SCC 510]}.
34. As I have already discussed, the restriction must be
provided by law in a manner somewhat distinct to the term 'due
G process of law' as contained in Article 21 of the Constitution. If
the orders passed by the Executive are backed by a valid and
effective law, the restriction imposed thereby is likely to
withstand the test of reasonableness, which requires it to be
free of arbitrariness, to have a direct nexus to the object and
to be proportionate to the right restricted as well as the
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requirement of the society, for example, an order passed under A
Section 144 Cr.P.C. This order is passed on the strength of a
valid law enacted by the Parliament. The order is passed by
an executive authority declaring that at a given place or area,
more than five persons cannot assemble and hold a public
meeting. There is a complete channel provided for examining B
the correctness or otherwise of such an order passed under
Section 144 Cr.P.C. and, therefore, it has been held by this
Court in a catena of decisions that such order falls within the
framework of reasonable restriction.
35. The distinction·between 'public order' and 'law and
c
order' is a fine one, but nevertheless clear. A restriction
imposed with 'law and order' in mind would be least intruding
into the guaranteed freedom while 'public order' may qualify for
a greater degree of restriction since public order is a matter
of even greater social concern. Out of all expressions used in D
this regard, as discussed in the earlier part of this judgment,
'security of the state' is the paramount and the State can impose
restrictions upon the freedom, which may comparatively be
more stringent than those imposed in relation to maintenance
of 'public order' and 'law and order'. However stringent may E
these restrictions be, they must stand the test of 'reasonability'.
The State would have to satisfy the Court that the imposition
of such restrictions is not only in the interest of the security of
the State but is also within the framework of Articles 19(2) and
19(3) of the Constitution. F
36. It is keeping this distinction in mind, the Legislature,
under Section 144 Cr.P.C., has empowered the District
Magistrate, Sub-D1visional Magistrate or any other Executive
Magistrate, specially empowered in this behalf, to direct any G
person to abstain from doing a certain act or to take action as
directed, where sufficient ground for proceeding under this
Section exists and immediate prevention and/or speedy remedy
is desirable. By virtue of Section 144A Cr.P.C., which itself was
introduced by Act 25 of 2005, the District Magistrate has been
H
1018 SUPREME COURT REPORTS [2012] 4 S.C.R.
A empowered to pass an order prohibiting, in any area within the
local limits of his jurisdiction, the carrying of arms in any
procession or the organizing or holding of any mass drill or
mass training with arms in any public place, where it is
necessary for him to do so for the preservation of public peace,
B public safety or maintenance of the public order. Section 144
Cr.P.C, therefore, empowers an executive authority, backed by
these provisions, to impose reasonable restrictions vis-a-vis
the fundamental rights. The provisions of Section 144 Cr.P.C.
provide for a complete mechanism to be followed by the
c Magistrate concerned and also specify the limitation of time till
when such an order may remain in force. It also prescribes the
circumstances that are required to be taken into consideration
by the said authority while passing an order under Section 144
Cr.P.C.
D 37. In Babu Lal Parate (supra) where this Court was
concerned with the contention raised on behalf of the union of
workers that the order passed in anticipation by the Magistrate
under Section 144 Cr.P.C. was an encroachment on their rights
under Articles 19(1)(a) and 19(1)(b), it was held that the
E provisions of the Section, which commit the power in this
regard to a Magistrate belonging to any of the classes referred
to therein cannot be regarded as unreasonable. While
examining the law in force in the United States, the Court further
held that an anticipatory action of the kind permissible under
F Section 144 Cr.P.C. is not impermissible within the ambit of
clauses (2) and (3) of Article 19. Public order has to be
maintained at all times, particularly prior to any event and,
therefore, it is competent for the legislature to pass a law
permitting the appropriate authority to take anticipatory action
G or to place anticipatory restrictions upon particular kind of acts
in an emergency for the purpose of maintaining public order.
38. In the case of Madhu Limaye v. Sub Divisional
Magistrate and Ors. [AIR 1971 SC 2481], a Constitution Bench
H of this Court took the following view:
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"24. The procedure to be followed is next stated. Under A
Sub-section (2) if time does not permit or the order cannot
be served, it can be made ex parte. Under Sub-section
(3) the order may be directed to a particular individual or
to the public generally when frequenting or visiting a
particular place. Under sub-section (4) the Magistrate may 8
either suo motu or on an application by an aggrieved
person, rescind or alter the order whether his own or by a
Magistrate subordinate to him or made by his
predecessor in Office. Under Sub-section (5) where the
magistrate is moved by a person aggrieved he must hear C
him so that he may show cause against. the order and if
the Magistrate rejects wholly or in part the application, he
must record his reasons in writing. This sub-section is
mandatory. An order by the Magistrate does not remain
in force after two months from the making thereof but the
0
State Government may, however, extend the period by a
notification in the Gazette but, only in cases of danger to
human life, health or safety or where there is a likelihood
of a riot or an affray. But the second portion of the sub-
section was declared violative of Article 19 in State of
Bihar v. K.K. Misra (1969] S.C.R. 337. It may be pointed E
out here that disobedience of an order lawfully promulgated
is made an offence by Section 188 of the Indian Penal
Code, if such disobedience causes obstruction, annoyance
or injury to persons lawfully employed. It is punishable with
simple imprisonment for one month or fine of Rs. 200 or F
both.
25. The gist of action under Section 144 is the urgency of
the situation, its efficacy in the likelihood of being able to
prevent some harmful occurrences. As it is possible to act G
absolutely and even ex parte it is obvious that the
emergency must be sudden and the consequences
sufficiently grave. Without it the exercise of power would
have no justification. It is not an ordinary power flowing from
administration but a power used in a judicial manner and
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1020 SUPREME COURT REPORTS [2012] 4 S.C.R.
A which can stand further judicial scrutiny in the need for the
exercise of the power, in its efficacy and in the extent of
its application. There is no general proposition that an
order under Section 144, Criminal Procedure Code cannot
be passed without taking evidence : see Mst. Jagrupa
B Kumari v. Chotay Narain Singh (1936) 37 Cri.L.J. 95 (Pat)
which in our opinion is correct in laying down this
proposition. These fundamental facts emerge from the way
the occasions for the exercise of the power are mentioned.
Disturbances of public tranquility, riots and affray lead to
subversion of public order unless they are prevented in
c time. Nuisances dangerous to human life, health or safety
have no doubt to be abated and prevented. We are,
however, not concerned with this part of the section and
the validity of this part need not be decided here. In so far
as the other parts of the section are concerned the key-
D note of the power is to free society from menace of serious
disturbances of a grave character. The section is directed
against those who attempt to prevent the exercise of legat
rights by others or imperil the p"ublic safety and health. If
that be so the matter must fall within the restrictions which
E the Constitution itself visualises as permissible in the
interest of public order, or in the interest of the general
public. We may say, however, that annoyance must assume
sufficiently grave proportions to bring the matter within
interests of public order.
F
26. The criticism, however, is that the section suffers from
over broadness and the words of the section are wide
enough to give an absolute power which may be exercised
in an unjustifiable case and then there would be no remedy
G except to ask the Magistrate to cancel the order which he
may not do. Revision against his determination to the High
Court may prove illusory because before the High Court
can intervene the mischief will be done. Therefore, it is
submitted that an inquiry should precede the making of the
order. In other words, the burden should not be placed
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upon the person affected to clear his position. Further the A
order may be so general as to affect not only a particular
party but persons who are innocent, as for example when
there is an order banning meetings, processions, playing
of music etc.
B
27. The effect of the order being in the interest of public
order and the interests of the general public, occasions
may arise when it is not possible to distinguish between
those whose conduct must be controlled and those whose
conduct is clear. As was pointed out in Babula/ Parate C
case where two rival trade unions clashed and it was
difficult to say whether a person belonged to one of the
unions or to the general public, an order restricting the
activities of the general public in the particular area was
justified.
D
28 .... A general order may be necessary when the number
of persons is so large that distinction between them and
the general public cannot be made without the risks
mentioned in the section. A general order is thus justified
but if the action is too general the order may be questioned E
by appropriate remedies for which there is ample provision
in the law."
39. In the case of Himat Lal K. Shah v. Commissioner of
Police, Ahmedabad & Anr. [(1973) 1 SCC 227], again a
F
Constitution Bench of this Court, while dealing with a situation
where a person seeking permission to hold a public meeting
was denied the same on the ground that under another similar
permission, certain elements had indulged in rioting and
caused mischief to private and public properties, held Rule 7
framed under the Bombay Police Act, 1951 as being arbitrary G
and observed as under :
" ...... 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 H
1022 SUPREME COURT REPORTS [2012) 4 S.C.R.
A 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
B place. This Court held in Railway Board v. Narinjan Singh
(1969) 3 SCR 548; 554 : (1969)1 SCC 502 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
c 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'."
D 40. Section 144 Cr.P.C. is intended to serve public
purpose and protect public order. This power vested in the
executive is to be invoked after the satisfaction of the authority
that there is need for·immediate prevention or that speedy
remedy is desirable and directions as contemplated are
E necessary to protect the interest of others or to prevent danger
to human life, health or safety or disturbance of public tranquility
or a riot or an affray. These features must co-exist at a given
point of time in order to enable the authority concerned to pass
appropriate orders. The expression 'law and order' is a
F comprehensive expression which may include not merely 'public
order' but also matters such as 'public peace', 'public tranquility'
and 'orderliness' in a locality or a local area and perhaps some
other matters of public concern too. 'Public order' is something
distinct from order or orderliness in a local area. Public order,
G if disturbed, must lead to public disorder whereas every breach
of peace may not always lead to public disorder. This concept
came to be illustratively explained in the judgment of this Court
in the case of Dr. Ram Manohar Lohia (supra) wherein it was
held that when two drunkards quarrel and fight, there is
H 'disorder' but not 'public disorder'. They can be dealt with under
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the powers to maintain 'law and order' but cannot be detained A
on the ground that they were disturbing 'public order'. However,
where the two persons fighting were of rival communities and
one of them tried to raise communal passions, the problem is
still one of 'law and order' but it raises the apprehension of
public disorder. The main distinction is that where it affects the 8
community or public at large, it will be an issue relatable to
'public order'. Section 144 Cr.P.C. empowers passing of such
order in the interest of public order equitable to public safety
and tranquility. The provisions of Section 144 Cr.P.C.
empowering the authorities to pass orders to tend to or to C
prevent the disturbances of public tranquility is not ultra vires
the Constitution.
41. In the case of State of Karnataka v. Dr. Praveen Bhai
Thogadia, [(2004) 4 SCC 684], this Court, while observing that
each person, whatever be his religion, must get the assurance D
from the State that he has the protection of law freely to profess,
practice and propagate his religion and the freedom of
conscience, held more emphatically that the courts should not
normally interfere with matters relating to law and order which
is primarily the domain of the concerned administrative E
authorities. They are by and large the best to assess and handle
the situation depending upon the peculiar needs and
necessities within their special knowledge.
42. The scope of Section 144 Cr.P.C. enumerates the
F
principles and declares the situations where exercise of rights
recognized by law, by one or few, may conflict with other rights
of the public or tend to endanger the public peace, tranquility
and/or harmony. The orders passed under Section 144 Cr.P.C.
are attempted to serve larger public interest and purpose. As
already noticed, under the provisions of the Cr.P.C. complete G
procedural mechanism is provided for examining the need and
merits of an order passed under Section 144 Cr.P.C. If one
reads the provisions of Section 144 Cr.P.C. along with other
constitutional provisions and the judicial pronouncements of this
H
1024 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Court, it can undisputedly be stated that Section 144 Cr.P.C.
is a power to be exercised by the specified authority to prevent
disturbance of public order, tranquility and harmony by taking
immediate steps and when desirable, to take such preventive
measures. Further, when there exists freedom of rights which
8 are subject to reasonable restrictions, there are
contemporaneous duties cast upon the citizens too. The duty
to maintain law and order lies on the concerned authority and,
thus, there is nothing unreasonable in making it the initial judge
of the emergency. All this is coupled with a fundamental duty
C upon the citizens to obey such lawful orders as well as to extend
their full cooperation in maintaining public order and tranquility.
43. The concept of orderly conduct leads to a balance for
assertion of a right to freedom. In the case of Feiner v. New
York (1951) 340 U.S. 315, the Supreme Court of the United
D States of America dealt with the matter where a person had
been convicted for an offence of disorderly conduct for making
derogatory remarks concerning various persons including the
President, political dignitaries and other local political officials
during his speech, despite warning by the Police officers to stop
E the said speech. The Court, noticing the condition of the crowd
as well as the refusal by the petitioner to obey the Police
requests, found that the conduct of the convict was in violation
of public peace and order and the authority did not exceed the
bounds of proper state Police action, held as under:
F
"It is one thing to say that the Police cannot be used as an
instrument for the suppression of unpopular views, and
another to say that, when as here the speaker passes the
bounds of arguments or persuasion and undertakes
incitement to riot, they are powerless to prevent a breach
G of the peace. Nor in this case can we condemn the
considered judgment of three New York courts approving
the means which the Police, faced with a crisis, used in
the exercise of their power and duty to preserve peace and
order. The findings of the state courts as to the existing
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situation and the imminence of greater disorder couples A
with petitioner's deliberate defiance of the Police officers
convince us that we should not reverse this conviction in
the name of free speech."
44. Another important precept of exercise of power in 8
terms of Section 144 Cr.P.C. is that the right to hold meetings
in public places is subject to control of the appropriate authority
regarding the time and place of the meeting. Orders, temporary
in nature, can be passed to prohibit the meeting or to prevent
an imminent breach of peace. Such orders constitute C
reasonable restriction upon the freedom of speech and
expression. This view has been followed consistently by this
Court. To put it with greater clarity, it can be stated that the
content is not the only concern of the controlling authority but
the time and place of the meeting is also well within its
jurisdiction. If the authority anticipates an imminent threat to D
public order or public tranquility, it would be free to pass
desirable directions within the parameters of reasonable
restrictions on the freedom of an individual. However, it must
be borne in mind that the provisions of Section 144 Cr.P.C. are
attracted only in emergent situations. The emergent power is E
to be exercised for the purposes of maintaining public order. It
was stated by this Court in Ramesh Thapar (supra) that the
Constitution requires a line to be drawn in the field of public
order and tranquility, marking off, may be roughly, the boundary
between those serious and aggravated forms of public disorder F
which are calculated to endanger the security of the State and
the relatively minor breaches of peace of a purely local
significance, treating for this purpose differences in degree as
if they were different in kind. The significance of factors such
as security of State and maintenance of public order is G
demonstrated by the mere fact that the framers of the
Constitution provided these as distinct topics of legislation in
Entry Ill of the Concurrent List of Seventh Schedule to the
Constitution.
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1026 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 45. Moreover, an order under Section 144 Cr.P.C. being
an order which has a direct consequence of placing a
restriction on the right to freedom of speech and expression
and right to assemble peaceably, should be an order in writing
and based upon material facts of the case. This would be the
B requirement of law for more than one reason. Firstly, it is an
order placing a restriction upon the fundamental rights of a
citizen and, thus, may adversely affect the interests of the
parties, and secondly, under the provisions of the Cr.P.C., such
an order is revisable and is subject to judicial review. Therefore,
c it will be appropriate that it must be an order in writing, referring
to the facts and stating the reasons for imposition of such
restriction. In the case of Dr. Praveen Bhai Thogadia (supra),
this Court took the view that the Court, while dealing with such
orders, does not act like an appellate authority over the decision
of the official concerned. It would interfere only where the order
0
is patently illegal and without jurisdiction or with ulterior motive
and on extraneous consideration of political victimization by
those in power. Normally, interference should be the exception
and not the rule.
E 46. A bare reading of Section 144 Cr.P.C. shows that :
(1) It is an executive power vested in the officer so
empowered;
(2) There must exist sufficient ground for proceeding;
F
(3) Immediate prevention or speedy remedy is
desirable; and
(4) An order, in writing, should be passed stating the
G material facts and be served the same upon the
concerned person.
47. These are the basic requirements for passing an order
under Section 144 Cr.P.C. Such an order can be passed
against an individual or persons residing in a particular place
H or area or even against the public in general. Such an order
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can remain in force, not in excess of two months. The A
Government has the power to revoke such an order and
wherever any person moves the Government for revoking such
an order, the State Government is empowered to pass an
appropriate order, after hearing the person in accordance with
Sub-section (3) of Section 144 Cr.P.C. Out of the aforestated B
requirements, the requirements of existence of sufficient ground
and need for immediate prevention or speedy remedy is of
prime significance. In this context, the perception of the officer
recording the desired/contemplated satisfaction has to be
reasonable, least invasive and bona fide. The restraint has to c
be reasonable and further must be minimal. Such restraint
should not be allowed to exceed the constraints of the particular
situation either in nature or in duration. The most onerous duty
that is cast upon the empowered officer by the legislature is
that the perception of threat to public peace and tranquility 0
should be real and not quandary, imaginary or a mere likely
possibility. This Court in the case of Babula/ Parate (supra) had
clearly stated the following view :
"the language of Section 144 is somewhat different. The
test laid down in the Section is not merely 'likelihood' or E
'tendency'. The section says that the magistrate must be
satisfied that immediate prevention of particular acts is
necessary to counteract danger to public safety etc. The power
conferred by the section is exercisable not only where present
danger exists but is exercisable also when there is an F
apprehension of danger."
48. The above-stated view of the Constitution Bench is the
unaltered state of law in our country. However, it needs to be
specifically mentioned that the 'apprehension of danger' is G
again what can inevitably be gathered only from the
circumstances of a given case.
49. Once an order under Section 144 Cr.P.C. is passed,
it is expected of all concerned to implement the said order
H
1028 SUPREME COURT REPORTS [2012] 4 S.C.R.
A unless it has been rescinded or modified by a forum of
competent jurisdiction. Its enforcement has legal consequences.
One of such consequences would be the dispersement of an
unlawful assembly and, if necessitated, by using permissible
force. An assembly which might have lawfully assembled would
B be termed as an 'unlawful assembly' upon the passing and
implementation of such a preventive order. The empowered
officer is also vested with adequate powers to direct the
dispersement of such assembly. In this direction, he may even
take the assistance of concerned officers and armed forces for
c the purposes of dispersing such an assembly. Furthermore, the
said officer has even been vested with the powers of arresting
and confining the persons and, if necessary, punishing them in
accordance with law in terms of Section 129 Cr.P.C. An order
under Section 144 Cr.P.C. would have an application to an
D 'actual' unlawful assembly as well as a 'potential' unlawful
assembly. This is precisely the scope of application and
enforcement of an order passed under Section 144 Cr.P.C.
50. Having noticed the legal precepts applicable to the
present case, it will be appropriate to notice, at this stage, the
E factual matrix advanced by each of the parties to the case
before this Court.
Version put forward by learned Amicus Curiae
51. In 2008, Baba Ramdev was the first person to raise
F the issue of black money publically. The black money outside
the country was estimated at total of Rs.400 lakh crore or nearly
nine trillion US Dollar. On 27th February, 2011, an Anti-
Corruption Rally was held at Ramlila Maidan, New Delhi where
more than one lakh persons are said to have participated. The
G persons present at the rally included Baba Ramdev, Acharya
Balakrishna, Ram Jethmalani, Anna Hazare and many others.
On 20th April, 2011, the President of Bharat Swabhiman Trust,
Delhi Pardesh submitted an application to the MCD proposing
to take Ramlila Maidan on rent, subject to the general terms
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and conditions, for holding a yoga training camp for 4 to 5 A
thousand people between 1st June, 2011 to 20th June, 2011.
He had also submitted an application to the Deputy
Commissioner of Police (Central District) seeking permission
for holding the Yoga Training Camp which permission was
granted by the DCP (Central District) vide his letter dated 25th B
April, 2011. This permission was subject to the terms and
conditions stated therein. Permission letter dated 25th April,
2011 reads as under:-
"With reference to your letter No. Nil, dated C
20.04.2011, on the subject cited above, I am directed to
inform you that your request for permission to organize
Yoga Training Session at Ramlila Ground from 01.06.2011
to 20.06.2011 by Bharat Swabhiman Trust Delhi Pradesh
has been considered and permission is granted for the
same subject to the conditions that there should not be any D
obstruction to the normal flow of traffic and permission from
land owing agency is obtained. Besides this, you will
deploy sufficient numbers of volunteers at the venue of the
function. Further, you are requested to comply with all the
instructions given by Police authorities time to time failing E
which this permission can be revoked at any time."
52. Continuing with his agitation for the return of black
money to the country, Baba Ramdev wrote a letter to the Prime
Minister on 4th May, 2011 stating his intention to go on a fast F
to protest against the Government's inaction in that regard. The
Government made attempts to negotiate with Baba Ramdev
and to tackle the problem on the terms, as may be commonly
arrived at between the Government and Baba Ramdev. This
process started with effect from 19th May, 2011 when the G
Prime Minister wrote a letter to Baba Ramdev asking him to
renounce his fast. The Finance Minister also wrote a letter to
Baba Ramdev informing him about the progress in the matter.
53. On 23rd May, 2011, Baba Ramdev submitted an
application for holding a dharna at Jantar Mantar, which H
1030 SUPREME COURT REPORTS [2012] 4 S.C.R.
A permission was also granted to him vide letter dated 24th May,
2011, which reads as follows:-
"With reference to your letter dated 23.05.2011, on
the subject mentioned above. I have been directed to
inform you that you are permitted dharna/satyagrah at
B
Jantar Mantar on 04.06.2011 from 0800 hrs. to 1800 hrs.
with a very limited gathering."
54. In furtherance to the aforesaid permission, it was
clarified vide letter dated 26th May, 2011 informing the
C organisers that the number of persons accompanying Baba
Ramdev should not exceed two hundred.
55. On 27th May, 2011, the DCP (Central District), on
receiving the media reports about Baba Ramdev's intention to
D organize a fast unto death at the Yoga Training Camp, made
further enquiries from Acharya Virendra Vikram requiring him
to clarify the actual purpose for such huge gathering. His
response to this, vide letter dated 28th May, 2011, was that
there would be no other programme at all, except residential
E yoga camp. However, the Special Branch, Delhi Police also
issued a special report indicating that Baba Ramdev intended
to hold indefinite hunger strike along with 30,000-35,000
supporters and that the organizers were further claiming that
the gathering would exceed one lakh.
F 56. According to Dr. Dhavan, the learned amicus curiae,
there is still another angle to this whole episode. When Baba
Ramdev arrived at Delhi Airport on 1st June, 2011, four senior
ministers of the UPA Government met him at the Airport and
tried to persuade him not to pursue the said fast unto death
G since the Government had already taken initiative on the issue
of corruption.
57. In the meanwhile, large number of followers of Baba
Ramdev had gathered at Ramlila Maidan by the afternoon of
H 4th June, 2011. In the evening of that very day, one of the
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Ministers who had met Baba Ramdev at the Airport, Mr. Kapil A
Sibal, made public a letter from Baba Ramdev's camp calling
off their agitation. This was not appreciated by Baba Ramdev,
as, according to him, the Government had not stood by its
commitments and, therefore, he hardened his position by
declaring not to take back his satyagraha until a proper B
Government Ordinance was announced in place of forming a
Committee. The ministers talked to Baba Ramdev in great
detail but of no avail. It is stated that even the Prime Minister
had gone the extra mile to urge Baba Ramdev not to go ahead
with the hunger strike, promising him to find a "pragmatic and c
practical" solution to tackle the issue of corruption. Various
attempts were made at different levels of the Government to
resolve this issue amicably. Even a meeting of the ministers
with Baba Ramdev was held at Hotel Claridges. It was reported
by the Press/Media that many others supported the stand of
0
Baba Ramdev. It was widely reported that Mr. Sibal had said:
"we hope he honours his commitment and honours his fast. This
Government has always reached out but can also rein in." The
Press reported the statement of the Chief Minister, Delhi as
stated by the officials including Police officers in the words: E
"action would be taken if Baba Ramdev's Yoga Shivir turns into
an agitation field and three-tier security arrangements have
been made for the Shivir which is supported to turn into a
massive satyagraha". Even Anna's campaign endorsed Baba
Ramdev's step. In this background, on 4th June, 2011, Baba
Ramdev's hunger strike began with the motto of 'bhrashtachar F
mitao satyagraha, the key demands being the same as were
stated on 27th February, 2011.
58. As already noticed, Baba Ramdev had been granted
permission to hold satyagraha at Jantar Mantar, of course, with G
a very limited number of persons. Despite the assurance given
by Acharya Virendra Vikram, as noted above, the event was
converted into an Anshan and the crowd at the Ramlila Maidan
swelled to more than fifty thousand. No yoga training was held
for the entire day. At about 1.00 p.m., Baba Ramdev decided H
1032 SUPREME COURT REPORTS (2012] 4 S.C.R.
A to march to Jantar Mantar for holding a dhama along with the
entire gathering. Keeping in view the fact that Jantar Mantar
could not accommodate such a large crowd, the permission
dated 24/26th May, 2011 granted for holding the dhama was
withdrawn by the authorities. Certain negotiations took place
B between Baba Ramdev and some of the ministers on
telephone, but, Baba Ramdev revived his earlier condition of
time-bound action, an ordinance to bring black money back and
the items missing on his initial list of demands. At about 11.15
p.m., it is stated that Centre's emissary reached Baba Ramdev
c at Ramlila Maidan with the letter assuring a law to declare black
money hoarded abroad as a national asset. The messenger
kept his mobile on so the Government negotiators could listen
to Baba Ramdev and his aides. The conversation with Baba
Ramdev convinced the Government that Baba Ramdev will not
D wind up his protest. At about 11.30 p.m., a team of Police, led
by the Joint Commissioner of Police, met Baba Ramdev and
informed him that the permission to hold the camp had been
withdrawn and that he would be detained. At about 12.30 a.m.,
a large number of CRPF, Delhi Police force and Rapid Action
Force personnel, totaling approximately to 5000 (as stated in
E the notes of the Amicus. However, from the record it appears
to be 1200), reached the Ramlila Maidan. At this time, the
protestors were peacefully sleeping. Thereafter, at about 1.10
a.m., the Police reached the dais/platform to take Baba
Ramdev out, which action was resisted by his supporters. At
F 1.25 a.m., Baba Ramdev jumped into the crowd from the stage
and disappeared amongst his supporters. He, thereafter,
climbed on the shoulders of one of his supporters, exhorting
women to form a barricade around him. A scuffle between the
security forces and the supporters of Baba Ramdev took place
G and eight rounds of teargas shells were fired. By 2.10 a.m.,
almost all the supporters had been driven out of the Ramlila
Maidan. The Police sent them towards the New Delhi Railway
Station. Baba Ramdev, who had disappeared from the dais
earlier, was apprehended by the Police near Ranjit Singh
H
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1033
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
Flyover at about 3.40 a.m. At that time, he was dressed in A
sa/war-kameez with a dupatta over his beard. He was taken
to the Airport guest-house. It was planned by the Government
to fly Baba Ramdev in a chopper from Safdarjung Airport.
However, at about 9.50 a.m. the Government shelved this plan
and put him in an Indian Air Force helicopter and flew him out B
of the Indira Gandhi International Airport.
59. Learned amicus curiae has made two-fold
submissions. One on 'facts and pleadings' and the other on
'law'. I may now refer to some of the submissions made on C
facts and pleadings.
60. The Ramlila Maidan provided an accurate barometer
of the country's political mood in 1960s and 1970s which can
be gauged from an article dated 18th August, 2011 in the
Times of India, which stated as under: D
"It was in Ramlila Ground that Jai Prakash Narain along
with prominent Opposition leaders, addressed a
mammoth rally on June 25, 1975, where he urged the
armed forces to revolt against Indira Gandhi's government. E
Quoting Ramdhari Singh Dinkar, JP thundered,
"Singhasan khali karo, ki janta aati hai (Vacate the throne,
for the people are here to claim it)". That very midnight,
Emergency was declared in the country.
Less than two y~ars later, the ground was the venue for F
another Opposition rally that many political commentators
describe as epoch-changing. In February 1977, more than
a month before Emergency was lifted, Opposition leaders
led by Jagjivan Ram - his first public appearance after
quitting the Congress - Morarji Desai, Atal Bihari G
Vajpayee, Charan Singh and Chandrashekar, held a joint
rally.
That the Ramlila Ground provided an accurate barometer
of the country's political mood in the 1960s and 70s can
H
1034 SUPREME COURT REPORTS [2012] 4 S.C.R.
A be gauged from the fact that in 1972, just around three
years before the JP rally, Indira Gandhi addressed a huge
rally here following India's victory over Pakistan in the
Bangladesh war. In 1965, again at a time when the country
was at war with Pakistan, it was from here that then Prime
B Minister Lal Bahadur Shastri gave the slogan 'Jai Jawan
Jai Kisan'.
According to Delhi historian, Ronald Vivian Smith, the
Maidan was originally a pond which was filled up in the
early 1930s so that the annual Ramlila could be shifted
c here from the flood plains behind Red Fort. It quickly
became a popular site for political meetings, with Gandhiji,
Nehru, Sardar Patel and other top nationalist leaders
addressing rallies here.
D According to one account, as Jinnah was holding a Muslim
League rally here in 1945, he heard someone in the crowd
address him as 'Maulana'. He reacted angrily saying he
was a political leader and that honorific should never be
used for him.
E
In the 1980s and 90s, the Boat Club became the preferred
site for shows of strength. But after the Narasimha Rao
government banned all meetings there during the
tumultuous Ayodhya movement, the political spotlight
returned to the site where it originally belonged - the
F Ramlila Ground."
61. Amongst other things, it is a place of protests. In the
Standing Order 309 issued by the Police, it has been stated
that "any gathering of over 50,000 should not be permitted at
G Ramlila Maidan but should be offered the Burari grounds as
an alternative. If, however, the organizers select a park or an
open area elsewhere in Delhi, the same can be examined on
merits."
62. Pointing out certain ambiguities and contradictions in
H
IN RE: RAM LILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1035
SECRETARY, UNION OF !NOIA [SWATANTER KUMAR, J.]
various affidavits filed on behalf of various officers of the A
Government and the Police, learned amicus curiae pointed out
certain factors by way of conclusions:
"It may be concluded that
(i) the ground became a major protest area after the B
government abolished rallies at the Boat Club.
(ii) The police's capacity for Ramlila is 50,000 but it limited
Baba Ramdev's meet to 5000.
(iii) The ground appears to be accommodative but with only
c
one major exit and entrance.
(iv) There are aspects of the material that show
considerable mobilization. But the figure of 5000 inside the
tent is exaggerated. D
(v) The numbers of people in the tent has varied but seems,
according to the Police 20,000 or so at the time of the
incident.
But the Home Secretary suggests 60,000 which is an E
exaggeration.
(vi) The logs etc supplied seem a little haphazard, but some
logs reflect contemporary evidence which shows things to
the courts notice especially. F
63. However, it may be noticed by this Court that as per
the version of the police, point no. (ii) ought to be read as under:
"The capacity for Ramlila Maidan is 50,000 but it limited
Baba Ramdev's meet to 5000." G
64. After noticing certain detailed facts in relation to the
'threat perception of Police' and the 'Trust's perception',
learned Amicus curiae has framed certain questions and has
given record-based information as follows: H
1036 SUPREME COURT REPORTS [2012] 4 S.C.R.
A "(i) Crowd Peaceful and sleeping
6.1 The crowd entered the Ramlila Ground from one
entrance without any hassle and co-operatively [see CD
marked CD003163" of 23 minutes@ 17 minutes] Police
was screening each and every individual entering the
B
premises. On 04th June 2011 many TV new (sic) channel
live coverage shows about two kilometer long queue to
enter the Maidan not even a single was armed, lathi or
baseball bats etc. (pg. 8 Vol. 2)
c 6.2 The crowd is already slept by 10.00-10.30 pm shown
in newspaper photogrtaphs of 05.06.2011 (see pg.9 Vol.1
and Annexure R-9 Pg. 37-38, Vol.2) People requesting the
Police with folded handed (Annexure R-9 Pg. 39 Vol.2) also
recorded in CCTV camera's and in CD 004026 (marked
D is Item 19 pg. 39 Vol.10)
(ii) Did the Police enter abruptly to rescind order and
remove Baba Ramdev.
6.3 The CD marked CD 003163" of 23 minutes on Police
E entry and Baba Ramdev's reaction @ 10 minutes Baba
requests that he should be arrested in the morning with a
warrant;
(iii) Did Baba Ramdev make an incitory speech ?
F
6.4 In general Baba Ramdev's speech carry aggressive
issues but on 04.06.2011,
no provocation was made by Baba Ramdev in any
manner
G
says he is read (sic - ready) to get arrested but his
followers should not be harmed;
asks his women supporters to form a security ring
around him.
H
IN RE: RAMLILAMAIDAN INCIDENTDT4/5.06.2011 v. HOME 1037
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
also request participants not to fight with Police and A
be calm.
also requests Police not to manhandle his supports.
[CDs handed by Trust in Court, the CD marked
"CD003163" of 23 minutes@ 10 minute.] 8
(iv) Was the lathi charged (sic- charged) ordered? Were
lathis used?
6.5 The Police itself admits use of water cannon and tear
gas but denies lathicharge "No lathi charge even ordered c
on public, no organized lathi charge by Policeman @ Vol.3
Pg.8 pr. 30 and 33 at pg.8-9; but evidence shows that lathi
being used see Police beating people with Lathi's (vol.2
photographs at pg.44-45) also in CD004026 marked item
19 pg. 39 Vol. 10@ 47 minute shows lathicharge D
(v) Bricks
6.6 The CD marked R4-TIMEWISE-'B' - @1 hr.11 min
Police entering from the back area and throwing bricks on
the crowd inside the panda!; E
(vi) Water cannon and Teargas
6. 7 Initially Water cannon used after it proved ineffective
tear gas fired towards right side of the stage resulting a
small fire Pr.33 pg. 9 Vol.Ill F
(vii) Injuries
6.8. On injuries the figures are not clear as per
Commissioner of Police, Delhi Affidavit only two persons G
required hospitalization for surgery. (Annexure S colly pg.
49-142 Vol.Ill)
H
1038 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Injured Numbers Released Released Treatment
on first day on second
day
Public 48 41 05 Diagnosis/
persons First aid
B
Policemen 38
Injury-sheets pre-dominantly indicate injuries
received during the minor stampede in one part of
c the enclosure
6.9 Newspaper the TOI gives the figure of 62 person
injured and 29 of the injured were discharged during the
day in LNJP hospital. What about those who were in other
hospitals. Even there are many who iailed to get recorded
D in the list of injured or to approach hospital for the medical
aid. Only 62 injured that too without lathi charge.
6.9 It will also be (sic) demonstrate that
E (i) The crowd does not appear to be armed in anway
- not even with 'baseball' bats.
(ii) The Police (sic - personnel) were throwing bricks.
(iii) Baba Ramdev was abruptly woken up.
F
(iv) The crowd was asleep.
(v) The Police used lathis.
(vi) The crowd also threw bricks.
G
(vii) The Police used tear gas around that time.
It is not clear what occurred first.
(viii) Water cannon was also used by the Police.
H
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1039
SECRETARY. UNION OF INDIA [SWATANTER KUMAR, J.]
VII. Speech. A
7.1 From the Videos of Zee News and ANI, it appears that
Baba Ramdev
(i) exhorted people not to fight with Police.
B
(ii) arrest me in the morning with a warrant.
(iii) requesting first the women then young boys and then
the old to make a protective Kavach around him."
65. On these facts, it is the submission of learned amicus C
curiae that neither the withdrawal of permissions for Ramlila
Maidan and Jantar Mantar nor the imposition of restriction by
passing an order under Section 144 Cr.P.C. was for valid and
good cause/reason. On the contrary, it was for political and
ma/a fide reasons. The purpose was to somehow not permit D
the continuation of the peaceful agitation at any of these places
and for that reason, there was undue force used by the
Government. The entire exercise was violative of the rights of
an individual. A mere change in the number of persons present
and an apprehension of the Police could not be a reasonable E
ground for using teargas and lathi charge and thereby unduly
disturbing the people who were sleeping peacefully upto 1.00
a.m. on the night of 4/5th June, 2011 at Ramlila Maidan.
Referring to the affidavits of the Home Secretary, the Chief
Secretary, the Police officers and the documents on record, the F
contention is that in these affidavits, the deponents do not speak
what is true. The imposition of restriction, passing of the order
under Section 144 and the force and brutality with which the
persons present at the Ramlila Maidan were dispersed is
nothing but a show of power of the State as opposed to a G
citizen's right. Even the test of 'in terrorum' requires to act in a
manner and use such force which is least invasive and is in due
regard to the right to assemble and hold peaceful
demonstration. The threat perception of the authorities is more
of a created circumstance to achieve the ultimate goat of H
1040 SUPREME COURT REPORTS [2012] 4 S.C.R.
A rendering the agitation and the anshan unsuccessful by
colourable exercise of State power.
66. It is also the contention of learned amicus that there
are contradictions in the affidavits filed by the Home Secretary,
B respondent no.1 and the Commissioner of Police, respondent
No. 3. The affidavit of the Chief Secretary, respondent no.2,
cannot be relied upon as he pleads ignorance in relation to the
entire episode at the Ramlila Maidan. According to the Home
Secretary, the Ministry of Home Affairs was routinely monitoring
C the situation and it is not the practice of the Ministry to confirm
the grant of such permission. He also states that 60,000
persons came to the ground as against the estimated entry of
4000 to 5000 people. While according to the affidavit of the
Police Commissioner, as a matter of practice, Delhi Police
keeps the Ministry of Home Affairs duly informed in such
D matters as the said Ministry, for obvious reasons, is concerned
about the preservation of law and order in the capital and
carefully monitors all situations dealing with public order and
tranquility. From the affidavit of the Commissioner of Police, it
is also clear that he was continuously in touch with the senior
E functionaries of the Ministry of Home Affairs and he kept them
informed of the decisions taken by the ACP and DCP to revoke
the permission and promulgate the prohibitory orders under
Section 144 Cr.P.C.
F 67. Besides these contradictions, another very material
fact is that the Home Minister, Shri P. Chidambaram had made
a press statement on 8th June, 2011, relevant part of which
reads :-
"A decision was taken that Shri Baba Ramdev would not
G be allowed to organise any protest or undertake any fast-
unto-death at Ramlila ground and that if he persisted in his
efforts to do so he would be directed to remove himself
from Delhi."
H 68. Reference is also made to the statement of Minister
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1041
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
of HRD Shri Kapil Sibal, who had stated that the Government A
can rein in if persuasion fails.
69. Further, the contention is that these averments/reports
have not been denied specifically in any of the affidavits filed
on behalf of the Government and Delhi Police. The above B
statements and contradictions in the affidavits filed by these
highly placed Government officers should lead to a reasonable
conclusion that the Police had only carried out the decision,
which was already taken by the Government. In these
circumstances, even if there was no direct evidence, the Court C
can deduce, as a reasonable and inescapable inference from
the facts proved, that exercise of power was in bad faith.
Reliance is placed upon the case of S. Pratap Singh v. The
State of Punjab [(1964) 4 SCR 733).
70. The affidavits filed on behalf of the Police and the D
Ministry of Home Affairs are at some variance. The variance
is not of the nature that could persuade this Court to hold that
these affidavits are false or entirely incorrect. This Court cannot
lose sight of a very material fact that maintenance of law and
order in a city like Delhi is not an easy task. Some important E
and significant decisions whicll may invite certain criticism,
have to be taken by the competent authorities for valid reasons
and within the framework of law. The satisfaction of the authority
in such decisions may be subjective, but even this subjective
satisfaction has to be arrived at objectively and by taking into F
consideration the relevant factors as are contemplated under
the provisions of Section 144 Cr.P.C. Some freedom or
leverage has to be provided to the authority making such
decisions. The courts are normally reluctant to interfere in
exercise of such power unless the decision making process is G
ex facie arbitrary or is not in conformity with the parameters
stated under Section 144 Cr.P.C. itself.
71. From the record, it can reasonably be inferred that the
Ministry of Home Affairs and Delhi Police were working in co-
ordination and the Police was keeping the Ministry informed H
1042 SUPREME COURT REPORTS [2012) 4 S.C.R.
A of every development. There is some element of nexus between
the Government's stand on the demands of Baba Ramdev, its
decision in that regard and the passing of an order under
Section 144, Cr.P.C. but, this by itself would not render the
decision as that taken in bad faith. The decision of the Ministry
B or the Police authorities may not be correct, but that ipso facto
would not be a ground for the Court to believe that it was a
colourable and/or ma/a fide exercise of power.
Version of Respondent No.4 :
C 72. Now, I may refer to the case put forward by respondent
No.4, the President of Bharat Swabhiman Trust, Delhi Area
who has filed affidavits on behalf of that party. At the outset, it
is stated in the affidavits filed that Baba Ramdev, the Trust and
his followers are law abiding citizens of the country and never
D had any intention to disturb the law and order, in any manner
whatsoever. Various camps and meetings have been held by
the Trust in various parts of the country and all such meetings
have been peaceful and successful as well. Baba Ramdev had
been travelling the length and breadth of the country explaining
E the magnitude of the problem of corruption and black money
and failure of the Government to take effective steps. The anti-
corruption movement had been at the forefront of the meetings
held by Baba Ramdev at different places. Baba Ramdev is
stated to have participated in a meeting against corruption at
F Jantar Maniar on 14th November, 2010 where more than
10,000 people had participated. Similar meetings were
organized at Ramlila Maidan on 30th January, 2011 and 27th
February, 2011, which also included a march to Jantar Mantar.
None of these events were perceived by the Government as
G any threat to law and order and, in fact, they were peaceful and
conveyed their theme of anti-corruption. On 4th May, 2011,
Baba Ramdev had written a letter to the Prime Minister stating
his intention to go on fast to protest against the Government's
inaction against bringing back the black money. This was
responded to by the Prime Minister on 19th May, 2011
H
IN RE: RAMU LA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1043
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
assuring him that the Government was determined to fight with A
the problem of corruption and black money in the economy and
illegal deposits in the foreign countries and asking him to drop
the idea of going on a hunger strike till death. On 20th May,
2011, the Trust had written a letter to the Police seeking
permission to hold a fast unto death at Jantar Mantar protesting B
against the Government's inaction against corruption. The
Finance Minister had also written a letter to Baba Ramdev on
20th May, 2011 regarding the same issue. The dates of
applying for permission to hold Yoga camp and to hold dhama
at Jantar Mantar and dates of granting of such permissions are c
not in dispute. The above-noticed dates of applying for
permission and to hold dharna at Jantar Mantar and their
consequential approval are not disputed by this respondent.
According to this respondent, the Police had attempted to
make a huge issue that the permission granted to the Trust was D
to hold a yoga camp of approximately 5,000 persons and not
a fast with thousands of persons attending. It is submitted by
this respondent that Police was concerned with the
maintenance of law and order, free flow of traffic, etc. The use
of land was the concern of the owner of the land, in the present
case, the Municipal Corporation of Delhi (MCD). The Trust had E
applied to the MCD requesting it for giving on renUlease the
Ram Ii la Maidan for the period commencing from 1st June,
2011 to 20th June, 2011. Before grant of its permission, the
MCD had written to the Trust that they should obtain NOC from
the Commissioner of Police, Delhi which was duly applied for F
and, as already noticed, obtained by the Trust. Of course, it was
a conditional NOC and the conditions stated therein had been
adhered to, whereafter, the MCD had given the Ramlila maidan
on lease to the Trust. The permission was revoked by the
Police and not by the MCD and the MCD never asked the Trust G
to vacate the premises, i.e., Ramlila Maidan.
73. Before the fateful night i.e. 4th/5th June, 2011, it has
been stated that Baba Ramdev had reached New Delhi and
H
1044 SUPREME COURT REPORTS [2012] 4 S.C.R.
A was received at the Airport by the Ministers. There, at the
Airport itself, an attempt was made to persuade Baba Ramdev
to call off his fast. Thereafter, a meeting was held at Hotel
Claridges on 3rd June, 2011 wherein Baba Ramdev was
assured that the Government would take concrete steps to
B bring back the black money from abroad and they would also
issue an Ordinance, whereupon he should call off his fast.
74. On 4th June, 2011, from 5.00 a.m., the yoga camp
was started at the Ramlila Maidan. This was also telecasted
live on Astha TV and other channels. During the yoga camp,
C Baba Ramdev stated that he will request the Government to
follow the path of Satya and Ahinsa aparigriha and he would
make efforts to eradicate corruption from the country. He also
informed that the black money should be brought back and he
would perform Tapas for the nation in that Shivir. Thousands
D of people had gathered at the venue. The Police was present
there all this time and the number of persons was already much
in excess of 5,000. It is emphasized, in the affidavit of this
respondent, that as per the directions of the Police, only one
entry and one exit gate were being kept open and this gate was
E manned by the Police personnel themselves, who were
screening each and every person who entered the premises.
There was no disturbance or altercation, whatsoever, and the
followers of Baba Ramdev were peacefully waiting in queues
that stretched for over two kilo meters. If the Police wanted to
F limit the number to 5,000, it could have easily stopped the
people at the gate itself. However, no such attempt was made.
75. This conduct of the Police goes to indicate that the
Police action resulted from instructions from the Government
G and their current stand regarding the number of persons present
is nothing but an afterthought. This respondent further asserts
that there was no impediment to the free flow of traffic at any
time on the day of the incident.
76. In the afternoon of 4th June, 2011, when the
H
IN RE: RAMLILAMAIDAN INCIDENTDT.4/5.06.2011 v. HOME 1045
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
preparations for starting the fast at Jantar Mantar began, senior A
officers of Delhi Police requested the officials of the Trust not
to proceed to Jantar Mantar. In obedience of this order, the fast
was begun at Ramlila Maidan itself. During the course of
negotiations with the Government, Baba Ramdev was assured
that their demands in relation to black money and corruption B
would be met. This led to a festive atmosphere at Ramlila
Maidan at around 7.00 p.m. However, later on, the Government
representatives took the stand that no such assurarices were
given by them. Consequently, Baba Ramdev issued a statement
that he will discuss the matter only with the Finance Minister or c
any other responsible person. At around 10.00 p.m., Shanti
Paath was performed and everybody went to sleep as Ashtang
Yoga training was scheduled for 5.00 a.m. next morning. At
around 11.00 p.m., the Personal Assistant of Shri Sibal
delivered a letter to Acharya Balkrishna as Baba Ramdev was
0
asleep at that time, stating as follows :
"This is to clarify that the government is committed to build
a legal structure through which wealth generated illegally
is declared as a national asset and that such assets nare
(sic) subject to confiscation. Laws also provide for E
exemplary punishment for those who perpetrate ill-gotten
wealth. This clearly declares the intention of the
Government.
You have already publicly stated that upon receiving this F
letter, you will end your tapa. We hope that you will honour
this public commitment forthwith."
77. This letter, it is stated, was found to be vague and non-
committal as it was not mentioned in this letter as to what
concrete steps the Government would take to tackle this national G
economic and moral crises. At nearly midnight, by way of an
unprecedented action, an order under Section 144 Cr.P.C.
along with an order cancelling the permission granted earlier
by the Police, was issued, illegally, without any justification and
H
1046 SUPREME COURT REPORTS [2012] 4 S.C.R.
A without adequate warning. It is specifically denied that this order
was served on any officer of the Trust. Around 12.30 a.m., more
than 5000 Policemen (as stated in the notas of the Amicus.
However, from the record it appears to be 1200 police
personnel) had surrounded the tent while everyone inside it was
B sleeping. When asked by Baba Ramdev to furnish the arrest
warrant, the Police refused to do so. Baba Ramdev requested
all the sadhakas to maintain peace and ahinsa.
78. This respondent also alleges that the Police disabled
the public address system. Consequently, Baba Ramdev got
C off the stage and exhorted his followers to maintain peace and
calm. There was an apprehension that the Police intended to
kill Baba Ramdev and therefore, protective cordons were
formed around Baba Ramdev. In order to gain access to Baba
Ramdev, Police launched brutal attack on the crowd, including
D women. Use of teargas shells was also resorted to, causing a
part of the stage to catch fire which could potentially have
caused serious casualties. Policemen were also engaged in
stone pelting and looting. This event lasted till 4.00 a.m. As a
result several people including women received injuries. Spinal
E cord of a woman named Rajbala was broken that left her
paralyzed. Respondent No.4 contends that the media footage
publically available substantiates these contentions.
79. While leaving the Ramlila Maidan, the Police allegedly
F sealed access to the Help Camp at Bangla Saheb Gurudwara.
The press release and interview given by the Minister of Home
Affairs on 8th June, 2011 stresses that the order of externment
of Baba Ramdev from Delhi after cancellation of permission
for the fast/protest was determined in advance and was to be
G enforced in the event he "persisted" in his efforts to protest. The
requirements for an order of externment under Section 47 of
Delhi Police Act, 1978 (for short, 'the DP Act') had, therefore,
not been satisfied at the time of such decision and such order
was not served on Baba Ramdev at any point. They also failed
H to make Baba Ramdev aware of any alleged threat to his life.
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 104 7
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
80. It is stated that the Police have failed to register FIRs A
on the basis of complaints of 50 to 60 people including that
given by one Sri Jagmal Singh dated 10th June, 2011.
81. On these facts, it is the submission of respondent No.4
that it is ironic that persons fasting against failure of the Central
8
Government to tackle the issue of corruption and black money
have been portrayed as threats to law and order. Citizens have
a fundamental right to assembly and peaceful protest which
cannot be taken away by an arbitrary executive or legislative
action. The law prescribes no requirements for taking of
permission to go on a fast. The respondent No.4 suggests that C
in order to establish the truth of the incident, an independent
Commission should be constituted, based on whose report,
legal action to be taken in such situations should be
determined.
D
82. With reference to the above factual averments made
by respondent no.4, the argument advanced by Mr. Ram
Jethmalani, Senior Advocate, is that, in the earlier meetings,
both at the Ramlila Maidan and Jantar Mantar, no untoward
incident had occurred, which could, by any standard, cause an E
apprehension in the mind of the Police that there could occur
an incident, communal or otherwise, leading to public disorder,
in any way. The revocation of permissions as well as the
brutality with which the gathering at the Ramlila Maidan was
dispersed is impermissible and, in any case, contrary to law. F
The Ground belongs to the Municipal Corporation of Delhi and
the permission had duly been granted by the said Corporation
for the entire relevant period. This permission had never been
revoked by the Corporation and as such the Police had no
power to evict the public from the premises of Ramlila Maidan. G
The Police had also granted a 'No Objection Certificate' (NOC)
for holding the meeting and the withdrawal of the NOC is without
any basis and justification. The purpose for granting of
permission by the Police was primarily for the reason that:
H
1048 SUPREME COURT REPORTS [2012] 4 S.C.R.
A a. The Corporation had required such permission to
be obtained;
b. There should be no obstruction to the traffic flow;
and
B c. There should be proper deployment of volunteers
in adequate number.
83. None of the stated conditions, admittedly, had been
violated and as such there was no cause for the Police
c authorities to withdraw the said permission. In fact, it is the
contention on behalf of this respondent that there was no
requirement or need for taking the permission of the Police for
holding such a function. Reliance in this regard is placed upon
the judgment of this Court in the case of Destruction of Public
0 and Private Properties, In Re v. State of Andhra Pradesh and
Ors. [(2009) s sec 212].
84. Even if for the sake of arguments, it is assumed that
there was a requirement for seeking permission from the Police
and the Police had the authority to refuse such a permission
E and such authority was exercised in accordance with law, then
also this respondent and the public at large were entitled to a
clear and sufficient notice before the Police could use force to
disperse the persons present at the site.
F 85. Imposition of an order under Section 144 Cr.P.C. was
neither called for nor could have been passed in the facts and
circumstances of the present case. It is contended that Police
itself was an unlawful assembly. It had attacked the sleeping
persons, after midnight, by trespassing into the property, which
G had been leased to the respondent-Trust. The use of teargas,
lathi charge, brick-batting and chasing the people out of the
Ramlila Maidan were unjustifiable and brutal acts on the part
of the Police. It was completely disproportionate not only to the
exercise of the rights to freedom of speech and expression and
H peaceful gathering, but also to the requirement for the execution
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1049
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
of a lawful order. The restriction imposed, being unreasonable, A
its disproportionate execution renders the action of the Police
unlawful. This brutality of the State resulted in injuries to a large
number of persons and even in death of one of the victims.
There has also been loss and damage to the property.
B
86. Another aspect that has been emphasized on behalf
of this respondent is that there was only one gate for 'Entry' and
one for 'Exit', besides the VIP Entry near the stage. This was
done as per the directive of the Police. The entry gate was
completely manned by the Police and each entrant was frisked C
by the Police to ensure security. Thus, the Police could have
easily controlled the number and manner of entry to the Ramlila
Maidan as they desired. At no point of time there were more
than 50,000 people present at the premises. On the contrary,
in the midnight, when the Police used force to evict the
gathering, there were not even 20,000 people sleeping in the D
tent. Lastly, it is also contended that the people at Ramlila
Maidan were sleeping at the time of the occurrence. They were
woken up by the Police, beaten and physically thrown out of the
tents. In that process, some of the persons lost their belongings
and even suffered damage to their person as well as property. E
Neither was there any threat to public tranquility nor any other
material fact existed which could provide adequate basis or
material to the authorities on the basis of which they could take
such immediate preventive steps, including imposition of the
prohibitory order under Section 144 Cr.P.C. In fact, the order F
was passed in a pre-planned manner and with the only object
of not letting Baba Ramdev to continue his fast at the relevant
date and time. All this happened despite the full cooperation
by Baba Ramdev. He had voluntarily accepted the request of
the Police not to visit Jantar Mantar along with his followers on G
4th June, 2011 itself. Everything in the Ramlila Maidan was
going on peacefully and without giving rise to any reasonable
apprehension of disturbance of public order/public tranquility.
These orders passed and executed by the executive and the
H
1050 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Police did not satisfy any of the essential conditions as
postulated under Section 144 Cr.P.C.
Police Version
87. The Commissioner of Police, Delhi has filed various
B affidavits to explain the stand of the Police in the present case.
I may notice that there is not much variation in the dates on
which and the purpose for which the permissions were granted
by the competent authority as well as the fact that Ramlila
Maidan was given by the MCD to respondent No. 4.
c
88. According to the Police also, the Trust, respondent No.
4, had sought permission to hold yoga camp for 4,000 to 5,000
people from 1st June, 2011 to 20th June, 2011 and the same
was granted subject to the conditions stated above. Baba
0 Ramdev had made a statement in the media indicating his
intention to hold Anshan. Upon seeking clarification by the
DCP, Central District vide letter dated 27th May, 2011, the
Acharya by their letter dated 28th May, 2011 had re-affirmed
their stand that a yoga camp was to be held. It is the case of
E the respondent No.3 that on 30th May, 2011, Special Branch,
Delhi Police had issued a special report that Baba Ramdev
would proceed on an indefinite hunger strike with 30,000-
35,000 persons and, in fact, the organizers of respondent No.
4 were claiming that the gathering may exceed even one lakh
in number.
F
89. The permission to hold the yoga camp was granted
to the respondent No. 4. Citing certain inputs, the DCP issued
a warning to respondent No.4 expressing their concern about
the variance of the purpose as well as that there should be a
G limited gathering, otherwise the authorities would be compelled
to review the permission. The DCP issued law and order
arrangements detailing the requirement of Force for dealing
with such a large gathering.
90. Further, inputs given on 3rd June, 2011 had indicated
H
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1051
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
that Baba Ramdev was being targeted by certain elements so A
as to disrupt communal harmony between Hindus and Muslims.
Advice was made for review and strengthening of security
arrangements. As a result thereto, security of Baba Ramdev
was upgraded to Z+ category vide order dated 3rd June, 2011
and a contingency plan was also drawn. On 4th June, 2011, B
despite assurances, the yoga training was converted into
Anshan at about 1300 hrs. and Baba Ramdev decided to
march to Jantar Mantar for 'Dharna' with the entire gathering,
the permission for which was limited to only 200 people.
Therefore, in view of the huge mass of people likely to come c
to Jantar Mantar, the said permission was withdrawn on 4th
June, 2011.
91. Baba Ramdev refused to accept the order and, in fact,
exhorted his followers to stay back in Delhi and called for more
people to assemble at Ramlila Maidan, which was already full. D
The verbal inputs received by the Joint Commissioner of Police
indicated the possibility of further mobilisation of large number
of people by the next morning. Ramlila Maidan is surrounded
by communally hyper-sensitive localities. Late at night, crowd
had thinned down to a little over 20,000. Since a large number E
of people were expected to gather on the morning of 5th June,
2011, the permission granted to the Trust was also withdrawn
and prohibitory orders under Section 144 Cr.P.C. were issued.
92. In view of the above, the DCP considered it appropriate F
to immediately serve the order on Baba Ramdev requiring him
and the people present to vacate the Ramlila Maidan.
93. According to these affidavits, Force was deployed to
assist the public in vacating the Ramlila Maidan. Buses were
deployed at gates and ambulances, fire tenders, PCR vans G
were also called for. Baba Ramdev refused to comply with the
orders. On the contrary, he jumped into the crowd, asked
women and elderly persons to form a cordon around him in
order to- prevent the Police from reaching him. No hearing was
H
1052 SUPREME COURT REPORTS (2012) 4 S.C.R.
A claimed by Baba Ramdev or any of his associates. This
sudden reaction of Baba Ramdev created commotion and
resulted in melee. Baba Ramdev exhorted his followers not to
leave the Ramlila Maidan. Baba Ramdev, later on along with
his followers, went on to climb the stage which is stated to have
B collapsed. The supporters of respondent No. 4 had stocked the
bricks behind the stage and were armed with sticks and
baseball bats. The crowd started brick-batting and throwing
security gadgets, flower pots etc. at the Police from the stage
resulting in injuries to Policemen and a minor stampede in
c public in a part of the enclosure. Baba Ramdev vanished from
the stage with his female followers. Few members of public
jumped from the stage and got injured. Police exercised
maximum restraint and used minimum force. To disperse the
crowd, they initially used water canons, which when proved
ineffective, teargas shells, only on right side of the stage, were
0
used in a controlled manner.
94. It is stated that this situation continued for around two
hours and the Police did not have any intention to forcibly
evacuate the public from Ramlila Maidan. As Baba Ramdev
E decided to evade the Police, the situation at Ramlila Maidan
became volatile. The print media have given reports on the
basis of incorrect facts or hearsay.
95. It is also stated in this affidavit that total 38 Policemen
F and 48 public persons were injured and according to the
medical reports, public persons sustained injuries during the
minor stampede which occurred in one part of the enclosure.
Most of these persons were discharged on the same date. The
press clipping/reports do not present a complete picture of the
G incident and contained articles based on incorrect facts. The
incident was unfortunate but was avoidable, had the organizers
acted as law abiding citizens and accepted the lawful directions
of the Police.
96. Having stated that the teargas shelling and the other
H
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1053
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.)
force was used as a response to the brick-batting and A
misbehavior by the gathering, it is also averred that the affidavit
filed on behalf of respondent no.4 could not be relied upon as
the person swearing it was admittedly not present at the venue
after 10.30 p.m. on 4th June, 2011. All these actions are stated
to have been taken by the Force in consultation with the senior B
officers and no instructions are stated to have been received
from the Ministry of Home Affairs, although the said Ministry
was kept informed and apprised of the development from time
to time. All this was done in the interest of public order, larger
security concern and preservation of law and order. c
97. Permission of Delhi Police is required by anyone
planning to hold public functions at public places. Delhi Police,
having granted such permission, was fully competent to revoke
it as well as to pass orders under Section 144 Cr.P.C.
The organizers of Respondent no.4 had misled the Police and D
the Special Branch report had clarified the situation on 30th
May, 2011 that the intention was to hold indefinite hunger strike.
It is stated that by the evening of 3rd June, 2011, only 5000
persons had arrived. It is the case of the Police that they had
persuaded Baba Ramdev not to go to Jantar Mantar with his E
followers and, therefore, the dharna at Jantar Mantar was
cancelled. It was the apprehension of the Police that the
gathering would increase several folds by the next morning and
that could raise a major law and order problem and there was
a possible imminent threat to public safety. Thus, the F
permission was withdrawn and order under Section 144
Cr.P.C. was passed. Delhi Police confirms that it had been
communicating information at the level of the Secretary to the
Ministry of Home affairs and any discussion or communication
beyond that level is a matter in the domain of that Ministry itself. G
It was only in consequence of the violent retaliation by the crowd
that use of teargas, water cannons and finally lathi charge was
taken recourse to by the Police. The video footage shows that
a group of supporters of respondent no.4 standing on one side
of the stage started throwing bricks and flower pots, etc. The H
1054 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Police also found the bricks stacked behind the stage. It was
the brick-batting and the atmosphere created by the crowd that
resulted in a minor stampede. Further, it is stated that the
panda/ was open 011 all sides, ceiling was high and there were
enough escape routes and the use of teargas in such a situation
B is not prohibited. Eight teargas shells were used to prevent the
Police from being targeted or letting the situation turn violent
and all precautions were taken before such use. No Police
Officer was found to be hitting any person. Respondent no.4
had been asked to install sufficient CCTV cameras and M/s.
c Sai Wireless removed the cameras and DVRs installed by
them immediately after the incident on 5th June, 2011. The
proprietor had even lodged a complaint at Police Station,
Kamla Market and a case of theft under FIR No. 49 of 2011
was registered. The said concern, upon being called for the
same by a notice under Section 91 Cr.P.C., produced 10
0
DVRs containing more than 190 hours of video. The
investigation of that case revealed that out of 48 cameras
ordered by the organizers, only 44 were installed, 42 were
made operational out of which two remained non-functional and
E recording of one could not be retrieved due to technical
problems. Recording of eight cameras and two DVRs were not
available as these equipments were reportedly stolen, as noted
above. Thus, the recordings from only 41 cameras/DVRs were
available.
F 98. The primary aim of MCD is to earn revenue from
commercial use of land and it is for the Police to take care of
the law and order situation and to regulate demonstrations,
protests, marches etc. No eviction order was passed except
that the permissions were cancelled and order under Section
G 144 Cr.P.C. was made.
99. On 25th July, 2011, another affidavit was filed by the
Commissioner of Police stating that nearly 155 complaints in
writing and/or through e-mail were received by the Police
Station Kamla Market alleging beating by the Police, theft and
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1055
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.)
loss of property i.e. belongings of the complainants, 13 out of A
them were duplicate, 11 anonymous and 35 e-mails were in
the nature of comments. On investigation, only four persons
responded to the notice under Section 91 Cr.P.C, but stated
facts different from what had been noticed in the complaints.
Some complaints were also being investigated in case FIR No. B
45 of 2011 registered at the same Police station.
100. It is further the case, as projected during hearing, that
probably one Smt. Rajbala, who was on the stage with Baba
Ramdev, had fallen from the stage and became unconscious.
This complaint was also received at the Police Station Kamla C
Market and was entered at para No. 26A dated 6th June, 2011.
101. Still, in another affidavit dated 20th September, 2011
filed on behalf of respondent No. 3, it was specifically denied
that any footages had been tampered with. The Police had D
climbed to the stage, firstly, to serve the order and, thereafter,
only when the entire incident was over and it was denied that
Rajbala was beaten by the Police.
102. It is stated that the respondents, including respondent E
No. 4, have isolated a segment of footage wherein few
Policemen are throwing bricks on tents near the stage. It is
stated to be an isolated incident and was a reaction of few
Policemen to a spate of bricks by Baba Ramdev's supporters.
With regard to the injuries and cause of death of Smt. Rajbala
who died subsequent to the issuance of notice by this Court, it
F
is averred that she was given medical aid and was admitted
to the ICU. There was no external injury on her body. It is also
stated that she was offered medical help of Rupees two lakh
which was not accepted. She was a case of "gross
osteoporosis", that too, to the extent that she was being G
managed by "endrocrinologist" during her treatment. As stated,
according to the medical literature, osteoporosis of this degree
could make her bones brittle and prone to fracture even by low
intensity impact.
H
1056 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 103. While relying upon the above averments made in
different affidavits, the submission on behalf of respondent No.
3 is that there being no challenge to the Standing Order 309,
provisions of the DP Act and the Punjab Police Rules and even
the order passed under Section 144 Cr.P.C., the action of Delhi
B Police has to be treated as a reasonable and proper exercise
of power. The organizers of respondent No.4 had
misrepresented the Government and the Police authorities with
regard to holding of the yoga camp. The Trust is guilty of
seeking permission on incorrect pretext. The effort on behalf
c of the Police was that of carefully watching the development
rather than taking any rash decisions and cancelling the
permission earlier than when it was actually cancelled.
104. The right to freedom in a democracy has to be
exercised in terms of Article 19(1 )(a) subject to public order.
D Public order and public tranquility is a function of the State
which duty is discharged by the State in the larger public
interest. The private right is to be waived against public interest.
The action of the State and the Police was in conformity with
law. As a large number of persons were to assemble on the
E morning of 5th June, 2011 and considering the other attendant
circumstances seen in light of the inputs received from the
intelligence agencies, the permission was revoked and the
persons attending the camp at Ramlila Maidan were
dispersed.
F
105. Even if for the sake of argument, it is taken that there
were some stray incidents of Police excessiveness, the act best
can be attributable to individual actions and cannot be treated
or termed as an organizational brutality or default.
G 106. Individual responsibility is different from responsibility
of the Force. Abuse by one may not necessarily be an abuse
of exercise of power by the Force as a whole. The Police had
waited for a considerable time inasmuch as the order
withdrawing the permission was passed at about 9.30 p.m. and
H
IN RE: RAMLILAMAIDAN INCIDENT DT4/5.06.2011 v. HOME 1057
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
was brought to the notice of the representatives of Respondent A
No.4 at about 10.30 p.m. and no action was taken by the Police
till approximately 1 a.m. This was for the fact that the persons
were sleeping and Police wanted them to disperse in a peaceful
manner, but it was the stone pelting, the panic created by the
organisers and the consequent stampede that resulted in B
injuries to some persons. The contention is also that the
organizers are responsible for creating the unpleasant incident
on midnight of 4th/5th June, 2011 and they cannot absolve
themselves of the responsibilities and liabilities arising
therefrom. The Police had acted in good faith and bona fide. c
Therefore, the action of the Police cannot be termed as
arbitrary, ma/a fide or violative of the basic rule of law.
107. Lastly, Mr. Harish Salve, learned senior counsel
appearing for respondent No.3, contended that there are certain
issues which this Court need not dwell upon and decide as they D
do not directly arise for determination in the facts and
circumstances of the present case:
(a) Whether it was necessary for MCD to direct and for
organizers to take permission from Delhi Police? E
(b) Cancellation of permission for holding of Dharnal
agitation at Jantar Mantar.
(c) Validity of the orders passed by the State including
the order passed under Section 144 Cr.P.C. F
108. I have noticed, in some detail, the version of each of
the parties before the Court in response to the suo moto notice.
Before analyzing the respective versions put before the Court
by the parties and recording the possible true version of what G
happened which made the unfortunate incident occur, I wculd
like to notice that I am not prepared to fully accept the last
contention raised by Mr. Harish Salve, in its entirety. Of course,
it may not be necessary for this Court to examine the effect of
the cancellation of permission for Jantar Mantar and validity of H
1058 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the orders passed by the Government, but this Court is certainly
called upon to deal with the question whether it was obligatory
for the organizers, respondent No.4, to seek the permission of
the Police for holding such a large public demonstration.
Therefore, I would be touching the various aspects of this issue
B and would deal with the orders of the State to the extent it is
necessary to examine the main issue in regard to the excessive
use of force and brutality and absolute organizational default
by the Police, if any.
C Findings on Incident of Midnight of 4th/5th June, 2011 and
the Role of Police and Members/followers of Respondent
No.4
109. All National and Delhi Edition newspapers dated 5th
June, 2011 as well as the media reports had reported the
D unfortunate incident that occurred on the midnight of 4th/5th
June, 2011 at Ramlila Maidan in Delhi. On the night of 4th June,
2011, all the men and women, belonging to different age
groups, who had come to Ramlila Maidan to participate in the
Yoga Training Camp called as 'Nishu/k Yoga Vigyan Shivif,
E were comfortably sleeping at the Ramlila Maidan, when
suddenly at about midnight, the people were woken up. The
Joint Commissioner of Police sought to serve the order revoking
the permission granted to hold the said yoga camp and
imposing Section 144 Cr.P.C., purportedly to curb any agitation
F at the Ramlila Maidan. There was commotion at the Ramlila
Maidan. Persons who had suddenly woken up from sleep could
not know where and how to go. It appears that Baba Ramdev
did not receive the orders. However, some of the officials of
the Bharat Swabhiman Trust were made aware of the orders.
G Thereafter, the Police made an attempt to disperse the
gathering at about and after 1.00 a.m. on 4th/5th June, 2011.
110. They are stated to have resorted to use of teargas
and lathi charge in order to disperse the crowd as they were
unable to do so in the normal course. Since there was protest
H by the people and some violence could result, the Police used
IN RE: RAMLILAMAIDAN INCIDENT DT.415.06.2011 v. HOME 1059
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
teargas and lathi charge to ensure dispersement of the A
assembly which had, by that time, been declared unlawful. As
a result of this action by the Police, a number of men and women
were injured, some seriously. This also finally resulted into the
death of one Smt. Rajbala.
B
111. This action of the Police was termed as brutal and
uncalled for by the Press. Headlines in the various newspapers
termed this unfortunate incident as follows:
Times of India dated 6th June, 2011 :
c
'Why Centre went from licking to kicking',
'Ramleela Ground never saw so much drama',
'She may be paralyzed for life'.
D
'Women not spared, we were blinded by smoke'
'Cops claim terror alert to justify midnight raid'
'Swoop Not Sudden, cops trailed Ramdev for 3 days'
'After eviction they chant and squat on road' E
'Protestors Armed with bricks, baseball bats Cops'
Indian Express dated 6th June, 2011 :
'Baba Gives UPA a Sleepless Summer' F
'Week Ago, Home, Delhi Police told Govt : look at plan
the show'
'Getting Ramdev Out'
G
'Yielding and bungling - Cong (Weak) Core Group'
112. This event was described with great details in these
news items and articles, along with photographs. Besides the
fact that large number of persons were injured and some of H
1060 SUPREME COURT REPORTS [2012] 4 S.C.R.
A them seriously, there was also damage to the property. The
question raised before this Court, inter a/ia, included the loss
and damage to the person and property that resulted from such
unreasonable restriction imposed, its execution and invasion
of fundamental right to speech and expression and the right to
B assembly, as protected under Articles 19(1 )(a) and 19(1 )(b). It
is contended that the order was unreasonable, restriction
imposed was contrary to law and the entire exercise by the
Police and the authorities was an indirect infringement of the
rights and protections available to the persons present there,
c including Article 21 of the Constitution.
113. These events and the prima facie facts stated above,
persuaded this Court to issue a suo moto notice vide its order
dated 6th June, 2011. This notice was issued to the Home
Secretary, Union of India, the Chief Secretary, Delhi
D Administration and the Police Commissioner of Delhi to show
cause and file their personal affidavits explaining the conduct
of the Police authorities and the circumstances which led to the
use of such brutal force and atrocities against the large number
of people gathered at Ramlila Maidan. In reply to the above
E notice, different affidavits have been filed on behalf of these
authorities justifying their action. A notice was issued to Bharat
Swabhiman Trust vide order dated 20th June, 2011. The
application for intervention on behalf of Rajbala (now deceased)
was allowed vide order dated 29th August, 2011. They filed
F their own affidavit. In order to ensure proper independent
assistance to the Court, the Court also appointed an amicus
curiae and Dr. Dhavan accepted the request of the Court to
perform this onerous job.
G 114. Having taken into consideration the version of each
party before this Court, I would now proceed to limn the facts
and circumstances emerging from the record before the Court
that led to the unfortunate incident of the midnight of 4/Sth June,
2011. Without any reservation, I must notice that in my
considered view, this unfortunate incident could have been
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1061
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
avoided by proper patience and with mutual deliberations, A
taken objectively in the interest of the large gathering present
at Ramlila Maidan. Since this unfortunate incident has occurred,
I have to state with clarity what emerges from the record and
the consequences thereof.
B
115. As already noticed, the yoga camp at the Ramlila
Maidan had begun with effect from 1st June, 2011 and was
continuing its normal functioning with permission from the Police
as well as with due grant of licence by the MCD. Undoubtedly,
respondent No.4 had the permission to also hold a dharna at
Jantar Mantar on 4th June, 2011 to raise a protest in relation C
to various issues that had been raised by Baba Ramdev in his
letters to the Government and in his address to his followers.
These permissions had been granted much in advance. As a
response to the pamphlets issued and the inputs of the
intelligence agencies, the DCP (Central District) Delhi had D
expressed certain doubts vide his letter dated 27th May, 2011
asking for clarification as to the actual number of persons and
the real purpose for which Ramlila Maidan would be used from
1st June, 2011. To this, respondent No.4 had promptly replied
stating that there will be no other event except the residential E
yoga camp. However, keeping in view the information received,
the Deputy Commissioner of Police, Central District, vide his
letter dated 1st June, 2011 had issued further directions for
being implemented by respondent No.4 and reiterated his
earlier requirements, including that number of the gathering F
should remain within the limits conveyed. In this letter, it was
also indicated that the authorities may review the position, if
necessary. However, on 3rd June, 2011, it had been noticed
that a huge gathering was expected in the programme and also
that the inputs had been received that Baba Ramdev would sit G
on an indefinite hunger strike with effect from 4th June, 2011
in relation to the issues already raised publically by him. After
noticing various aspects, including that various terrorist groups
may try to do something spectacular to hog publicity, respondent
no.3 made a very objective assessment of the entire situation H
1062 SUPREME COURT REPORTS (2012] 4 S.C.R.
A and issued a detailed plan of action to ensure smooth
functioning of the agitation/yoga camp at Ramlila Maidan
without any public disturbance. The objectives stated in this
planned programme have duly been noticed by me above.
B 116. All this shows that the authorities had applied their
mind to all aspects of the matter on 2nd June, 2011 and had
decided to permit Baba Ramdev to go on with his activities. In
furtherance to it, the Deputy Commissioner of Police, Central
District had also issued a restricted circular as contingency
C plan. It is obvious from various letters exchanged between the
parties that as on 3rd June, 2011, there had been a clear
indication on behalf of the authorities concerned that Baba
Ramdev could go on with his plans and, in fact, proper plans
had been made to ensure security and regulation of traffic and
emergency measures were also put in place. As I have already
D indicated, there is nothing on record to show, if any information
of some untoward incident or any other intelligence input was
received by the authorities which compelled them to invoke the
provisions of Section 144 Cr.P.C., that too, as an emergency
case without any intimation to the organizers and without
E providing them an opportunity of hearing. The expression
'emergency' even if understood in its common parlance would
mean an exigent situation (See Black's Law Dictionary -
Twentieth Edn.); A serious, unexpected and potential
dangerous situation requiring immediate action (See Concise
F Oxford English Dictionary - Eleventh Edn.). Such an emergent
case must exist for the purpose of passing a protective or
preventive order. This may be termed as an 'emergency
protective order' or an 'emergency preventive order'. In either
of these cases, the emergency must exist and that emergent
G situation must be reflected from the records which were before
the authority concerned which passed the order under Section
144 Cr.P.C. There are hardly any factual averments in the
affidavit of the Commissioner of Police which would show any
such emergent event happening between 3rd and 4th June,
H 2011.
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1063
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
117. Similarly, nothing appears to have happened on 4th A
June, 2011 except that the permission to hold a dharna at
Jantar Mantar granted to respondent no.4 was withdrawn and
the Police had requested Baba Ramdev not to proceed to
Jantar Mantar with the large number of supporters, which
request was acceded to by Baba Ramdev. He, in fact, did not B
proceed to Jantar Mantar at all and stayed at Ramlila Maidan.
118. It is also noteworthy that after his arrival on 1st June,
2011 at the Airport, Baba Ramdev met few senior ministers of
the Government in power. He also had a meeting with some
ministers at Hotel Claridges on 3rd June, 2011. The issues C
·aised by Baba Ramdev were considered and efforts were
admittedly made to dissuade Baba Ramdev from holding
Satyagraha at Jantar Mantar or an indefinite fast at Ramlila
Maidan. However, these negotiations failed. According to the
reports, the Government failed to keep its commitments, while D
according to the Government, Baba Ramdev failed to keep up
his promise and acted contrary even to the letter that was given
by him to the ministers with whom he had negotiated at Hotel
Claridges. Thus, there was a deadlock of negotiations for an
amicable resolution of the problems. E
119. This is the only event that appears to have happened
on 3rd and 4th June, 2011. On the morning of 4th June, 2011,
the yoga camp was held at the Ramlila Maidan peacefully and
without disturbing public order or public tranquility. After the F
day's proceedings, the large number of people who were
staying at the Ramlila Maidan, went to sleep in the Shamiana
itself where due arrangements had already been made for their
stay. Beds were supplied to them, temporary toilets were
provided and water tanks and arrangements of food had also G
been made. The footages of the CCTV cameras, videos and
the photographs, collectively annexed as Annexure-9 to the
affidavit of respondent No.4, establish this fact beyond any
doubt that all persons, at the relevant time, were peacefully
sleeping.
H
1064 SUPREME COURT REPORTS [2012] 4 S.C.R.
I\ 120. According to the Police, on 4th June, 2011, Baba
Ramdev had delivered a speech requesting people from
various parts of the country to come in large number and join
him for the Satyagrah. The order withdrawing the permission
for holding a yoga shivir at the Ramlila Maidan was passed at
B 9.30 p.m. The Police reached the Ramlila Maidan in order to
inform the representatives of respondent No.4 about the
passing of the said order, after 10.30 p.m. At about 11.30 p.m.,
on the same date, the executive authority passed an order
under Section 144 Cr.P.C. The Police officers came to serve
C this order upon the representatives of respondent No.4 much
thereafter. The footages of the CCTV Camera Nos. 2, 3, 4, 7,
8, 9, 12, 15, 17, 18 and 32 show that even at about 1.00 a.m.
in the night of 4th/5th June, 2011, people were sleeping
peacefully. The Police arrived there and tried to serve the said
order upon the representatives of respondent No.4 as well as
0
asked for Baba Hamdev, who was stated to be taking rest in
his rest room. However, the action of the Police officers of going
on the stage and of some of them moving where people were
sleeping obviously caused worry, fear and threat in the minds
of the large number of persons sleeping in the tent. It is the
E conceded position before this Court that nearly 15,000 to
20,000 persons were present in the tent at the relevant time.
121. The CCTV footages clearly show the Police officers
talking to Baba Ramdev and probably they wanted to serve the
F said orders upon him. However, Baba Ramdev withdrew from
the deliberations and jumped from the stage amidst the crowd.
By this time, a large number of persons had gathered around
the stage. After climbing on to the shoulders of one of his
followers, Baba Ramdev addressed his followers. He exhorted
G them to form a cordon around him in the manner that the women
forming the first circle, followed by youth and lastly by rest of
his supporters. This circle is visible in the evidence placed
before the Court. I do not consider it necessary to refer to the
speech of Baba Ramdev to the crowd in any greater detail.
H Suffice it to note that while addressing the gathering, Baba
IN RE: RAMLILAMAIDAN INCIDENTDT4/5.06.2011 v. HOME 1065
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
Ramdev referred to his conversations with the Government, A
urged the crowd to chant Gayatri Mantra, maintain Shanti and
not to take any confrontation with the Police. He further stated
that he would not advise the path of hinsa, but at the same time,
he also stated about his talks with the Government and
reiterated that he will not leave, unless the people so desired B
and it was the wish of God. He also chanted the Gayatri
Mantra, and wished all the people around him. At the same
time, it is also clear from the evidence of CCTV Camera's
footage and the photographs, that Baba Ramdev had referred
to the failure of his talks with the Government and his desire to c
continue his Anshan. He also, in no uncertain terms, stated
'Babaji will go only if people wanted and the God desires it.'
Another significant part of Baba Ramdev's speech at that
crucial time was that he urged the people not to have any
confrontation with the Police and that he had no intention/mind 0
to follow the path of hinsa or to instigate quarrel with the
authorities. By this time, all persons present in the tent had
already woken up and were listening to Baba Ramdev
interacting with the Police. Some people left while a large
number of people were still present in the shamiana. According E
to the Police, brick batting started from one corner of the stage
and it was only in response thereto, they had fired the teargas
shells on and around the stage. In all, eight teargas shells were
fired. According to the Police, they did not resort to any lathi
charge and, in fact, they had first used water cannons.
According to respondent No.4, the Police had first fired teargas F
shells, then lathi charged the persons present and never used
water cannons. According to them, the Police even threw bricks
from behind the stage at the people and the control room and
it was in response thereto that some people might have thrown
bricks upon the Police. G
122. What is undisputable before this Court is that the
Police as well as the followers of Baba Ramdev indulged into
brick batting. Teargas shells were fired at the crowd by the
Police and, to a limited extent, the Police resorted to /athi H
1066 SUPREME COURT REPORTS [2012] 4 S.C.R.
A charge. After a large number of Police personnel, who are
stated to be more than a thousand, had entered the Ramlila
Maidan and woken up the persons sleeping, there was
commotion, confusion and fear amongst the people. Besides
that, it had been reported in the Press that there was lathi
B charge. Men and women of different age groups were present
at the Ramlila Maidan. The photographs also show that a large
number of Police personnel were carrying /athis and had
actually beaten the persons, including those sitting on the
ground or hiding behind the tin shed, with the same. CCTV
c Camera No. 5 shows that the Police personnel were also
throwing bricks. The same camera also shows that even the
followers of Baba Ramdev had used the fire extinguishing gas
to create a curtain in front, when they were throwing bricks at
the Police and towards the stage. The CCTV cameras also
show the Police pushing the persons and compelling them to
0
go out. The Police personnel can also be seen breaking the
barriers between the stage and the ground where the people
were sitting during the yoga sessions. The photographs also
show some Police personnel lifting a participant from his legs
and hands and trying to throw him out. The photographs also
E show an elderly sick person being attended to and carried by
the volunteers and not by the Police.
123. The documents on record show that some of the
Police personnel certainly abused their authority, were unduly
F harsh and violent towards the people present at the Ramlila
Maidan, whereas some others were, in fact, talking to the
members of the gathering as well as had adopted a helpful
attitude. The brick batting resorted to by both sides cannot be
justified in any circumstances whatsoever. Even if the followers
G of respondent No.4 acted in retaliation to the firing of teargas,
still they had no cause or right in law to throw bricks towards
the stage, in particular, towards the Police and it is a hard fact
that some Police personnel were injured in the process.
Similarly, the use of teargas shells and use of lathi charge by
H the Police, though limited, can hardly be justified. In no case,
IN RE: RAMLILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1067
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
brick batting by the Police can be condoned. They are the A
protectors of the society and, therefore, cannot take recourse
to such illegal methods of controlling the crowd. There is also
no doubt that large number of persons were injured in the action
of the Police and had to be hospitalized. Element of indiscipline
on behalf of the Police can be seen in the footage of the CCTV B
cameras as well as in the log book entries of the Police.
124. At this stage, it will be useful to examine the Police
records in this respect. Police arrangements had been made
in furtherance to the arrangements planned by the Central
District of Police, Delhi dated 2nd June, 2011. Copies of the C
Police log book have been placed on the file. As on 5th June,
2011 at about 1.28 a.m., a message was flashed that the whole
staff of the concerned Police stations shall report to Police
Station Kamla Market immediately. Then, an attempt was made
to arrest Baba Ramdev and an apprehension was expressed D
that there could be some deaths. I may reproduce here the
relevant messages from the Police log book to avoid any
ambiguity:
"District Net
E
Date Start Time Duration Call Detail
05.06.11 03:22:53 00:00:33 R.L. Ground Kami a
market police men are
beating the peoples
Ph.971147860 W/Ct. F
Sheetal No.8174/PCR
TRANSCRIPTION OF DM Net
Dated 04.06.2011 from 200 hrs. to 000 hrs.
G
INFORM C-28, C-31, C-35, C~32 & C-4 AND C-5 THAT THEY
WOULD MEET ME AFTER 30 MIN AND THE 4 SHOs WILL
BRING ABOUT 20 PERSONNEL EACH FROM THEIR PS.
H
1068 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Transcript of DM Net
Extract of Tetra DM Net of Central District. Dated 05/06/11 from
0100 Hrs. to 0500 Hrs. (Taken from the Tetra Recording)
c 50 C2 The force which is stand-
B 218 ing outside at Turkman gate
and Gurunanak Chowk having
gas gun will come inside
through VIP gate instantly
12D c 50
c 225 c 50 12D Understood
c 50 C2 The operator of gas gun which
is send has not reported yet
only driver is sitting operator is
to be send quickly.
D CQ c 50 The officer who has send the
225 gas gun will send the
operator, is driver to operate
it.
12D c 50 Operator of gas gun is to be
E 226 send only driver has reached
there with gas gun.
227 c 50 12 D I don't have gas gun.
c 50 SHOs has already reached
F inside with staff.
227 c 50 C2 How many water canons ~re
there.
227 C2 c 50 Madam water canon is
outside at VIP gate where i
G have informed earlier.
305 c 50 c 24 This is informed that the force
guard 88 Bn. CRPF is neither
obeying any instruction and
nor ready to come at any
H . cost.
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1069
SECRETARY, UNION OF IND!A [SWATANTER KUMAR, J.]
WIRELESS LOG & DIARY Dt.5-6-2011 (Shift Duty 9 AM A
~9PM T-52
Time Call Detail
2:25AM 01-T-52 One injured namely Jagat Muni
s/o Unknown R/o Vlll-Pllana B
(Rohtak) Haryana. Age about
55-60 yrs admitted in JPN
Hospital in unconscious
condition.
c
WIRELESS LOG & DIARY Dt.4/5-6-2011
Time Call Detail
2:20AM L-100 0-1 PCR Call:- that some
casualities happened at RL
Ground. Direct the ambulance. D
0-1 L-100 Noted position at RL Ground
2:28AM 0-1 L-100 Injured not Traceable. Cats
ambulance also searching
injured person. E
WIRELESS LOG & DIARY Dt.4/5-6-2011 L-100
Time Call Detail
SAM Charge of 0-33 taken by ASI
F
Ved Prakash 5150/PCR
0-33 0-1 Note down that in RL Ground
Police is beating the public
persons.
0-1 0-33 Road is blocked through
G
barricades at Ajmeri Gate. We
can't leave the vehicle without
staff.
H
1070 SUPREME COURT REPORTS [2012] 4 S.C.R.
A WIRELESS LOG & DIARY Dt.4/5-6-2011 (Shift Night Duty 8
PM to 8 AM) 0 - 60
Time Call Detail
1:58 0-60 0-1 Police is misbehaving with
Baba Ramdev.
B
WIRELESS LOG & DIARY Dt./4/5-6-2011 (Shift Night Duty 8
PM to 8 AM) 0 - 10
Time Call Detail
8PM Shift Change and charge taken
c by HC Urned Singh No.899/
PCR
2 am 0-1 0-10 From 0-10 SI Jaspal PS
Mangol Puri & Ct. Tarun 3036/
OAP sustained injury and we
are taking them to JPN
D
Hospital.
2.10 0-1 0-10 0-10 told that both SI Jaspal
and Ct Tarun admitted in JPN
Hospital through Duty Ct. Ajay
1195/C.
E
WIRELESS LOG & DIARY Dt.4/5-6-2011 (Shift Night Duty 8
PM to SAM) B - 11
Time Call Detail
2.30AM Two injured persons taken to
F JPN Hospital namely Raj Bala
w/o Jalbeer Rio Gurgaon, Age-
54, Jagdish s/o Asha Nand,
Age-54 yrs.
207 C50 C12D Both of vehicles is to be send,
G water canon is only one
207 C12D C50 Right now only one is asked
about so send only one.
207 C12D C50 Send one. Send one instantly.
If other will be required it will be
H informed.
IN RE: RAMLILA MAIDAN INCIDENT 014/5.06.2011 v. HOME 1071
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
125. The above entries of the Police log book clearly show A
that a number of persons were injured, including Police
personnel, and some of them even seriously. The water
cannons were not available inside the tent and the same were
asked to come towards the VIP gate. They were only two in
number and were asked to be positioned at the VIP entrance. B
In fact, as recorded in one of the above entries, there was only
one water cannon available which was positioned at the VIP
entry gate and the version of the Police that it had first used
water cannons for dispersing the crowd before resorting to the
use of teargas, does not appear to be correct. The teargas c
shells were fired at about 2.20 a.m. as per the footages of the
CCTV cameras and around the same time, the bricks were
thrown by the followers of respondent No.4 upon the Police.
This aggravated the situation beyond control and, thereafter, the
Police acted with greater force and fired more teargas shells
0
and even used lathis to disperse the crowd.
126. Another aspect reflecting the lacuna in planning of the
Police authorities for executing such an order at such odd hour
is also shown in the log book of the Police where at about 2.39
a.m., a conversation between two police officers has been E
recorded. As per this conversation, it was informed "You call
at cellphone and inform 248 that he will also talk and that gate
towards JLN Marg which was to be opened is not open yet".
Another conversation recorded at the same time was "Then
public will go at its own". F
127. When the Police had decided to carry out such a big
operation of evicting such a large gathering suddenly, it was
expected of it to make better arrangements, to cogitate over
the matter more seriously and provide better arrangements.
G
128. From the entries made in the Police log book, certain
acts come to surface. Firstly, that there were inadequate
number of water cannons, as admittedly, there were more than
15,000 persons present at the Ramlila Maidan and secondly,
H
1072 SUPREME COURT REPORTS [2012] 4 S.C.R.
A that the Police had started beating the people. Even the 88th
Bn. of CRPF was not carrying out the orders and there was
chaos at the premises. Even if all the documents filed by the
Police, the Police log book and the affidavits on behalf of the
Police are taken into consideration, it reflects lack of readiness
B on the part of the Police and also that it had not prepared any
action plan for enforcing the order of the executive authority
passed under Section 144 Cr.P.C. It was expected of the
Police to make elaborate, adequate and precise arrangements
to ensure safe eviction of such large number of persons, that
C too, at midnight.
129. Having dealt with this aspect, now I would proceed
to discuss the injuries suffered and the medical evidence
placed before the Court. As per the affidavit of the Police dated
17th June, 2011, total 38 Policemen were injured, some of
D them because of brick batting by the supporters of Baba
Ramdev. 48 persons from public were also injured, 41 of them
were discharged on the same date and 5 on the next day. Only
2 persons, including 1 woman, required hospitalization for
medical treatment and surgery. On the other hand, according
E to respondent no.4, hundreds of persons were injured. However,
they have placed on record a list of the injured persons as
Annexure R -13 wherein names of 55 persons have been given.
Most of the injured persons were taken to Lok Nayak Hospital,
New Delhi. Copies of their medico legal enquiry register/reports
F have been placed on record. Some of these injured persons
were taken to the hospital by the Police while some of them
went on their own. In the medico legal enquiry register relating
to Rajbala, it has been stated that she suffered cervical vertebral
fracture and associated spinal cord damage. She was unable
G to move both limbs, upper and lower, and complained of pain
in the neck. She was treated in that hospital and subsequently
shifted to the ICU where she ultimately died. As per the
postmortem report, the cause of death as opine_d by the doctor
was stated as "Death in this case occurred as a Septicemia,
H following cervical vertebral fracture and associated spinal cord
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1073
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
damage". In some of the reports, it is stated that the patient had A
informed of having suffered injury due to stampede at Ramlila
Maidan. The person who claims to have brought Rajbala to the
hospital, Joginder Singh Bandral, has also filed an affidavit
stating that the Police had suddenly attacked from the stage
side and she had suffered injuries and fell unconscious. B
130. It is undisputed that Rajbala suffered injuries in this
incident. The injuries as described in the medical records are
as follows:-
"Local Examination: c
1. Reddish bluish discolouration below and behind
Left ear & another reddish blue discolouration
In Lateral middle of neck on (L) Side present. D
2. Reddish Bluish Colouration seen below & behind
(R) ear C
3. Large bluish discolouration present over Left
E
buttock
4. Abrasion over Medical aspects of Left ankle.
5. Reddish discolouration over the flexor aspect of
middle of Left forearm" F
131. In addition, the medico legal case sheet of one
Deepak recorded, "alleged c/o assault while on hunger strike
at Ramlila Maidan". He was vomiting, bleeding and had
suffered injuries and was complaining of pain at cervical region
and right thigh. Similar was the noting with regard to one Ajay. G
Both of them had gone to Dr. Ram Manohar Lohia Hospital and
were not accompanied by the Police. A number of such medico
legal case sheets have been placed on record with similar
notings. I do not consider it necessary to discuss each and
H
1074 SUPREME COURT REPORTS [2012] 4 S.C.R.
A every medico legal enquiry sheet or medico legal report. It is
clear from the bare reading of these reports that most of the
persons who were taken to the hospital had suffered injuries
on their hands, back, thighs etc. and were complaining of pain
and tenderness which was duly noticed by the doctors in these
B reports.
132. Constable Satpal had also gone to the hospital.
According to him, he had suffered injury 'a contusion' as a result
of stone pelting at the Ramlila Maidan. Copies of medico legal
C enquiry register in relation to other Police officers have also
been placed on record. Some Police personnel had also
reported to Aruna Asif Ali Government Hospital, Rajpura, Civil
Lines, Delhi and had given the history of being beaten by the
crowd at Ramlila Maidan.
D 133. From these evidence placed on record, it is clear that
both, the members of the public as well as the Police personnel,
had suffered injuries. It is obvious from various affidavits, that
a large number of followers of Baba Ramdev got injured. The
number of these persons was much higher in comparison to
E that of the Police. I may also notice that in the affidavit filed by
the Commissioner of Police, it has been stated that the Police
officers suffered injuries because of brick batting by some
members of the gathering at Ramlila Maidan. However, the
affidavit of the Commissioner of Police is totally silent as to how
F such a large number of persons suffered injuries, including plain
injuries, cuts, open injuries and serious cases like those of
Rajbala and Jagat Muni. According to respondent No.4, at least
five persons had suffered serious injuries including head injury,
fracture of hand, leg and backbone. This included Dharamveer,
G Madanlal Arya, Jagdish, Behen Rajbala, Swami Agnivesh and
Jagat Muni, etc.
134. If this medico legal evidence is examined in light of
the photographs placed on record and the CCTV camera
footages, it becomes clear that these injuries could have been
H
IN RE: RAMU LA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1075
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
caused by /athi charge and throwing of stone by the Police as A
well as the members of the gathering. It cannot be doubted that
some members of the Police force had taken recourse to /athi
charge and in the normal course, a blow from such /athis could
cause the injuries, which the members of the public had
suffered. B
135. I have no hesitation in rejecting the submission on
behalf of the Police that none of the police personnel /athi
charged the people present at Ramlila Maidan. The factum of
lathi charge by some of the police personnel is demonstrated
in the photographs, footages of CCTV cameras as well as from C
the medical evidence on record. One Dr. Jasbir has filed an
affidavit stating that he had made a call from his Cell Phone
No. 9818765641 to No. 100 informing them of Police assaulting
the persons present and the fact that he suffered injury as a
result of lathi blows on his body. He had gone to Lok Nayak D
Hospital where he was medically examined. This medical
record shows that he was assaulted by the Police in Baba
Ramdev's rally where he sustained injuries. The injuries were
described as contusion injuries, one of which, on the lumber
region and was advised x-ray. Even in some of the other E
medical records produced before this Court, it has been
recorded that injuries were caused by blunt objects. This will
go to show that they were not the injuries caused merely by fall
or simply stampede. The veracity of this affidavit was
challenged on the ground that it has been filed belatedly and it F
was not supported by any other record. Both these aspects lose
their significance because in the Police log book filed on record,
call from this number has been shown, secondly, the medical
record of Dr. Jasbir has been placed on record. Also, the
injuries received by the members of the Police force are of the G
kind which could be caused by brick batting. It is further possible
that because of commotion, confusion and fear that prevailed
at the stage during midnight and particularly when people were
sleeping, the injuries could also have been suffered due to
stampede. According to the Police, Rajbala probably had
H
1076 SUPREME COURT REPORTS [2012] 4 S.C.R.
A suffered the fracture of the cervical as she fell from the stage
and fell unconscious. This version does not find support from
the CCTV footages inasmuch as that no elderly lady at all is
seen on the stage during the entire episode shown to the Court.
But, the fact of the matter is that she suffered serious injuries
8 which ultimately resulted in her death. It could be that she
received injury during use of lathis by the Police or when the
crowd rushed as a result of firing of teargas shells, etc.
136. The Police do not appear to have carried her on the
stretcher or helped her in providing transportation to the
C hospital. Precisely who is to be blamed entirely and what
compensation, if any, she is entitled to receive and from whom,
will have to be examined by the court of competent jurisdiction
before whom the proceedings, if any, are taken by the persons
entitled to do so and in accordance with law. Certain disputed
D questions of fact arise in this regard and they cannot be
decided by the court finally without granting opportunity to the
appropriate parties to lead oral and documentary evidence, as
the case may be. For the purposes of the present petition, it is
sufficient for me to note that, prima facie, it was the negligence
E and a limited abuse of power by the police that resulted in
injuries and subsequent death of Smt. Rajbala. Thus, in my
considered view, at least some ad hoc compensation should
be awarded to the heirs of the deceased and other injured
persons as well.
F
137. At this juncture, I would take note of the affidavits filed
by the parties. In the affidavit dated 6th July, 2011 filed on behalf
of Respondent No. 4, it has been specifically stated in
paragraph 17:
G "It must be noted that as per the directions of the Police,
only one entry/exit gate was being kept open and this gate
was manned by the police themselves, who were
screening each and every person who entered the
premises. There was no disturbance or altercation
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1077
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
whatsoever and followers of Baba Ramdevji were A
peacefully waiting in queues that stretched for over two
kilometers. If the Police wanted to limit the number of
participants to 5000 or to any other number, they could
easily have done so at the gate itself. However, they made
no attempt to either curtail the entry of persons or to B
prevent the fast from proceeding."
138. Though an affidavit subsequent to this date has been
filed on behalf of the Police, there is no specific denial or any
counter version stated therein in this regard. This averment C
made in the affidavit of the Respondent No.4 appears to be
correct inasmuch as vide its letter dated 2nd June, 2011, while
granting the permission for holding the rally at Ramlila Maidan,
a condition had been imposed that all persons entering the
Ramlila Maidan should be subjected to frisking and personal
search. Furthermore, map of layout of the Ramlila Maidan filed D
by the learned amicus clearly shows that there was one public
entry gate/public check-in, in addition to the two gates for the
VIP check-in, which were towards the stage. The public entry
was towards the Sharbia Road. From this, it is clear and goes
in line with the situation at the site, exhibited by the photographs E
or the CCTV Cameras at least partially, that there was only one
main entry for the public which was being managed by the
Police.
139. Even according to the Police, it was a huge enclosure F
of nearly 2.5 lakh sq. feet and it had various exits which, of
c9urse, were kept closed and there was a ceiling all over. A
tent of this size with the ceiling thereon, was an enclosure,
where such large number of persons had gathered to
participate in the yoga camp and thereafter, in the Anshan. G
140. It is the version of the Police that they had issued prior
warning, then used water cannons and only thereafter, used the
teargas shells in response to the brick-batting by the members
of the gathering present behind the stage. This stand of the
Police does not inspire confidence. Firstly, it has nowhere been H
1078 SUPREME COURT REPORTS (2012] 4 S.C.R.
A recorded in the CCTV footages that they made any public
announcement of the revocation of the permissions and the
passing of order under Section 144 Cr.P.C. and requested the
people present to leave the Ramlila Maidan. Of course, it is
clear from the record before this Court that effort was made by
B the Police officers, who had a talk with the representatives of
respondent no. 4 as well, for service of order on Baba Ramdev,
who did not accept the order and jumped into the crowd in order
to avoid the service of order as well as his exit from the Ramlila
Maidan. The stand taken by the Police in para 24 of its affidavit
c is that they apprehended a backlash if they made the
announcements themselves and, therefore, they approached
the organizers to inform the public over the PA system. This
itself is not in accordance with the Guidelines framed by the
Police for execution of such orders. The Standing Order 309
contemplates that there should be display of banner indicating
0
promulgation of Section 144 Cr.P.C., repeated use of Public
Address system by a responsible officer-appealing/advising
the leaders and demonstrators to remain peaceful and come
forward for memorandum, their deputation etc. or court arrest
peacefully and requires such announcement to be
E videographed. It further contemplates that if the crowd does not
follow the appeal and turns violent, then the assembly should
be declared as unlawful on the PA System and the same should
be videographed. Warning on PA system prior to use of any
kind of force is to be ensured and also videographed. I find that
F there is hardly any compliance to these terms of this Standing
Order.
141. Use of water cannons by the Police is again a myth.
As I have already noticed from the Police logbook there was
G only one water cannon available which was positioned at the
VIP entrance. Furthermore, even the CCTV camera footages
or the photographs do not show any use of water cannons. I
see no reason for the Police for not making preferential use of
water cannons to disperse the crowd even if they had come to
H the conclusion that it was an unlawful assembly and it was not
IN RE: RAMLILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1079
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
possible to disperse the crowd without use of permissible force A
in the prescribed manner.
142. There is a serious dispute as to whether the teargas
shells were fired in response to the brick-batting by the
members of the assembly from behind the stage or was it in B
the reverse order. The photographs show that there was a
temporary structure behind the stage where bricks were lying
and the same were collected and thrown from there. The CCTV
Camera No. 5 clearly shows that some members of the
assembly (followers of Baba Ramdev) collected the bricks and
then threw the bricks at the Police towards the stage. The first C
teargas shell was fired at about 2.20 a.m. The first brick
probably was thrown from behind the stage by Baba Ramdev's
followers approximately at 2.12 a.m. The teargas shells were
also fired during this time. Before that, some members of the
Police force had used sticks or lathi charged on the people to D
move them out of the Ramlila Maidan. Some photographs
clearly show the Police personnel hitting the members of the
assembly with sticks. The exact time of these incidents is not
available on the photographs. The firing of teargas shells
created greater commotion and fear in the minds of the E
members of the gathering. The violence on the part of the Police
increased with the passage of time and the Police retaliated
to the bricks hurled at them by the members of the assembly
with greater anger and force. This resulted in injuries to both
sides and serious injuries to some of the people and resultant F
death of one of the members of the public.
143. The persons at the realm of affairs of the Police force
have to take a decision backed by their wisdom and
experience whether to use force or exercise greater control and G
restraint while dispersing an assembly. They are expected and
should have some freedom of objectively assessing the
situation at the site. But in all events, this would be a crucial
decision by the concerned authorities. In the present case, the
temptation to use force has prevailed over the decision to
H
1080 SUPREME COURT REPORTS [2012] 4 S.C.R.
A exercise restraint. Rule 14.56 of the Punjab Police Rules (which
are applicable to Delhi) provides that the main principle to be
observed is that the degree of force employed shall be
regulated according,to the circumstances of each case. The
object of the use of force should be to quell the disturbance of
B peace or to disperse the assembly which threatens such
disturbance and has either refused to disperse or shows a
determination not to disperse. Standing Order 152 deals
particularly with the use of tear smoke in dispersal of unlawful
assemblies and processions. This Standing Order concerns
C with various aspects prior as well as steps which are required
to be taken at the time of use of tear smoke. It requires that
before tear smoke action is commenced, a suitable position
should be selected for the squad, if circumstances permit, forty
yards away from the crowd. A regular warning by the officer
should be issued while firing the tear smoke shells, the speed
0
of wind, area occupied by the crowd and the temper of the
crowd, amongst others, should be taken into consideration. It
states that apparently the object of use of force should be to
prevent disturbance of peace or to disperse an unlawful
assembly which threatens such disturbance.
E
144. Normally, it is not advisable to use tear smoke shells
in an enclosure. They should be fired away from the crowd
rather than into the crowd. Unfortunately, the guidelines and
even matters of common prudence have not been taken into
F consideration while firing the teargas shells. The Police Force
and, at least, some members cf the Police Force, have failed
to execute the orders in accordance with the standing orders
and have failed to take various steps that were required to be
taken including use of minimum force, videography of the event,
G display of banner, announcement into the PA system etc.
Similarly, some members of the Force when incited by
provocation or injury, used excessive force, including use of
teargas. It is also clear from the photographs and the CCTV
Cameras that some members of the Force inflicted injuries by
H indulging in uncalled for /athi charge and by throwing stones
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1081
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.)
on the public. It is evident that /athi charge against those A
persons was not called for. For example, in one of the CCTV
Cameras, one individual is surrounded by four-five members
of the Force and then a Police personnel used canning against
that individual.
B
145. I will proceed on the basis that teargas shells were
fired in retaliation to the bricl•-batting by the crowd. Even in that
event, the Police should have made proper announcements.
The Police had sufficient preparedness to protect itself against
such attack and they should have fired the teargas shells to the C
site from where the bricks were coming rather than in front and
on the stage. Once the teargas shells were fired into the tent
where large number of people were present, it was bound to
result in injuries and harm to the public at large. If the authorities
had taken the decision to disperse the crowd by use of teargas,
then they should have implemented that decision with due care D
and precautions that they are required to take under the relevant
guidelines and Rules. It was primarily the firing of the teargas
shells and use of cane sticks against the crowd that resulted
in stampede and injuries to a large number of people.
E
146. Admittedly, when the Police had entered the tent, the
entire assembly was sleeping. It is not reflected in the affidavit
of the Police as to what conditions existed at that time
compelling the authorities to use force. This, in the opinion of
the Court, was a crucial juncture and the possibility of requiring F
the members of the assembly to disperse peacefully in the
morning hours was available with the authorities.
147. This certainly does not mean that throwing of bricks
upon the Police by the members of the assembly can be
justified on any ground. The few persons who were behind the G
stage and threw the bricks, either from the corner of the stage
or from behind the stage, are guilty of the offence that they have
committed. Nothing absolves them of the criminal liability that
entails their actions. Even if tear smoke shells were fired by the
Police first, still the crowd had no justification to throw bricks H
1082 SUPREME COURT REPORTS [2012] 4 S.C.R.
A at the Police and cause hurt to some of the Policemen. The
Police had a duty to keep a watch on the people from the point
of view of maintaining the law and order. It appears that firing
of teargas shells in the direction of the crowd was contrary to
the guidelines and it led to some people getting breathless and
s two of them falling unconscious. This also prevented the people
present there from reaching the exit gates. Similarly, some of
the followers of respondent no.4 became unruly and used
smoke to create a curtain in front of themselves, before they
started throwing bricks at the Police. In the process, they injured
c their fellow participants as well as the Police personnel. The
teargas shells also caused fire on the stage, as is
demonstrated in CCTV camera No. 31 at about 2.22 a.m., and
confirmed by various news report footages. It shows that there
was lack of fire extinguishing systems. The teargas shells also
caused fire in an enclosure with cloth material which could have
0
caught fire that might have spread widely causing serious
bodily injuries to the people present. Undoubtedly, large Police
force was present on the site and even if it had become
necessary, it could have dispersed the crowd with exercise of
E greater restraint and patience.
148. The Police Force has failed to act in accordance with
the Rules and Standing Orders. Primarily, negligence is
attributable to some members of the force. The Police, in
breach of their duty, acted with uncontrolled force. The orders
F were passed arbitrarily by the concerned authorities and, thus,
they are to be held responsible for the consequences in law.
As discussed in this judgment, respondent No. 4, its members
and Baba Ramdev committed breach of their legal and moral
duty and acted with negligence contributing to the unfortunate
G incident rendering themselves liable for legal consequences
resulting therefrom.
149. I may further notice that the conduct of the
representatives of Respondent No.4, as well as of Baba
H Ramdev in jumping from the stage into the crowd, while
IN RE: RAMLILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1083
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
declining to accept the orders and implement them, is contrary A
to the basic rule of law as well as the legal and moral duty that
they were expected to adhere to. Thus, they have to be held
guilty of breach of these legal and moral duties as lnjuria non
excusat injuriam.
B
150. Now, I may have a look at the genuineness/validity
of the 'threat perception' which formed the basis for passing
of the said orders by the State/Police. I have referred to this
aspect in some detail above and suffice it to note here that till
3rd June, 2011, none of the authorities had considered it
appropriate to revoke the permission and pass an ordar under C
Section 144 Cr.P.C. On the contrary, the authorities had
required the organizers to take more stringent measures for
proper security. They had also drawn a proper deployment plan.
It appears that failure of negotiations between the Government
and Baba Ramdev at Hotel Claridges on 3rd June, 2011, left D
its shadow on the decision-making power of the Police. This
proved to be the turning point of the entire episode. If the Police
had apprehended that large number of persons may assemble
at the Ramlila Maidan, this could have been foreseen as a
security threat. Therefore, the proper method for the authorities E
would have been to withdraw the permissions well in time and
enforce them peacefully. It has been left to the imagination of
the Court as to what were the circumstances that led to passing
of orders revoking permission and particularly when even the
MCD had not cancelled or revoked its permission in favour of F
Respondent No.4 to continue with its activity till 20th June,
2011. Great emphasis was placed, on behalf of the Police,
upon the fact that the representatives of Respondent No.4 had
not given the correct information to the Police. This again does
not describe the correct state of affairs. The Intelligence G
Agencies had given all requisite information to Delhi Police and
after taking the same into consideration, Delhi Police had
passed orders on 2nd and 3rd June, 2011 requiring the
organizers to take certain precautionary steps. Another
interesting fact, that I must notice, is that as early as on 20th H
1084 SUPREME COURT REPORTS [2012] 4 S.C.R.
A May, 2011, representatives of Respondent No. 4 had written
to the Additional Commissioner of Police vide Annexure R3
informing them that Baba Ramdev is going on a hunger strike
till death from 4th June, 2011 against the issue of corruption
and other related serious issues. Hundreds of satyagrahis were
B providing their support to him in this hunger-strike and consent
for that was asked. The letter written by Baba Ramdev to the
Prime Minister of the country had also been attached along with
this letter. The Police was aware of the number of persons who
might assemble and the activity that was likely to be carried
c on at Ramlila Maidan as well as Jantar Mantar. Still, after the
receipt of the letter, the Police took no steps to cancel the
permission specifically and the permissions granted continued
to be in force. It was for the police authorities or the
administration to place on record the material to show that there
D was a genuine threat or reasonable bias of communal
disharmony, social disorder and public tranquility or harmony
on the night of 4th June, 2011. However, no such material has
been placed before this Court. Right from Babula/ Parate
(supra}, this Court has taken a consistent view that the
provisions of Section 144 Cr.P.C. cannot be resorted to merely
E on imaginary or likely possibility or likelihood or tendency of a
threat. It has not to be a mere tentative perception of threat but
a definite and substantiated one. I have already recorded that
none of the concerned authorities, in their wisdom, had stated
that they anticipated such disturbance to public tranquility and
F social order that there was any need for cancellation of the
permissions or imposition of a restriction under Section 144
Cr.P.C. as late as till 10.40 p.m. on 4th June, 2011, which then
was sought to be executed forthwith.
G 151. There is a direct as well as implied responsibility upon
the Government to function openly and in public interest. Each
citizen of India is entitled to enforce his fundamental rights
against the Government, of course, subject to any reasonable
restrictions as may be imposed under law. The Government
H can, in larger public interest, take a decision to restrict the
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1085
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
enforcement of freedom, however, only for a valid, proper and A
justifiable reason. Such a decision cannot be arbitrary or
capricious.
152. Another important facet of exercise of such power is
that such restriction has to be enforced with least invasion. I am B
unable to understand and, in fact, there is nothing on record
which explains the extra-ordinary emergency that existed on
midnight of 4th/5th June, 2011 which led the police to resort to
waking up sleeping persons, throwing them out of the tents and
forcing them to disperse using force, cane sticks, teargas C
shells and brick-batting. I am also unable to understand as to
why this enforcement could not even wait till early next morning
i.e. 5th June, 2011. This is a very crucial factor and the onus to
justify this was upon the State and the Police and I have no
hesitation in noticing that they have failed to discharge this
onus. This decision, whether taken by the Police itself or, as D
suggested by the learned amicus, taken at the behest of the
people in power and the Ministry of Home Affairs, was certainly
amiss and a decision which is arbitrary and unsustainable,
would remain so, irrespective of the number of persons or the
hierarchy of the persons in the Government who have passed E
the said decision. I find no error with the Police, to working in
tandem or cooperation with the Ministry of Home Affairs, which
itself is responsible for maintaining the law and order in the
country. I also have to notice that as per the stand taken by all
the parties before this Court, it remains a fact that no F
announcement was made on the midnight of 4th/5th June, 2011
to the huge gathering sleeping to disperse peacefully from the
Ramlila Maidan. It was an obligation of the Police to make
repeated announcements and help the people to disperse. The
Police, admittedly, did not make any such announcements G
because it anticipated a backlash. Baba Ramdev and other
representatives of Respondent No. 4 also did not make such
an announcement, but Baba Ramdev asserted that he would
leave only if the people and the followers wanted him to leave.
I am unable to appreciate this kind of attitude from both sides. H
1086 SUPREME COURT REPORTS [2012] 4 S.C.R.
A It was primarily an error of performance of duty by both sides
and the ultimate sufferer was the public at large.
153. It is true and, without hesitation, I notice that the CCTV
cameras and other documents do show that some of the Police
8 personnel had behaved with courtesy and kindness with the
members of the gathering and had even helped them to
disperse and leave the Rarnlila Maidan. At the same time,
some others had misbehaved, beaten the people with brutality
and caused injuries to the public present at the Ramlila Maidan.
C Thus, I cannot blame the entire Police Force in this regard.
154. The learned amicus raised another issue that the
Home Secretary, Union of India and the Chief Secretary, Delhi
had not filed proper affidavits in relation to the incident. In fact,
the Home Secretary did not file any affidavit till this was raised
D as an issue by the learned counsel appearing for Respondent
No.4. Factually, it is correct. The affidavits filed by the Chief
Secretary, Delhi as well as the Horne Secretary are not proper
in their form and content. The Home Secretary, on the one hand
stated that he had taken charge of the post with effect from 21st
E July, 2011, while, on the other, admitted that he had received
the report from the Special Commissioner of Police. He further
stated that it is not the practice of the Ministry to confirm the
grant of such permission. His affidavit is at variance with the
affidavit of the Police Commissioner. According to him, the
F entry of large number of persons posed a threat to the
gathering, such as, likely stampede and entry of unruly elements
into the crowd. Both these circumstances, as noticed above,
do not stand even remotely to reason. Further, I am somewhat
surprised at the insensitivity reflected in the following lines
G stated in the affidavit of the Home Secretary, 'I state and submit
that the facts suggest that the injuries to a few (out of thousands
gathered as per report) are said to have been caused due to
minor stampede and that there was no manhandling of women,
elderly persons or children. There were 03 women Police
officers of the rank of Deputy Commissioner of Police on duty'.
H
IN RE: RAMLILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1087
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
I have no hesitation in observing that it is the duty of the State A
to ensure that each and every citizen of the country is protected.
Safety of his person and property is the obligation of the State
and his right. In view of the affidavit filed by the Police
Commissioner, where he has owned the entire responsibility
for the entire Police hierarchy, I do not propose to attach much B
significance to this contention. According to the Commissioner,
he informed the Additional Secretary in the Ministry of Home
Affairs of the developments and the latter might have informed
the higher authorities in the said Ministry. I also find no need to
enter into this controversy because there is no legal impediment c
or infirmity in Delhi Police working in coordination and
consultation with the Ministry of Home Affairs as none of them
can absolve themselves of the liability of maintaining social
order, public tranquility and harmony.
155. Mr. P.H. Parekh, learned senior advocate appearing D
for the Government of NCT Delhi, submitted that the power to
issue an order under Section 144 Cr.P.C. is vested in the
Assistant Commissioner of Police in terms of notification dated
9th September, 2010 issued by the Ministry of Home Affairs,
Government of India under sub-section(1)(a) of Section 17 of E
the DP Act. It is further submitted that in terms of Article
239AA(3)(a), the Legislative Assembly of the NCT Delhi has
legislative competence to enact laws on any matter as
applicaete to the Union Territory except in relation to fields
stated at Entries 1, 2 and 18 of List II of the Seventh Schedule F
to the Constitution of India. Thus, the matters relating to Police,
land and public order do not fall within the legislative and
administrative power of the Government of NCT Delhi. The
Home Secretary, in his affidavit, on the other hand, has stated
that the Ministry of Home Affairs neither directed nor is G
consulted by Delhi Police in such Police measures which are
to be taken with a view to keep the law and order situation under
control. He also stated that it is not the practice of the Ministry
to confirm the matters of grant of such permissions. I am unable
to see any merit in these submissions or for that matter even H
1088 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the purpose of such submissions. The Ministry of Home Affairs,
Delhi Government and the Police are not at cross purposes in
relation to the questions of social order and law and order. It is
their cumulative responsibility. The lists in the Seventh Schedule
to the Constitution are fields of legislation. They are
B unconnected with the executive action of the present kind. The
Ministry of Home Affairs, Union of India is not only responsible
for maintaining the law and order but is also the supervisory
and controlling authority of the entire Indian Police Services. It
is the duty of the Union to keep its citizens secure and
C protected. Thus, I consider it unnecessary to express any view
on this argument advanced by Mr. P.H. Parekh.
The scope of an order made under Section 144 Cr.P.C.,
its implications and infirmities with reference to the facts
of the case in hand
D
156. By reference to various judgments of this Court at the
very outset of this judgment, I have noticed that an order passed
in anticipation by the Magistrate empowered under Section 144
Cr.P.C. is not an encroachment of the freedom granted under
E Articles 19(1)(a) and 19(1)(b) of the Constitution and it is not
regarded as an unreasonable restriction. It is an executive
order, open to judicial review. In exercise of its executive power
the executive authority, by a written order and upon giving
material facts, may pass an order issuing a direction requiring
F a person to abstain from doing certain acts or take certain
actions/orders with respect to certain properties in his
possession, if the officer considers that such an order is likely
to prevent or tends to prevent obstruction, annoyance or injury
to any other person. On the bare reading of the language of
G Section 144 Cr.P.C .. it is clear that the entire basis of an action
under this Section is the 'urgency of the situation' and the power
therein is intended to be availed for preventing 'disorder,
obstruction and annoyance', with a view to secure the public
weal by maintaining public peace and tranquility. In the case
H of Gu/am Abbas v. State of Uttar Pradesh [AIR 1981 SC 2198],
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1089
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
the Court clearly stated that preservation of public peace and A
tranquility is the primary function of the Government and the
aforesaid power is conferred on the executive. In a given
situation, a private right must give in to public interest.
157. The Constitution mandates and every Government is 8
constitutionally committed to the idea of socialism, secularism
and public tranquility. The regulatory mechanism contemplated
under different laws is intended to further the cause of this
constitutional obligation. An order under Section 144 Cr.P.C.,
though primarily empowers the executive authorities to pass C
prohibitory orders vis-a-vis a particular facet, but is intended
to serve larger public interest. Restricted dimensions of the
provisions are to serve the larger interest, which at the relevant
time, has an imminent threat of being disturbed. The order can
be passed when immediate prevention or speedy remedy is
desirable. The legislative intention to preserve public peace and D
tranquility without lapse of time, acting urgently, if warranted,
giving thereby paramount importance to the social needs by
even overriding temporarily, private rights, keeping in view the
public interest, is patently inbuilt in the provisions under Section
144 Cr.P.C. E
158. Primarily, the MCD owns the Ramlila Maidan and,
therefore, is holding this property as a public trustee. The MCD
had given permission to use the Ramlila Maidan for holding
yoga shivir and allied activities with effect from 1st June, 2011 F
to 20th June, 2011. The Police had also granted permission
to organize the yoga training session at Ramlila Maidan for the
same period vide its letter dated 25th April, 2011. The
permission was granted subject to the conditions that there
should not be any obstruction to the normal flow of traffic, G
sufficient number of volunteers should be deployed at the venue
of the training camp, permission should be sought from the land
owning agency and all other instructions that may be given by
the Police from time to time should be implemented. Lastly, that
such permission could be revoked at any time.
H
1090 SUPREME COURT REPORTS (2012] 4 S.C.R.
A 159. Vide letter dated 27th May, 2011, the Deputy
Commissioner of Police, Central District, had sought
clarification from the President of respondent No. 4 that the
permission had been granted only for holding a yoga training
camp for 4000 to 5000 persons, but the posters and pamphlets
B circulated by the said respondent indicated that they intended
to mobilize 25,000 persons to support Baba Ram Dev's
indefinite fast at Ramlila Maidan, which was contrary to the
permission sought for. Respondent No. 4, vide letter dated 28th
May, 2011, reiterated and re-affirmed its earlier letter dated
c 20th April, 2011 and stated that there would be no programme
at all, except th~ residential yoga camp. Keeping in view the
facts and the attendant circumstances, the Deputy
Commissioner of Police (Central District) vide his letter dated
1st June, 2011, informed the office bearers of respondent No.
D 4 that in view of the current scenario and the law and order
situation prevailing, they were required to make adequate
arrangements for screening of people visiting the Ramlila
Maidan for yoga shivir and directed further arrangements to be
made as per the instructions contained in that letter. It was
E noticed in the letter of the DCP that a specialized tent of an
area of 2,50,000 sq. ft. was to be erected, a dais was to be
constructed and structures erected were to be duly certified
from the authorized agency. It was also, inter alia, stated that
no provocative speech or shouting of slogan should be allowed
and no fire arms, /athis or swords should be allowed in the
F function and CCTV cameras should also be installed. rt was
further stated that the Trust was to abide by all the directions
issued by the SHO. Again, on 2nd June, 2011, a letter was
written by the Deputy Commissioner of Police noticing certain
drawbacks in the arrangements made by the Trust and
G reiterating the directions passed vide letter dated 1st June,
2011. It was required that the Trust should keep the gathering
within the permissible limits and make necessary arrangements
for checking/frisking of participants and placing of volunteers
in requisite areas. It was also indicated that if the compliance
H is not made, permission shall be subject to review. Certain
IN RE: RAMLILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1091
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
inputs given by the Special Branch of Delhi Police on 30th May, A
2011 stated that Baba Ramdev planned to hold indefinite
hunger strike along with 30,000 to 35,000 supporters with effect
from 4th June, 2011, the birth anniversary of Maharana Pratap,
at the Ramlila Maidan. As per that report, the protest was on
the following issues: B
"1. To bring the black money worth Rs. for 400 lakhs
crores, which is national property.
2. To demand the legislation of strong Lokpal Bill to remove
corruption completely. C
3. Removal of foreign governing system in independent
India so that everyone can get social and economic
justice."
D
160. It was further stated that the gathering may exceed 1
lakh. The letter also indicated that some of the workers would
straightaway reach Jantar Mantar on 4th June, 2011 and would
submit memorandum to the President and the Prime Minister
of India. Expressing the apprehensions on these outputs, it was
indicated in the Report as under:- E
"The volunteers of the said organizations are well
dedicated, tech savvy and using Laptops in their routine
working, with sound financial status of the organization, the
possibility of the gathering of about 1 lakh, as claimed by F
the organizers, cannot be ruled out.
Any minor incident at the venue not only may affect law and
order situation but also may affect peace in the city creating
serious law and order problems. Local Police, therefore,
will have to be extra vigilant. The possibility of some agent G
provocation or subversive elements attempting to cause
disturbance/sabotage by merging with the crowds would
also need to be kept in mind. It should also be noted that
as per reliable inputs, large congregations continue to
H
1092 SUPREME COURT REPORTS [2012] 4 S.C.R.
A remain the top targets of terrorists."
161. The Special Branch, thus, suggested taking of some
precautions like making of adequate security arrangements by
the local Police, deployment of quick response teams,
B ambulances, fire tenders, etc. and to deploy sufficient number
of traffic Police personnel to ensure smooth flow of traffic
around Raj Ghat Red Light, Ramlila Maidan etc. and concluded
as under:-
"Therefore, a sharp vigil, adequate arrangements by local
C police, PCR, Traffic Police are suggested at and near
Ramlila Ground, R.S. Fly-over, enroute, Jantar Mantar to
avoid any untoward incident. Further, Delhi-UP/Haryana
Borders need to be sensitized."
0 162. As is obvious from the above letters and the reports,
nobody had suggested cancellation of the permission granted
by the land owning authority or the Police for continuation of the
activity by respondent No. 4, though they were aware of all the
facts. The Central District of Delhi Police, on 2nd June, 2011
E itself, noticed all the factors and made a report with regard to
the Police arrangements at the Ramlila Maidan. Amongst
others, it stated the following objectives:-
"1 .All the persons will gain entry through DFMDs.
F 2. Every person will be searched/frisked thoroughly to
ensure the security of VIPs/high dignitaries, Govt. property
and general public etc.
3. To ensure clear passage to VIPs and their vehicles with
the assistance of traffic police.
G
4. To ensure that the function is held without interruption.
5. To keep an eye on persons moving in suspicious
circumstances.
H 6. Brief-cases, lighters, matches, bags, umbrellas, tiffin-
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1093
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
boxes etc. be prohibited to be taken by the audience A
insiae the ground. Special attention will be paid on minor
crackers, inside the ground.
7. The area of responsibility will be thoroughly checked by
the Zonal/Sector officers.
B
8. To maintain law and order during the function."
163. In this report itself, it had worked out the details of
deployment, patrolling, timing of duties, supervision and
assembly points etc. In other words, on 2nd June, 2011, the c
Police, after assessing the entire situation, had neither
considered it appropriate to cancel the permissions nor to pass
an order under Section 144 Cr.P.C. On the basis of the input
reports, the Joint Deputy Director, Criminare, had asked for
proper security arrangements to be made for Baba Ramdev D
in furtherance to which the security of Baba Ramdev was
upgraded.
164. In furtherance to the permission granted, the yoga
shivir was held and a large number of persons participated
therein. All went well till 3rd June, 2011 and it is nobody's case E
before the Court that any conditions were violated or there was
any threat, much less imminent threat, to public peace and
tranquility. The yoga camp carried its activities for those days.
165. As already noticed, Baba Ramdev had also been F
granted permission to hold a hunger strike/Satyagrah at the
Jantar Mantar on 4th June, 2011. The restriction placed was
that it should be with a very limited gathering. Further, vide letter
dated 26th May, 2011, the Police had reiterated that the
number of persons accompanying Baba Ramdev should not F
exceed 200. However, vide letter dated 4th June, 2011, the
permission granted in relation to holding of dharna at Jantar
Mantar was revoked, in view of the security, law and order
reasons and due to the large gathering exceeding the number
mentioned in the permission given. Later, on 4th June, 2011,
H
1094 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the permission to organize yoga training camp at the Ramlila
Maidan was also cancelled.
166. It was stated that the activity being in variation to the
permission granted and in view of the security scenario of the
capital city, it may be difficult for the Police to maintain public
8
order and safety. The organisers were further directed that no
follower/participant should assemble at the venue or should hold
hoardings etc., on that very date, an order under Section 144
Cr.P.C. was passed. The order recited that an information had
been received that some people, groups of people may indulge
C in unlawful activities to disturb the peace and tranquility in the
area of Sub-Division Kamla Market, Delhi and it was necessary
to take speedy measures in this regard to s_ave human life,
public order safety and tranquility. This order was to remain in
force for a period of 60 days from the date of its passing.
D
167. During the course of hearing, it was pointed out
before this Court that the order withdrawing the permission was
passed at 9.30 p.m. At 10.30 p.m., the Police went to inform
the representatives of respondent No. 4 about the withdrawal
E of permission and subsequently an order under Section 144
Cr.P.C. was passed at about 11.30 p.m. The Police force
arrived at the site at about 1.00 a.m. and the operation to
disperse the crowd started at 1.10 a.m. on the midnight of 4th/
5th June, 2011.
F
168. It was contended by Mr. Harish Salve, learned senior
counsel, that the decision to withdraw permission is an
administrative decision taken with political influence. The Police
is to work in co-ordination with the Government, including the
concerned Ministry and the Union. The order, being an
G executive order, has been passed bona fide and keeping in
view the larger public interest and it is open to respondent No.
4 or the affected parties to challenge the said order in
accordance with law. It was also urged that this Court may not
deal with the merits of the said order, as there is no challenge
H to these orders. There is no specific challenge raised by
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1095
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
respondent No. 4 and for that matter by any affected party to A
the orders of withdrawal of permission and imposition of
restrictions under Section 144 Cr.P.C. In this view of the matter,
it may not be necessary for this Court to examine these orders
from that point of view. But the circumstances leading to
passing of these orders and the necessity of passing such B
orders with reference to the facts of the present case is a matter
which has to be examined in order to arrive at a final conclusion,
as it is the imposition of these orders that has led to the
unfortunate occurrence of 4th June, 2011. Therefore, while
leaving the parties to challenge these orders in accordance with c
law, if they so desire, I would primarily concentrate on the facts
leading to these orders and their relevancy for the purposes of
passing necessary orders and directions.
169. Though the MCD is the owner of the property in
question, but still it has no role to play as far as maintenance D
of law and order is concerned. The constitutional protection
available to the citizens of India for exercising their fundamental
rights has a great significance in our Constitution. Article 13 is
indicative of the significance that the framers of the Constitution
intended to attach to the fundamental rights of the citizens. Even E
a law in derogation of the fundamental rights, to that extent, has
been declared to be void, subject to the provisions of the
Constitution. Thus, wherever the State proposes to impose a
restriction on the exercise of the fundamental rights, such
restriction has to be reasonable and free from arbitrariness. It F
is for the Court to examine whether circumstances existed at
the relevant time were of such imminent and urgent nature that
it required passing of a preventive order within the scope of
Section 144 Cr.P.C., on the one hand, and on the other, of
imposing a restriction on exercise of a fundamental right by G
respondent No.4 and persons present therein by withdrawing
the permissions granted and enforcing dispersal of the
gathering at the Ramlila Maidan at such odd hour. At this stage,
it will be useful for me to notice another aspect of this case.
Baba Ramdev is stated to have arrived in Delhi on 1st June, H
1096 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 2011 and four senior ministers of the UPA Government met him
at the Airport and attempted to persuade him to give up his
Anshan in view of the Government's initiative on the issue that
he had raised. Efforts were made to dissuade him from going
ahead with his hunger strike on the ground that the Government
B was trying to find pragmatic and practical solution to tackle the
agitated issue. Thereafter, as already noticed, a meeting of the
ministers and Baba Ramdev was held at Hotel Claridges.
However, this meeting was not successful and certain
differences remained unresolved between the representatives
c of the Government and Baba Ramdev. Consequently, Baba
Ramdev decided to continue with his public meeting and
hunger strike. Emphasis has been laid on a Press Release
from the Ministry of Home Affairs stating that a decision was
taken that Baba Ramdev should not be allowed to organize any
protest and, if persisted, he should be directed to be removed
0
from Delhi.
170. These circumstances have to be examined in
conjunction with the stages of passing of the orders under
Section 144 Cr.P.C. in relation to the withdrawal of permission.
E Without commenting upon the Intelligence reports relied upon
by the Police, the Court cannot lose sight of the fact that even
the intelligence agency, the appropriate quarters in the
Government, as well as the Police itself, had neither
recommended nor taken any decision to withdraw the
F permission granted or to pass an order under Section 144
Cr.P.C., even till 3rd June, 2011. On the contrary, after taking
into consideration various factors, it had upgraded the security
of Baba Ramdev and had required the organizers, respondent
No.4, to take various other measures to ensure proper security
G and public order at Ramlila Maidan.
171. It is nobody's case that the directions issued by the
appropriate authority as well as the Police had not been carried
out by the organisers. It is also nobody's case that the
H
IN RE: RAMLILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1097
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
conditions imposed in the letters granting permission were A
breached by the organisers at any relevant point of time. Even
on 3rd June, 2011, the Deputy Commissioner of Police, Central
District, who was the officer directly concerned with the area
in question, had issued a restricted circular containing details
of the arrangements, the objectives and the requirements which B
the deployed forces should take for smooth organization of the
camp at Ramlila Maidan. The threat of going on a hunger strike
extended by Baba Ramdev to personify his stand on the issues
raised, cannot be termed as unconstitutional or barred under
any law. It is a form of protest which has been accepted, both c
historically and legally in our constitutional jurisprudence. The
order passed under Section 144 Cr.P.C. does not give any
material facts or such compelling circumstances that would
justify the passing of such an order at 11.30 p.m. on 4th June,
2011. There should have existed some exceptional D
circumstances which reflected a clear and prominent threat to
public order and public tranquility for the authorities to pass
orders of withdrawal of permission at 9.30 p.m. on 4th June,
2011. What weighed so heavily with the authorities so as to
compel them to exercise such drastic powers in the late hours
of the night and disperse the sleeping persons with the use of E
force, remains a matter of guess. Whatever circumstances have
been detailed in the affidavit are, what had already been
considered by the authorities concerned right from 25th May,
2011 to 3rd June, 2011 and directions in that behalf had been
issued. Exercise of such power, declining the permission has F
to be in rare and exceptional circumstances, as in the normal
course, the State would aid the exercise of fundamental rights
rather than frustrating them.
172. Another argument advanced on behalf of respondent G
No. 4 by Mr. Ram Jethmalani is that the Order under Section
144, Cr.P.C. is a fraud upon law as it is nothing but abdication
· of its authority by Police at the command of the Home Minister,
Mr. P. Chidambaram, as is evident from his above-referred
statements. According to him, the Order under Section 144 H
1098 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Cr.P.C., on the one hand, does not contain material facts while
on the other, issues no directions as contemplated under that
provision. Further it is contended that the Intelligence inputs as
communicated to the Police authorities vide letter dated 3rd
June, 2011 had not even been received by the ACP.
B
173. There is some substance in this submission of Mr.
Ram Jethmalani. It is clear from Annexure 'J' annexed to the
affidavit of the Police Commissioner that the letter of the Joint
Deputy Director dated 3rd June, 2011 referring to threat on
Baba Ramdev and asking the police to review and strengthen
C the security arrangements, was actually received on 6th June,
2011 in the Office of the Commissioner of Police and on 7th
June, 2011 in the Office of the Joint Commissioner of Police.
174. Thus, it could be reasonably inferred that this input
D was not within the knowledge of the officer concerned. I do not
rule out the possibility of the Intelligence sources having
communicated this input to the Police authorities otherwise than
in writing as well. But that would not make much of a difference
for the reason that as already held, the Order under Section 144
E Cr.PC does not contain material facts and it is also evident
from the bare reading of the Order that it did not direct Baba
Ramdev or respondent No. 4 to take certain actions or not take
certain actions which is not only the purpose but is also the
object of passing an Order under Section 144, Cr.P.C.
F 175. Mr. Harish Salve, learned senior counsel, also
contended that the police had neither abdicated its functions
nor acted ma/a fide. The Police had taken its decisions on
proper assessment of the situation and bona fide. Two further
affidavits dated 9th January, 2012 and 10th January, 2012 were
G filed on behalf of the Police. They were filed by the Additional
Deputy Commissioner of Police, Central District and Special
Commissioner of Police, Law and Order, Delhi. These
affidavits were filed primarily with an effort to clarify the details
of the log book, the position of water cannons, entries and exit
H of the tent and number of PCR vans, ambulances arranged for
IN RE: RAMU LA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1099
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
evacuation of the gathering. For example, in the log book dated A
5th June, 2011 at 2.14 am, details have been mentioned,
'Police is arresting to Baba Ramdev in which death can be
caused'. It is stated that this was not the conversation between
two Police officers as such but one Vipen Batra, who
possessed the telephone 8130868526 had rung up. The PCR B
of the Police informed them of the above fact. This, in turn, was
communicated by Constable No.8276 of the PCR to the Police
Station. Similarly, on 5th June, 2011 at 3:22:53, another call
was received by Constable Sheetal No.8174 PCR from the
phone of one Shri Chander Mohan stating that policemen were c
beating people in Ramlila Ground. These explanations may
show that it were the messages received by the PCR vans from
private people who had left Ramlila Ground but there is nothing
on record to show that these messages or reports to the PCRs
were false. In fact, such calls go to substantiate what has been
0
urged by the learned amicus. The affidavits do not improve the
case of the Police any further. As far as the question of ma/a
fides is concerned, I have held that this action or order was not
ma/a fide.
176. Another important aspect which had been pointed out E
during the course of hearing is that even the map annexed to
this affidavit of the Police supports what has been stated on
behalf of respondent No.4 that there was only one main entry
and exit for the public. The VIP entrance and WIP entrance
cannot be construed as entrance for the common man. The F
other exits were not operational owing to commotion, goods
lying, fire of tear gas shells and standing of vehicles outside
which were not permitted to move. This itself is a factor that
goes to show that preparedness on the part of the Police was
not complete in all respects and also that it was not the G
appropriate time to evict people from the Ramlila Ground.
177. In the affidavit filed by the Police, it has been stated
that as a large number of persons were expected to gather on
the morning of 5th June, 2011, it was inevitable for the H
1100 SUPREME COURT REPORTS [2012] 4 S.C.R.
A authorities of the State to enforce the execution of the order
under Section 144 Cr.P.C. and the withdrawal of permission
at the midnight itself. It is also averred that respondent No. 4
had made certain misrepresentations to the authorities. Despite
query from the authority, they had incorrectly informed that only
B a yoga camp will be held at the premises of Ramlila Maidan,
though Baba Ramdev had planned to commence his hunger
strike from 4th June, 2011 at that place in presence of large
gathering.
178. This argument, in my view, does not advance the
C case of the Police any further as Baba Ramdev had already
started his fast and he, as well as all his followers, were
peacefully sleeping when these orders were passed and were
sought to be enforced against them. The Trust might not have
given the exact and correct information to the Police but the
D Police already had inputs from the Intelligence Agencies as well
as knowledge on its own that a hunger strike, in presence of
large number of people, was to start from 4th June, 2011,
which, in fact, did start.
E 179. From the record before this Court, it is not clear as
to why the State did not expect obe~ience and cooperation
from Baba Ramdev in regard to execution of its lawful orders,
particularly when after withdrawal of the permission for holding
dharna at Jantar Mantar, Baba Ramdev had accepted the
F request of the Police not to go to Jantar Mantar with his
followers. The attendant circumstances appearing on record as
on 3rd June, 2011 did not show any intention on their part to
flout the orders of the authorities or to cause any social disorder
or show threat to public tranquility by their action. The doubts
reflected in the affidavits were matters which could have been
G resolved or clarified by mutual deliberations, as it was done in
the past. The directions issued to respondent No.4 on 1st June,
2011 were to ensure proper security of all concerned. Material
facts, imminent threat and requirement for immediate
preventive steps should exist simultaneously for passing any
H
IN RE: RAML.ILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1101
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.)
order under Section 144 Cr.P.C. The mere change in the A
purpose or in the number of persons to be gathered at the
Ramlila Maidan simplicitor could hardly be the cause of such
a grave concern for the authorities to pass the orders late in
the night. In the Standing Order issued by the Police itself, it
has been clarified that wherever the gathering is more than B
50,000, the same may not be permitted at the Ramlila Maidan,
but they should be offered Burari ground as an alternative. This
itself shows that the attempt on the part of the authorities
concerned should be to permit such public gathering by allotting
them alternative site and not to cancel such meetings. This, c
however, does not seem to further the case of the State at all
inasmuch as, admittedly, when the order was passed and the
Police came to the Ramlila Maidan to serve the said order, not
even 15,000 to 20,000 people were stated to be present in the
shamianaltent. In these circumstances, it appears to me that 0
it was not necessary for the executive authorities and the Police
to pass orders under Section 144 Cr.P.C. and withdraw the
permissions. The matter could be resolved by mutual
deliberation and intervention by the appropriate authorities.
180. In view of the affidavits having been filed on behalf of E
Respondent No.3, a person of the rank of Commissioner of
Police, Delhi, wherein he has owned the responsibility for the
events that have occurred from 1st June, 2011 to 4th/5th June,
2011, there is no reason for this Court to attribute any motive
to the said officer that he had worked and carried out the will F
of the people in power.
181. At the very commencement of hearing of the case, I
had made it clear to the learned counsel appearing for the
parties that the scope of the present petition is a very limited G
one. This Court would only examine the circumstances that led
to the unfortunate incident on 4th June, 2011, its consequences
as well as the directions that this Court is called upon to pass
in the peculiar facts and circumstances of the case. Therefore,
it is not necessary for this Court to examine certain contentions H
1102 SUPREME COURT REPORTS [2012] 4 S.C.R.
A raised or sought to be raised by the parties as the same may
more appropriately be raised in an independent challenge to
such orders or claim such other reliefs as they may like to claim
by initiating appropriate legal proceedings.
B 182. This takes me to an ancillary but pertinent question
in context of the said 'discretion', that is exercisable with regard
to the 'threat perception', for the purposes of passing an order
under Section 144 of the Cr.P.C. The activities which, though
unintended have a tendency to create disorder or disturbance
C of public peace by resorting to violence, should invite the
appropriate authority to pass orders taking preventive
measures. The intent or the expected threat should be imminent.
Some element of certainty, therefore, should be traceable in the
material facts recorded and the necessity for taking such
preventive measures. There has to be an objective application
D of mind to ensure that the constitutional rights are not defeated
by subjective and arbitrary exercise of power. Threat perception
is one of the most relevant considerations and may differ as
per the perspective of different parties. In the facts of the
present case, the Police have its own threat perception while
E the Trust has its own point of view in that behalf. As already
noticed, according to the Police, Baba Ramev wanted to do
Anshan, after the negotiations with the. Government had failed,
which was not the purpose for which the permission had been
granted. There was a possibility of the number of persons
F swelling upto 50,000 or more. There could also be possibility
of communal tension as well as a threat to Baba Ramdev's life.
These apprehensions are sought to be dispelled by learned
Amicus curiae stating that this protestldhamalanshan is a right
covered under the freedom of speech. The Ramlila Maidan has
G the capacity of 50,000, which number, admittedly, was never
reached and the doubts in the minds of the authority were
merely speculative. The security measures had been baffed up.
Baba Ramdev had been given Z+ security and, therefore, all
the apprehensions of the authorities were misplaced, much
H less that they were real threats to an individual or to the public
IN RE: RAMLILA MAIDAN INCIDENT DT.415.06.2011 v. HOME 1103
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
at large. The perception of the Trust was that they were carrying A
on their anshan and yoga shivir peacefully, as law abiding
citizens of the country. No complaint had ever been received
of any disturbance or breach of public trust. The events, right
from January 2011, showed that all the camps and protests
organized by the Trust, under the leadership of Baba Ramdev B
had been completed peacefully, without any damage to person
or property and without any disturbance to anyone. The action
of the Police in revoking the permissions as well as that of the
executive authorities in passing the order under Section 144
Cr.P.C. was a colourable exercise of power and was not called c
for in the facts and circumstances of the case.
183. It is also not understandable that if the general 'threat
perception' and likelihood of communal disharmony were the
grounds for revoking the permission and passing the order
under Section 144 Cr.P.C., then why the order passed under D
Section 144 Cr.P.C. permitted all other rallies, processions
which had obtained the Police permission to go on in the area
of the same Police Division. The decision, therefore, appears
to be contradictory in terms.
E
184. There is some merit in the submissions of learned
Amicus curiae. Existence of sufficient ground is the sine qua
non for invoking the power vested in the executive under
Section 144 Cr.P.C. It is a very onerous duty that is cast upon
the empowered officer by the legislature. The perception of F
threat should be real and not imaginary or a mere likely
possibility. The test laid down in this Section is not that of
'merely likelihood or tendency'. The legislature, in its wisdom,
has empowered an officer of the executive to discharge this
duty with great caution, as the power extends to placing a G
restriction and in certain situations, even a prohibition, on the
exercise of the fundamental right to freedom of speech and
expression. Thus, in case of a mere apprehension, without any
material facts to indicate that the apprehension is imminent and
genuine, it may not be proper for the authorities to place such
a restriction upon the rights of the citizen. At the cost of H
1104 SUPREME COURT REPORTS (2012] 4 S.C.R.
A repetition, I may notice that all the grounds stated were
considered at various levels of the Government and the Police
and they had considered it appropriate not to withdraw the
permissions or impose the restriction of Section 144 Cr.P.C.
even till 3rd June, 2011. Thus, it was expected of the authorities
B to show before the Court that some very material information,
fact or event had occurred between 3rd and 4th June, 2011,
which could be described as the determinative factor for tile
authorities to change their mind and pass these orders. I am
unable to accept the contention of the Police that a situation
c had arisen in which there was imminent need to intervene
instantly having regard to the sensitivity and perniciously
perilous consequences that may result, if not prevented
forthwith.
185. The administration, upon taking into consideration the
D intelligence inputs, threat perception, likelihood of disturbance
to public order and other relevant considerations, had not only
prepared its planned course of action but also declared the
same. In furtherance thereto, the Police also issued directions
for compliance to the organizers. The authorities, thus, had full
E opportunity to exercise their power to make a choice permitting
continuation and/or cancellation of the programme and thereby
prohibit the activity on the Ramlila Maidan. However, in their
wisdom, they opted to permit the continuation of the agitation
and holding of the yoga shivir, thereby impliedly permitting the
F same, even in the changed circumstances, as alleged. Quinon
prohibit qua prohibere protest asentire videthir (He who does
not prohibit when he is able to prohibit assents to it).
186. The authorities are expected to seriously cogitate over
G the ·matter in its entirety keeping the common welfare in mind.
In my view, the Police have not placed on record any document
or even affidavits to show such sudden change of
circumstances, compelling the authorities to take the action that
they took. Denial of a right to hold such meeting has to be under
exceptional circumstances and strictly with the object of
H
IN RE: RAMLILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1105
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
preventing public tranquility and public order from being A
disturbed.
Reasonable notice is a requirement of Section 144
Cr.P.C.
187. The language of Section 144 Cr.P.C. does not 8
contemplate grant of any time for implementation of the
directions relating to the prevention or prohibition of certain acts
for which the order is passed against the person(s). It is a
settled rule of law that wherever provision of a statute does not
provide for a specific time, the same has to be done within a C
reasonable time. Again reasonable time cannot have a fixed
connotation. It must depend upon the facts and circumstances
of a given case. There may also be cases where the order
passed by an Executive Magistrate under Section 144 Cr.P.C.
requires to be executed forthwith, as delay in its execution may D
frustrate the very purpose of such an order and may cause
disastrous results like rioting, disturbance of public order and
public tranquility, while there may be other cases where it is
possible, on the principles of common prudence, that some
time could be granted for enforcement and complete E
implementation of the order passed by the Executive Authority
under Section 144 Cr.P.C. If one reads the entire provision of
Section 144 Cr.P.C., then the legislature itself has drawn a
distinction between cases of urgency, where the circumstances
do not admit to serving of a notice in due time upon the person F
against whom such an order is directed and the cases where
the order could be passed after giving a notice to the affected
party. Thus, it is not possible to lay down any straight jacket
formula or an absolute proposition of law with exactitude that
shall be applicable uniformly to all the cases/situations. In fact, G
it may not be judicially proper to state such a proposition. It must
be left to the discretion of the executive authority, vested with
such powers to examine each case on its own merits.
188. Needless to repeat that an order under Section 144
H
1106 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Cr.P.C. affects the right vested in a person and it will not be
unreasonable to expect the authorities to grant adequate time
to implement such orders, wherever the circumstances so
permit. Enforcement of the order in undue haste may
sometimes cause a greater damage than the good that it
B expected to achieve.
189. If for the sake of arguments, I would accept the
contention of the Police that the order withdrawing the
permission as well as the order under Section 144 Cr.P.C. are
C valid and had been passed for good reasons, still the question
remains as to whether the authorities could have given some
reasonable time for implementation/enforcement of the
directions contained in the order dated 4th June, 2011. It is
undisputable and, in fact, is disputed by none that all the
persons who had gathered in the tent at the Ramlila Maidan
D were sleeping when the Police went there to serve the order
passed under Section 144 Cr.P.C. upon the representatives
of the Trust; the order itself having been passed at 11.30 p.m.
on 4th June, 2011. There are serious disputes raised as to the
manner in which the order was sought to be executed by the
E Police. According to respondent No. 4 and the learned amicus,
it was not executed as per the legal framework provided under
the Police Rules and the guidelines issued, whereas according
to the Police, it adhered to its prescribed procedure. This issue
I shall discuss separately. But at this stage, I may notice that
F nothing prevented the authorities from making proper
announcements peacefully requiring the persons gathered at
the Ramlila Maidan to leave for their respective homes early
in the morning and before the yoga camp could resume.
Simultaneously, they could also have prohibited entry into the
G Ramlila Maidan, as the same was being controlled by the
Police itself. No facts or circumstances have been stated which
could explain as to why it was absolutely necessary for the
Police to wake up the people from their sleep and force their
eviction, in a manner in which it has been done at the late hours
H of night. In absence of any explanation and special
IN RE: RAMLILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1107
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
circumstances placed on record, I have no hesitation in c:;oming A
to the conclusion that, in the facts of the present case, it was
quite possible and even desirable for the authorities concerned
to grant a reasonable time for eviction from the ground and
enforcement of th-e orders passed under Section 144 Cr.P.C.
Except in cases of emergency or the situation unexceptionally B
demanding so, reasonable notice/time for execution of the order
or compliance of the directions issued in the order itself or in
furtherance thereto is the pre-requisite.
190. Non-grant of reasonable time and undue haste on the
part of the Police authorities to enforce the orders under Section C
144 Cr.P.C. instantaneously had resulted in the unfortunate
incident of human irony which could have been avoided with
little more patience and control. It was expected of the Police
authorities to bastion the rights of the citizens of the country.
However, undue haste on the part of the Police created angst D
and disarray amongst the gathering at the Ramlila Maidan,
which finally resulted in this sad cataclysm.
Requirement of Police permission and its effect on the
right conferred in terms of Articles 19(1)(a) and 19(1)(b) E
respectively with reference to the facts of the present
~
191. The contention on behalf of respondent No.4 is that
no law requires permission of the Police to go on fast and/or
for the purposes of holding an agitation or yoga camp. The F
Police, therefore, had no power to cancel such permission. The
law is clear that it is the fundamental right of the people to hold
such agitation or morchas in the streets and on public land and
the Police have been vested with no power to place any
restriction, much less an unreasonable restriction, upon the G
exercise of such right. There is no statutory form provided for
seeking permission of the Police before holding any such
public meeting. While relying on the Constitution Bench
judgment of this Court in the case of Himat Lal (supra), the
H
1108 SUPREME COURT REPORTS [2012] 4 S.C.R.
A contention is that the Police cannot be vested with unrestricted
and uniimited power for grant or refusal of permission for holding
such· public functions. In fact, it is stated to be no requirement
of law. In the alternative, the contention is that there was no
condition imposed by the Police for grant of permission, which
B had been violated. Thus, there was no occasion or justification,
not even a reasonable apprehension, for revoking that
permission. The imposi~ion of restriction must be preceded by
some act or threatening behavior which would disturb the public
order or public tranquility.
c 192. The Ramlila Maidan belongs to MCD and they
granted the permission/licence to use the said property from
1st June, 2011 to 20th June, 2011. They having granted the
permission/license to use the said property, never revoked the
same. Thus, the Police had no jurisdiction to indirectly revoke
D the permission which they could not directly revoke and evict
the persons from Ram/ila Maidan forcibly, by brutal assaults
and causing damage to the person and property of the
individuals. The permission had been revoked in violation of
the principles of natural justice. The submission was sought to
E be buttressed by referring to Rule 10 of the MCD Rules which
requires grant of personal hearing before revocation of a
permission granted by the MCD.
193. To contra, the contention raised on behalf of
F respondent No.3, the Commissioner of Police, Delhi, is that
there are specific powers vested in the Police in terms of the
DP Act, the Punjab Police Rules, as applicable to Delhi and
the Standing Orders, according to which the Police is obliged
to maintain public order and public tranquility. They are expected
G to keep a watch on public meetings. There is no act attributable
to the Police which has impinged upon any democratic rights
of the said respondents or the public. The orders passed and
the action taken by the Police, including withdrawal of
permission, was in public interest as weighed against private
interest. Since the Police, as an important organ of the State
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1109
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
Administration, is responsible to maintain public order and A
peace, it will be obligatory upon the persons desirous of holding
such public meetings as well as the concerned authorities to
associate Police and seek their permission for holding such
public satyagraha, camp etc. as safety of a large number of
people may be at stake. According to learned Amicus curiae, B
the withdrawal of permission was for political and ma/a fide
reasons. There existed no circumstances which could justify the
withdrawal of permission. In fact, the contention is that possibility
of Government and Police working in liaison to prevent Baba
Ramdev from holding Satyagrah!Anshan cannot be ruled out c
particularly, when there was no threat, much less an imminent
threat, to disturb public order or tranquility justifying the
withdrawal of permission.
194. I have already discussed that the term 'social order'
has a very wide ambit which includes 'law and order', 'public D
order' as well as 'security of the State'. In other words, 'social
order' is an expression of wide amplitude. It has a direct nexus
to the Preamble of the Constitution which secures justice -
social, economic and political - to the people of India. An
activity which could affect 'law and order' may not necessarily E
affect public order and an activity which might be prejudicial to
public order, may not necessarily affect the security of the State.
Absence of public order is an aggravated form of disturbance
of public peace which affects the general course of public life,
as any act which merely affects the security of others may not F
constitute a breach of public order. The 'security of the State',
'law and order' and 'public order' are not expressions of
common meaning and connotation. To maintain and preserve
public peace, public safety and the public order is unequivocal
duty of the State and its organs. To ensure social security to G
the citizens of India is not merely a legal duty of the State but a
constitutional mandate also. There can be no social order or
proper state governance without the State performing this
function and duty in all its spheres.
H
1110 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 195. Even for ensuring the exercise of the right to freedom
of speech and assembly, the State would be duty bound to
ensure exercise of such rights by the persons desirous of
exercising such rights as well as to ensure the protection and
security of the people i.e. members of the assembly as well as
s that of the public at large. This tri-duty has to be discharged by
the State as a requirement of law for which it has to be allowed
to apply the principle of reasonable restriction, which is
constitutionally permissible.
196. Articles 19(1)(a) and 19(1)(b) are subject to the
C reasonable restrictions which may be imposed on exercise of
such right and which are in the interest of sovereignty and
integrity of India, security of the State, public order, decency or
morality and friendly relations with foreign states. Besides this,
such restriction could also relate to contempt of court,
D defamation or incitement to an offence. Thus, sphere of such
restrictions is very wide. While some may be exercising their
fundamental rights under Articles 19(1)(a) and 19(1)(b) of the
Constitution, others may be entitled to the protection of social
safety and security in terms of Article 21 of the Constitution and
E the State may be called upon to perform these functions in the
discharge of its duties under the constitutional mandate and the
requirements of Directive Principles of State Policy.
197. I have also noticed that in terms of Article 51A of the
F Constitution, it is the constitutional duty of every citizen to perform
the duties as stated under that Article.
198. The security of India is the prime concern of the Union
of India. 'Public order' or 'law and order' falls in the domain of
the State. Union also has the power to enact laws of preventive
G detention for reasons connected with the security of the State,
maintenance of the public order, etc. I am not entering upon the
field of legislative competence but am only indicating Entries
in the respective Lists to show that these aspects are the
primary concern, either of the Union or the State Governments,
H
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1111
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
as the case may be and they hold jurisdiction to enact laws in A
that regard. The Union or the State is expected to exercise its
legislative power in aid of civil power, with regard to the security
of the State and/or public order, as the case may be, with
reference to Entry 9 of List I, Entry 1 of List II and Entries 3 and
4 of List Ill of the Seventh Schedule of the Constitution of India. B
199. These are primarily the fields of legislation, but once
they are read with the constitutional duties of the State under
Directive Principles with reference to Article 38 where the State
is to secure a social order for promotion of welfare of the
people, the clear result is that the State is not only expected C
but is mandatorily required to maintain social order and due
protection of fundamental rights in the State.
. 200. Freedom of speech, right to assemble and
demonstrate by holding dharnas and peaceful agitations are D
the basic features of a democratic system. The people of a
democratic country like ours have a right to raise their voice
against the decisions and actions of the Government or even
to express their resentment over the actions of the Government
on any subject of social or national importance. The E
Government has to respect and, in fact, encourage exercise of
such rights. It is the abundant duty of the State to aid the
exercise of the right to freedom of speech as understood in its
comprehensive sense and not to throttle or frustrate exercise
of such rights by exercising its executive or legislative powers F
and passing orders or taking action in that direction in the name
of reasonable restrictions. The preventive steps 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 G
great caution and free from arbitrariness. It must serve the ends
of the constitutional rights rather than to subvert them.
201. The 'law and order' or 'public order' are primarily and
certainly the concerns of the State. Police, being one of the
H
1112 SUPREME COURT REPORTS (2012] 4 S.C.R.
A most important organs of the State, is largely responsible for
ensuring maintenance of public security and social order. To
urge that the Police have no concern with the holding of public
meetings would be a misnomer and misunderstanding of law.
To discharge its duty, the Police organization of a State is a
B significant player within the framework of law. In this view of the
matter, I may now refer to certain statutory provisions under the
relevant Acts or the Rules. Chapter V of the DP Act requires
special measures for maintenance of public order and security
of State, to be taken by the Police. Sections 28 and 29 of the
C DP Act give power to the Police to make regulations for
regulating traffic and for preservation of order in public places
and to give directions to the public, respectively. Under Section
31 of the DP Act, the Police is under a duty to prevent disorder
at places of public amusement or public assembly or meetings.
D Section 36 contemplates that the Police is to ensure and
reserve streets or other public places for public purposes and
empowers it to authorize erecting of barriers in streets. It also
is vested with the power to make regulations regulating the
conduct or behaviour of persons constituting assemblies or
processions on or along with the streets and specifying, in the
E case of processions, the rules by which and the time and order
in which the same may pass.
202. The power to make regulations relates to regulating
various activities including holding of me/as and public
F an'lusements, in the interest of public order, the general public
or morality. Delhi Police has also issued a Standing Order 309
in relation to 'Regulation of processions and rallies' laying down
the procedure for making application for grant of permission,
its acceptance or rejection and the consequences thereof. This
G Standing Order also provides as to how the proceedings in
furtherance to an order passed under Section 144 Cr.P.C.
should be carried out. It further indicates that the entire tilt of
the regulation is to grant permission for holding processions
or rallies and they need to be accommodated at the
H appropriate places depending upon the number of persons
IN RE: RAMU LA MAI DAN INCIDENT DT.415.06.2011 v. HOME 1113
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.)
proposing to attend the said rally or meeting and the nature of A
the activity that they are expected to carry on. For instance,
under clause (h), as the Parliament Street and Jantar Mantar
cannot accommodate more than 5000 persons, if there is a
larger crowd, they should be shifted to the Ramlila Ground and
if the crowd is expected to be more than 50,000 and the B
number of vehicles would accordingly swell up, then it should
be shifted to a park or another premises, which can safely
accommodate the gathering.
203. The learned Solicitor General appearing for the Union
of India argued that the Ministry of Home Affairs had never told C
the Police to take any action. The Police only kept the senior
officers in the Ministry of Home Affairs informed. What
transpired at the site is correctly stated by the Police in its
affidavit and the extent of judicial review of such action/order
is a very narrow one. According to him, the scope of the suo D
moto petition itself is a very limited one, as is evident from the
order of the Court dated 6th June, 2011. The statement of the
Home Minister relied upon by respondent No. 2 as well as
referred to by the learned Amicus in his submissions has to
be read in conjunction with the explanation given by the Minister E
pf Home Affairs soon after the incident. Thus, no fault or error
is attributable to the Ministry of Home Affairs, Government of
India in relying upon the judgment of this Court in Babula/
Parate (supra), Madhu Limaye (supra), Amitabh Bachchan
Corpn. Ltd. v. Mahi/a Jagran Manch & Ors. [(1997) 7 SCC F
91], R.K. Garg v. Superintendent, District Jail, Saharanpur &
Ors. [(1970) 3 SCC 227] and Dr. Praveen Bhai Thogadia
(supra) to contend that the authorities have to be given some
leverage to take decisions in such situations. There are
sufficient inbuilt safeguards and that the judicial intervention in G
such executive orders has to be very limited. It is his contention
that the present case does not fall in that category.
204. There cannot be any dispute that the executive
authorities have to be given some leverage while taking such
H
1114 SUPREME COURT REPORTS [2012] 4 S.C.R.
A decisions and the scope of judicial review of such orders is very
limited. These propositions of law are to be understood and
applied with reference to the facts of a given case. It is not
necessary for me to reiterate those facts. Suffice it to note that
the action of the Police was arbitrary. The Seven Judges Bench
B of this Court in Madhu Limaye (supra) reiterated with approval
the law enunciated in Babula/ Parate (supra) and further held
that "These fundamental facts emerge from the way the
occasions for the exercise of the power are mentioned.
Disturbances of public tranquility, riots and affray lead to
c subversion of public order unless they are prevented in time.
Nuisances dangerous to human life, health or safety have no
doubt to be abated and prevented ............. ." The fundamental
emphasis is on prevention of situation which would lead to
disturbance of public tranquility, however, action proposed to
be taken should be one which itself is not likely to generate
0
public disorder and disturb the public tranquility. It should be
preventive and not provocative. The Police action in the present
case led to a terror in the minds of members of the assembly
and finally the untoward incident.
E 205. It is also true that a man on the spot and responsible
for maintenance of public peace is the appropriate person to
form an opinion as contemplated in law. But, here the onus was
on the Police Authorities to show existence of such
circumstances at the spot when, admittedly, all persons were
F sleeping peacefully. The courts have to realize that the rights
of the organizers and other members of the Society had to be
protected if a law and order situation was created as a result
of a given situation.
G 206. The learned Solicitor General is correct in his
submissions that the scope of the present suo moto petition
is a limited one. But certainly it is not so limited that the Court
would neither examine facts nor the law applicable but would
accept the government affidavits as a gospel truth. The order
dated 6th June, 2011 has two distinct requirements. Firstly,
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1115
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
relating to the take of the police authorities. Secondly, A
circumstances in which such power with brutality and atrocities
was asserted against large people who had gathered at the
Ramlila ground.
207. While keeping the principles of law in mind, the Court B
essentially has to deliberate upon these two aspects. I am
examining the circumstances which generated or resulted into
the unfortunate situation at the Ramlila Ground on the midnight
of 4th/5th June, 2011. The statement made by the Home
Minister on 8th June, 2011 has already been referred by me C
above. This statement clearly demonstrated the stand of the
Government that in the event Baba Ramdev persisted in his
efforts to go on with the fast, he would be removed. The Police
had been issued appropriate directions under Section 65 of
the DP Act to enforce the same. The decision so had also been
taken by the Delhi Police. The Minister had requested the D
general public to appreciate the constraints and difficult
circumstances under which the Delhi Police had to discharge
its functions. This statement was even clarified with more
reasons and elaborately in the exclusive interview of the Minister
with DD News on the same date on the television. He is stated E
to have said that ultimately when the talks failed or Baba
Ramdev went back on his words, the Police was told to enforce
the decision.
208. There are circumstances and reasons given by the F
Home Minister in his statement for making the statement that
he made. The decision of the Delhi Police in the normal course
of events would have a connection with the declaration made
by the Ministry. Police might have acted independently or in
consultation with the Ministry. Either way, there is no material G
before me to hold that the decision of the Ministry or the Police
was ma/a fide in law or in fact. Upon taking into consideration
the cumulative effect of the affidavits filed on record and other
documentary evidence, I am unable to dispel the argument that
the decision of Ministry of Home Affairs, Union of India reflected
H
1116 SUPREME COURT REPORTS [2012) 4 S.C.R.
A its shadow on the decision making process and decision of the
Police authorities.
209. I shall make it clear even at the cost of repetition that
neither am I adjudicating upon the validity of the order passed
by the Government qua respondent No. 4, nor adjudicating any
8
disputes between Baba Ramdev, on the one hand, and the
Government, on the other. Within the scope of this Court's order
dated 6th June, 2011, I would examine all the relevant facts and
the principles of law applicable for returning the findings in
C relation to the interest of the large public present at the Ramlila
Maidan in the midnight of 4th/5th June, 2011.
210. The learned Amicus also contended that the doctrine
of limited judicial review would not stricto sensu apply to the
present case. The case is not limited to the passing of an order
D under Section 144, Cr.PC, but involves the larger issue of
fundamental freedom and restrictions in terms of Article 19(1)(a)
of the Constitution, as well as the interest of number of injured
persons and Rajbala, the deceased. It is also his contention
that there is a clear abdication of powers by the Police to the
E Ministry of Home Affairs. The order and action of the Police are
patently unjustifiable. If the trajectories of two views, one of the
Ministry and other of the Police point out towards the action
being ma/a fide, be it so, the Court then should decide the
action to be mala fide. Mala fides is a finding which the Court
F can return only upon proper allegations supported by
documentary or other evidence. It is true that if the factual matrix
of the case makes the two trajectories (case of both the
respondents) point towards an incorrect decision, the Court
would be reluctant to return a finding of ma/a fides or abdication
G of power. The decision was taken by the competent authority
and on the basis of inputs and the situation existing at the site.
It may be an incorrect decision taken in somewhat arbitrary
manner and its enforcement may be totally contrary to the rule
of law and common sense. In such an event, the action may
be liable to be interfered with but cannot be termed as ma/a
H fide.
IN RE: RAMLllA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1117
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
211. Furthermore, the constitutional mandate, the statutory A
provisions and the regulations made thereunder, in exercise of
power of delegated legislation, cast a dual duty upon the State.
It must ensure public order and public tranquility with due regard
to social order, on the one hand, while on the other, it must
exercise the authority vested in it to facilitate the exercise of B
fundamental freedoms available to the citizens of India. A right
can be regulated for the purposes stated in that Article itself.
212. In Himat Lal K. Shah (supra), this Court observed
that even in pre-independence days the public meetings have C
been held in open spaces and public streets and the people
have come to regard it as a part of their privileges and
amenities. The streets and public parks existed primarily for
other purposes and the social interest promoted by
untrammelled exercise of freedom of utterance and assembly
in public streets must yield to the social interest which the D
prohibition and regulation of speech are designed to protect.
There is a constitutional difference between reasonable
regulation and arbitrary exclusion. The power of the appropriate
authority to impose reasonable regulation, in order to ensure
the safety and convenience of the people in the use of public E
highways, has never been regarded as inconsistent with the
fundamental right to assembly. A system of licensing as
regards the time and manner of holding public meeting on
public streets has not been regarded as an infringement of a
fundamental right of public assembly or free speech. This F
Court, while declaring Rule 7 of the Bombay Police Rules ultra
vires, stated the principle that it gave an unguided discretion,
practically dependent upon the subjective whims of the
authority, to grant or refuse permission to hold public meeting
on a public street. Unguided and unfettered power is alien to G
proper legislation and even good governance. The principles
of healthy democracy will not permit such restriction on the
exercise of a fundamental right.
213. The contention made by Mr. Ram Jethmalani, learned
Senior Advocate, is that this judgment should be construed to H
1118 SUPREME COURT REPORTS [2012] 4 S.C.R.
A mean that it is not obligatory or even a directory requirement
to take permission of the Police authorities for holding such
public meetings at public places. According to him the Police
have no such power in law. I am not quite impressed by this
submission. This argument, if accepted, can lead to drastic and
B impracticable consequences. If the Department of Police will
have no say in such matters, then it will not only be difficult but
may also be improbable for the Police to maintain law and
order and public tranquility, safeguarding the interest of the
organizers, the persons participating in such public meetings
c as well as that of the public at large.
214. I am bound and, in fact, I would follow the view
expressed by a Constitution Bench of this Court in the case of
Himat Lal (supra) in paragraph 31 of the judgment :
D "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 considerations of public order.
E Therefore, we are unable to hold that the impugned rules
are ultra vires Section 33(1) of the Bombay Police Act
insofar as they require prior permission for holding
meetings."
F 215. The provisions of DP Act read in conjunction with the
Regulations framed and the Standing Orders issued, do
provide sufficient guidelines for exercise of power by the
appropriate authority in granting and/or refusing the permission
sought for. I hasten to add here itself that an application to the
Police has to be examined with greatest regard and objectivity
G in order to ensure exercise of a fundamental right rather than it
being throttled or frustrated by non-granting of such permission.
216. A three-Judge Bench of this Court in the case of
Destruction of Public and Private Properties, In Re (supra)
H primarily laid down the guidelines to effectuate the modalities
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1119
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
for preventive action and adding teeth to the enquiry/ A
investigation in cases of damage to public and private
properties resulting from public rioting. The Court indicated the
need for participation and for taking the Police into the
organizational activity for such purposes. The Court, while
following the principles stated in the case of Union of India v. B
Association of Democratic Reforms [(2002) 3 SCC 696), gave
directions and guidelines, wherever the Act or the Rules were
silent on a particular subject, for the proper enforcement of the
provisions. In paragraph 12 of the judgment, the Court clearly
stated that as soon as there is a demonstration organized, the c
organizers shall meet the Police to review and revise the route
to be taken and lay down the conditions for peaceful march and
protest.
217. Admittedly, the Court in that case was not determining
an issue whether Police permission is a pre-requisite for D
holding such public meetings or not, but still, the Court
mandated that the view of the Police is a requirement for
organization of such meetings or for taking out public
processions. Seeking of such permission can be justified on
the basis that the said right is subject to reasonable restrictions. E
218. Further, exercise of such rights cannot be claimed at
the cost of impinging upon the rights of others. This is how the
restriction imposed is to be regulated. Restriction to a right has
to come by enactment of law and enforcement of such F
restriction has to come by a regulatory mechanism, which
obviously would take within its ambit the role of Police. The
Police have to perform their functions in the administration of
criminal justice system in accordance with the provisions of the
Cr.P.C. and the other penal statutes. It has also to ensure that c;
it takes appropriate preventive steps as well as maintains public
order or law and order, as the case may be. In the event of any
untoward incident resulting into injury to a person or property
of an individual or violation of his rights, it is the Police alone
that shall be held answerable and responsible for the
H
1120 SUPREME COURT REPORTS [2012) 4 S.C.R.
A consequences as may follow in law. The Police is to maintain
and give precedence to the safety of the people as salus populi
supremo lex (the safety of the people is the supreme law) and
salus republicae supremo lex (safety of the State is the
supreme law) coexist and are not only important and relevant
B but lie at the heart of the doctrine that the welfare of an individual
must yield to that of the community. Besides, one fact that
cannot be ignored is that respondent no.4, in furtherance to the
understanding of law, had itself applied to the Deputy
Commissioner of Police, Central District, Darya Ganj, seeking
c sanction for holding of yoga shivir at the Ramlila Maidan.
219. It is difficult for the Court to even imagine a situation
where the Police would be called upon to discharge such heavy
responsibility without having any say in the matter. The persons
who are organizing the public meeting would obviously have
D their purpose and agenda in mind but the Police also have to
ensure that they are able to exercise their right to freedom of
speech and assembly and, at the same time, there is no
obstruction, injury or danger to the public at large.
E 220. Thus, in my considered opinion, associating Police
as a pre-requirement to hold such meetings, dhamas and
protests, on such large scale, would not infringe the fundamental
rights enshrined under Articles 19(1 )(a) and 19(1 )(b) of the
Constitution as this would squarely fall within the regulatory
F mechanism of reasonable restrictions, contemplated under
Articles 19(2) and 19(3). Furthermore, it would help in ensuring
due social order and would also not impinge upon the rights of
the others, as contemplated under Article 21 of the Constitution
of India. That would be the correct approach of law, as is
G supported by various judgments and reasoning, that I have
detailed in the initial part of this judgment.
221. A solution to such an issue has to be provided with
reference to exercise of a right, imposition of reasonable
restrictions, without disturbing the social order, respecting the
H rights of others with due recognition of the constitutional duties
IN RE: RAMLILA MAI DAN INCIDENT DT.415.06.2011 v. HOME 1121
SECRETARY, UMION OF INDIA [SWATANTER KUMAR, J.]
that all citizens are expected to discharge. A
222. Coming to the facts of the present case, it is nobody's
case that the permissions were declined. The permissions,
whether for holding of the yoga shivir at the Ramlila Maidan or
the protest at Jantar Mantar, were granted subject to certain B
terms and conditions. The argument that no permission of the
Police is called for in absolute terms, as a pre-requirement for
holding of such meetings, needs no further deliberation.
Responsibility of the Trust, Members of the Assembly,
their status and duty C
223. Once an order under Section 144 Cr.P.C. is passed
by the competent authority and such order directs certain acts
to be done or abstains from doing certain acts and such order
is in force, any assembly, which initially might have been a o
lawful assembly, would become an unlawful assembly and the
people so assembled would be required to disperse in
furtherance to such order. A person can not only be held
. responsible for his own act, but, in light of Section 149 IPC, if
the offence is committed by any member of the unlawful E
assembly in prosecution of a common object of that assembly,
every member of such assembly would become member of the
unlawful assembly.
224. Obedience of lawful orders is the duty of every citizen.
Every action is to follow its prescribed course.in law Actio F
quaelibet it sua via. The course prescribed in law has to
culminate to its final stage in accordance with law. In that
process there might be either a clear disobedience or a
contributory disobedience. In either way, it may tantamount to
being negligent. Thus, the principle of contributory negligence G
can be applied against parties to an action or even a non-party.
The rule of identification would be applied in cases where a
situation of the present kind arises. Before this Court, it is the
stand of the Police authorities that Baba Ramdev, members
of the Trust and their followers refused to obey the order and, H
1122 SUPREME COURT REPORTS [2012] 4 S.C.R.
A in fact, they created a situation which resulted in inflictment of
injuries not only to the members of the public, but even to Police
personnel. In fact, they placed the entire burden upon
respondent No. 4.
225. The members of the public as well as Respondent
8
No.4 claimed that there was damage to their person and
property as a result of the action of the Police. Thus, this Court
will have to see the fault of the party and the effective cause of
the ensuing injury. Also it has to be seen that in the 'agony of
C the moment', would the situation have been different and safe,
had the people concerned acted differently and as to who was
majorly responsible for creation of such a dilemma. Under the
English law, it has been accepted that once a statute has
enjoined a pattern of behavior as a duty, no individual can
absolve another from having to obey it. Thus, as a matter of
D public policy, volenti cannot erase the duty or breach of it (Ref
Clerk & Lindsell on Torts, Twentieth Edition, pg. 246).
226. There is no statutory definition of contributory
negligence. The concerns of contributory negligence are now
E too firmly established to be disregarded, but it has to be
understood and applied properly. 'Negligence' materially
contributes to injury or is regarded as expressing something
which is a direct cause of the accident.
F 227. The difference in the meaning of "negligence," when
applied to a claimant, on the one hand, and to a defendant on
the other, was pointed out by Lord Simon in Nance v. British
Columbia Electric Ry. [(1951) A.C. 601 at 611]:
"When contributory negligence is set up as a defence, its
G existence does not depend on any duty owed by the
injured party to the party sued, and all that is necessary to
establish such a defence is to prove ... that the injured
party did not in his own interest take reasonable care of
himself and contributed, by his want of care, to his own
H injury. For when contributory negligence is set up as a
IN RE: RAMLllA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1123
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
shield against the obligation to satisfy the 'whole of the A
claimant's claim, the principle involved is that, where a man
is part author of his own injury, he cannot call on the other
party to compensate him in full"
228. The individual guilty of contributory negligence may
8
be the employee or agent of the claimant, so as to render the
claimant vicariously responsible for what he did. There could
be case~ of negligence between spectators and participants
in sporting activities. However, in such matters, negligence itself
has to be established. In cases of 'contributory negligence', it C
may not always be necessary to show that the claimant is in
breach of some duty, but the duty to act carefully, usually arises
and the liability in an action could arise (Ref. Charlesworth &
Percy on Negligence, Eleventh Edition, Pages 195, 206).
These are some of the principles relating to the award of
compensation in cases of contributory negligence and in D
determining the liability and identifying the defaulter. Even if
these principles are not applicable stricto sensu to the cases
of the present kind, the applied principles of contributory
negligence akin to these principles can be applied more
effectively on the strength of the provisions of Section 149 IPC. E
229. A negligence could be composite or contributory.
'Negligence' does not always mean absolute carelessness, but
want of such a degree of care as is required in particular
circumstances. 'Negligence' is failure to observe, for the F
protection of the interests of another person, the degree of care,
precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury. Normally, the
crucial question on which such a liability depends would be
whether either party could, by exercise of reasonable care, G
have avoided the consequence of other's negligence. Though,
this is the principle stated by this Court in a case relating to
Motor Vehicles Act, in the case of Municipal Corporation of
Greater Bombay v. Shri Laxman Iyer & Anr. [AIR 2003 SC
4182), it is stated that the principle stated therein would be
H
1124 SUPREME COURT REPORTS [2012] 4 S.C.R.
A applicable to ·a large extent to the cases involving the principles
of contributory negligence as well. This Court in the case of
Municipal Corporation of Delhi, Delhi v. Association of
Victims of Uphaar Tragedy and others (C.A. Nos. 7114-7115
of 2003 with C.A. No. 7116 of 2003 and C.A. No. 6748 of
B 2004, pronounced on 13th October, 2011) while considering
awarding of compensation to the victims who died as a result
of Uphaar tragedy and the liability of the persons responsible,
held that even on the principle of contributory negligence the
DVB to whom negligence was attributable in relation to
c installing a transformer was liable to pay damages along with
licensee. Whenever an order is passed which remains
unchallenged before the Court of competent jurisdiction, then
its execution is the obvious consequence in law. For its
execution, all concerned are expected to permit implementation
D of such orders and, in fact, are under a legal obligation to fully
cooperate in enforcement of lawful orders. Article 19(1 )(a)
gives the freedom of speech and expression and the right to
assembly. Article 21 mandates that no person shall be deprived
of his life and personal liberty except according to the
procedure established by law. However, Article 51A imposes
E certain fundamental duties on the citizens of India. Article 38(1)
provides that the State shall strive to promote the welfare of the
people by securing and protecting, as effectively as it may, a
social order in which justice - social, economic and political -
shall inform all the institutions of national life.
F
230. Article 51A requires the citizens of India to abide by
the Constitution and to uphold the sovereignty and integrity of
India. Article 51A(i) requires a citizen to safeguard public
property and to abjure violence. An order passed under Section
G 144 Cr.P.C. is a restriction on enjoyment of fundamental rights.
It has been held to be a reasonable restriction. Once an order
is passed under Section 144 Cr.P.C. within the framework and
in accordance with the requirements of the said Section, then
it is a valid order which has to be respected by all concerned.
H Its enforcement is the natural consequence. In the present case,
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1125
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
the order was passed under Section 144 Cr.P.C. at about 11.30 A
p.m. whereafter the Police had come to Ramlila Maidan to
serve the said order on the representatives of respondent No.
4. The video and the footage of CCTV cameras played before
this Court show that the officers of the Police along with the
limited force had come to inform Baba Ramdev and/or the B
representatives of respondent No. 4 about the passing of the
said order, but they did not receive the requisite cooperation
from that end. On the contrary, it is clear from the various
documents before this Court that Baba Ramdev did not receive
the order though obviously he had come to know about the said c
order. At the time of the incident, Baba Ramdev was sleeping
in the rest room. Thereafter he came to the stage and when
approached by the Police officers, who were also present on
the stage, he jumped into the crowd, got onto the shoulders of
one of his followers and delivered speeches. Of course, there
0
does not appear to be use of any language which was, in any
way, provocative or was a command to his followers to get
involved in clash with the Police. On the contrary, in his
speeches, he asked the people to chant the Gayatri Mantra,
maintain Shanti and not to take any confrontation with the
Police. He exhorted that he would not advise the path of hinsa, E
but at the same time, he also stated about failure of his talks
with the Government and the attitude of the Government on the
issues that he had raised and also stated that 'Babaji will go
only if people wanted and the God desires it."
F
231. After some time, Baba Ramdev climbed onto the
stage and thereafter, disappeared. In the CCTV cameras,
Baba Ramdev is not seen thereafter. He did not disclose to
his followers that he was leaving and what path they should
follow. This suspense and commotion on the stage added fuel G
to the fire. Thereafter, the scenes of violent protest and clash
between the Police and the followers occurred at the site.
232. The legality and correctness of the order passed
under Section 144 Cr.P.C. was not challenged by respondent
H
1126 SUPREME COURT REPORTS [2012) 4 S.C.R.
A No. 4 and, in fact, it remains unchallenged till date. Of course,
the attempt on the part of the authorities to enforce the order
forthwith, practically frustrated the right available to respondent
No. 4 under law i.e. preferring of an appeal or a revision under
the provisions of Cr.P.C.
B 233. Be that as it may, the fact that when an order was
passed by the authorities competent to pass such an order, it
was expected of all concerned to respect the order lawfully
passed and to ensure that the situation at the site was not
converted into a tragedy. All were expected to cooperate in the
C larger interest of the public. The Police was concerned with the
problem of law and order while respondent No. 4 and Baba
Ramdev certainly should have been concerned about the
welfare of their followers and the large gathering present at the
Ramlila Maidan. Thus, to that extent, the Police and respondent
D No. 4 ought to have acted in tandem and ensured that no
damage to the person or property should take place, which
unfortunately did not happen. Keeping in view the stature and
respect that Baba Ramdev enjoyed with his followers, he ought
to have exercised the moral authority of his office in the welfare
E of the people present. There exists a clear constitutional duty,
legal liability and moral responsibility to ensure due
implementation of lawful orders and to maintain the basic rule
of law. It would have served the greater public purpose and
even the purpose of the protests for which the rally was being
F held, if Baba Ramdev had requested his followers to
instantaneously leave Ramlila Maidan peacefully or had
assured the Authorities that the morning yoga programme or
protest programme would be cancelled and the people would
be requested to leave for their respective places. Absence of
G performance of this duty and the gesture of Baba Ramdev led
to an avoidable lacerating episode. Even if the Court takes the
view that there was undue haste, adamancy and negligence
on the part of the Police authorities, then also it cannot escape
to mention that to this negligence, there is a contribution by
H respondent No. 4 as well. The role of Baba Ramdev at that
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1127
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
crucial juncture could have turned the tide and probably brought A
a peaceful end rather than the heart rending end of injuries and
unfortunate deaths. Even if it is assumed that the action of the
Police was wrong in law, it gave no right to others to commit
any offence lnjuria non excusat injuriam.
B
234. Every law abiding citizen should respect the law and
must stand in conformity with the rule, be as high an individual
may be. Violation of orders has been made punitive under the
provisions of Section 188 IPC, but still in other allied
proceedings, it would result in fastening the liability on all
contributory partners, may be vicariously, but the liability C
certainly would extend to all the defaulting parties. For these
reasons, I have to take a view that in the circumstances of the
case, Baba Ramdev and the office bearers of respondent No.
4 have contributed to the negligence leading to the occurrence
in question and are vicariously liable for such action. D
FINDINGS AND DIRECTIONS :
(1) In discharge of its judicial functions, the courts do
not strike down the law or quash the State action
with the aim of obstructing democracy in the name E
of preserving democratic process, but as a
contribution to the governmental system, to make
it fair, judicious and transparent. The courts take
care of interests which are not sufficiently defended
elsewhere and/or of the victims of State action, in F
exercise of its power of judicial review.
In my considered view, in the facts of the present case,
the State and the Police could have avoided this
tragic incident by exercising greater restraint, G
patience and resilience. The orders were passed
by the authorities in undue haste and were
executed with force and overzealousness, as if an
emergent situation existed. The decision to forcibly
evict the innocent public sleeping at the Ramlila H
1128 SUPREME COURT REPORTS (2012] 4 S.C.R.
A grounds in the midnight of 4th/5th June, 2011,
whether taken by the police independently or in
consultation with the Ministry of Home Affairs is
amiss and suffers from the element of arbitrariness
and abuse of power to some extent. The restriction
8 imposed on the right to freedom of speech and
expression was unsupported by cogent reasons
and material facts. It was an invasion of the liberties
and exercise of fundamental freedoms. The
members of the assembly had legal protections
available to them even under the provisions of the
c Cr.P.C. Thus, the restriction was unreasonable and
unwarrantedly executed. The action demonstrated
the might of the State and was an assault on the
very basic democratic values enshrined in our
Constitution. Except in cases of emergency or the
D situation unexceptionably demanding so,
reasonable notice/time for execution of the order or
compliance with the directions issued in the order
itself or in furtherance thereto is the pre-requisite.
It was primarily an error of performance of duty both
E by the police and respondent No.4 but the ultimate
sufferer was the public at large.
(2) From the facts and circumstances that emerge from
the record before this Court, it is evident that it was
F not a case of emergency. The police have failed to
establish that a situation had arisen where there
was imminent need to intervene, having regard to
the sensitivity and perniciously perilous
consequences that could have resulted, if such
harsh measures had not been taken forthwith.
G
(3) The State has a duty to ensure fulfillment of the
freedom enshrined in our Constitution and so it has
a duty to protect itself against certain unlawful
actions. It may, therefore, enact laws which would
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1129
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
ensure such protection. The rights and the liberties A
are not absolute in nature and uncontrolled in
operation. While placing the two, the rule of justice
and fair play requires that State action should
neither be unjust nor unfair, lest it attracts the vice
of unreasonableness or arbitrariness, resultantly B
vitiating the law, the procedure and the action taken
thereunder.
(4) It is neither correct nor judicially permissible to say
that taking of police permission for holding of C
dharnas, processions and rallies of the present
kind is irrelevant or not required in law. Thus, in my
considered opinion, the requirement of associating
police, which is an important organ of the State for
ensuring implementation of the rule of law, while
holding such large scale meetings, dharnas and D
protests, would not infringe the fundamental rights
enshrined under Articles 19(1)(a) and 19(1)(b) of
the Constitution. This would squarely fall within the
regulatory mechanism of reasonable restrictions,
contemplated under Articles 19(2) and 19(3). E
Furthermore, it would help in ensuring due social
order and would also not impinge upon the rights
of others, as contemplated under Article 21 of the
Constitution of India. The police authorities, who are
required to maintain the social order and public F
tranquility, should have a say in the organizational
matters relating to holding of dharnas, processions,
agitations and rallies of the present kind. However,
such consent should be considered in a very
objective manner by the police authorities to ensure G
the exercise of the right to freedom of speech and
expression as understood in its wider connotation,
rather than use the power to frustrate or throttle the
constitutional right. Refusal and/or withdrawal of
permission should be for valid and exceptional H
1130 SUPREME COURT REPORTS [2012] 4 S.C.R.
A reasons. The executive power, to cause a
restriction on a constitutional right within the scope
of Section 144 Cr.P.C., has to be used sparingly
and very cautiously. The authority of the police to
issue such permission has an inbuilt element of
B caution and guided exercise of power and should
be in the interest of the public. Such an exercise of
power by the Police should be aimed at attainment
of fundamental freedom rather than improper
suppression of the said right.
c (5) I have held that the respondent no.4 is guilty of
contributory negligence. The Trust and its
representatives ought to have discharged their legal
and moral duty and should have fully cooperated in
the effective implementation of a lawful order
D passed by the competitive authority under Section
144 Cr.P.C. Due to the stature that Baba Ramdev
enjoyed with his followers, it was expected of him
to request the gathering to disperse peacefully and
le~ve the Ramlila Maidan. He ought not have
E insisted on continuing with his activity at the place
of occurrence. Respondent no.4 and all its
representatives were bound by the constitutional
and fundamental duty to safeguard public property
and to abjure violence. Thus, there was legal and
F moral duty cast upon the members of the Trust to
request and persuade people to leave the Ramlila
Maidan which could have obviously avoided the
confrontation between the police and the members
of the gathering at the Ramlila Maidan.
G
(6) As difficult as it is to anticipate the right to any
freedom or liberty without any reasonable
restriction, equally difficult it is to imagine existence
of a right not coupled with a duty. The duty may be
a direct or an indirect consequence of a fair
H
IN RE: RAMLILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1131
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
assertion of the right. Part Ill of the Constitution, A
although confers rights, duties, regulations and
restrictions are inherent thereunder.
It can be stated with certainty that the freedom of
speech is the bulwark of democratic Government.
B
This freedom is essential for the appropriate
functioning of the democratic process. The freedom
of speech and expression is regarded as the first
condition of liberty in· the hierarchy of liberties
granted under our constitutional mandate.
c
(7) It is undisputable that the provisions of Section 144
Cr.P.C. are attracted in emergent situations.
Emergent power has to be exercised for the
purposes of maintaining public order. The material
facts, therefore, should demonstrate that the action D
is being taken for maintenance of public order,
public tranquility and harmony.
(8) Even if an order under Section 144 Cr.P.C. had to
be given effect to, still Respondent no.4 had a right
E
to stay at the Ramlila Maidan with permissible
number of people as the land owning authority-MCD
had not revoked its permission and the same was
valid till 20th June, 2011. The chain of events
reveals that it was a case of police excesses and,
to a limited extent, even abuse of power. F
(9) From the material placed before the Court, I am
unable to hold that the order passed by the
competent authority and execution thereof are ma/a
fide in law or in fact or is an abdication of power G
and functions by the Police. The action, of course,
partially suffers from the vice of arbitrariness but
every arbitrary action necessarily need not be ma/a
fide. Similarly every incorrect decision in law or on
facts of a given case may also not be ma/a fide but H
1132 SUPREME COURT REPORTS (2012] 4 S.C.R.
A every ma/a fide decision would be an incorrect and
impermissible decision and would be vitiated in
law. Upon taking into consideration the cumulative
effect of the affidavits filed on record and other
documentary evidence, I am unable to dispel the
B argument that the decision of the Ministry of Home
Affairs, Union of India reflected its shadow on the
decision making process and decision of the Police
authorities.
(10) I also find that there would be no illegality if the
c police authorities had acted in consultation with the
Union Ministry as it is the collective responsibility
of various departments of the State to ensure
maintenance of law and order and public safety in
the State.
D
(11) Every person/body to whom such permission is
granted, shall give an undertaking to the authorities
concerned that he/it will cooperate in carrying out
their duty and any lawful orders passed by any
E competent court/authority/forum at any stage of the
commencement of an agitation/dhama/ procession
and/or period during which the permission granted
is enforced. This, of course, shall be subject to such
orders as may be passed by the court of competent·
jurisdiction.
F
(12) Even on the touchstone of the principle of 'in
terrorem', I am of the view that the police have not
acted with restraint or adhered to the principle of
'least invasion' with the constitutional and legal
G rights available to respondent no.4 and the
members of the gathering at the Ramlila Maidan.
(13) The present case is a glaring example of trust
deficit between the people governing and the
people to be governed. Greater confidence needs
H
IN RE: RAMLILA MAI DAN INCIDENT DT4/5.06.2011 v. HOME 1133
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
to be built between the authorities in power and the A
public at large. Thus, I hold and direct that while
considering the 'threat perception' as a ground for
revoking such permissions or passing an order
under Section 144 Cr.P.C., 'care perception' has
to be treated as an integral part thereof. 'Care B
perception' is an obligation of the State while
performing its constitutional duty and maintaining
social order.
(14) It is unavoidable for this Court to direct that the
police authorities should take such actions properly
c
and strictly in accordance with the Guidelines,
Standing Orders and the Rules applicable thereto.
It is not only desirable but also a mandatory
requirement of the present day that the State and
the police authorities should have a complete and D
effective dispersement plan in place, before
evicting the gathering by use of force from a
particular place, in furtherance to an order passed
by an executive authority under Section 144 of the
Cr.P.C. E
(15) This is not a case where the Court can come to the
conclusion that the entire police force has acted in
violation to the Rules, Standing orders and have
fallen stray in their uncontrolled zeal of forcibly F
evicting innocent public from the Ramlila Maidan.
There has to be a clear distinction between the
cases of responsibility of the force collectively and
. the responsibility of individual members of the
forces. I find from the evidence on record that some G
of the police officers/personnel were very
cooperative with the members of the assembly and
helped them to vacate the Ramlila Maidan while
others were violent, inflicted cane injuries, threw
bricks and even used tear-gas shells, causing fire
H
1134 SUPREME COURT REPORTS [2012] 4 S.C.R.
A on the stage and total commotion and confusion
amongst the large gathering at the Ramlila Maidan.
Therefore, these two classes of Police Force have
to be treated differently.
B (16) Thus, while directing the State Government and the
Commissioner of Police to register and investigate
cases of criminal acts and offences, destruction of
private and public property against the police
officers/personnel along with those members of the
assembly, who threw bricks at the police force
c causing injuries to the members of the force as well
as damage to the property, I issue the following
directions:
a. Take disciplinary action against all the erring
D police officers/personnel who have indulged
in brick-batting, have resorted to /athi charge
and excessive use of tear gas shells upon the
crowd, have exceeded their authority or have
acted in a manner not permissible under the
E prescribed procedures, rules or the standing
orders and their actions have an element of
criminality. This action shall be taken against
the officer/personnel irrespective of what
ranks they hold in the hierarchy of police.
F
b. The police personnel who were present in the
panda/ and still did not help the evacuation
of the large gathering and in transportation
of sick and injured people to the hospitals
have, in my opinion, also rendered
G themselves liable for appropriate disciplinary
action.
c. The police shall also register criminal cases
against the police personnel and members
H of the gathering at the Ramlila ground
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1135
SECRETARY, UNION OF INDIA [SWATANTER KUMAR, J.]
(whether they were followers of Baba Ramdev A
or otherwise) who indulged in damage to the
property, brick-batting etc. All these cases
have already been reported to the Police
Station Kamla Market. The police shall
complete the investigation and file a report B
under section 173 of the Cr.P.C. within three
months from today.
(17) I also direct that the persons who died or were
injured in this unfortunate incident should be C
awarded ad hoc compensation. Smt. Rajbala, who
got spinal injury in the incident and subsequently
died, would be entitled to the ad-hoc compensation
of Rs.5 lacs while persons who suffered grievous
injuries and were admitted to the hospital would be
entitled to compensation of Rs.50,000/- each and D
persons who suffered simple injuries and were
taken to the hospital but discharged after a short
while would be entitled to a compensation of
Rs.25,000/- each.
E
For breach of the legal and moral duty and for its
contributory negligence, the consequences of
financial liability would also pass, though to a limited
extent, upon the respondent no.4-Trust as well.
Thus, I direct that in cases of death and grievous F
hurt, 25% of the awarded compensation shall be
paid by the Trust. The said amount shall be paid to
the Commissioner of Police, who in turn, shall issue
a cheque for the entire amount in favour of the
injured or the person claiming for the deceased.
G
235. The compensation awarded by this Court shall be
treated as ad-hoc compensation and in the event, the
deceased or the injured persons or the persons claiming
through them institute any legal proceedings for that purpose,
H
1136 SUPREME COURT REPORTS (2012] 4 S.C.R.
A the compensation awarded in this judgment shall be adjusted
in those proceedings.
236. The view expressed by me in this judgment is prima
facie and is without prejudice to the rights and contentions of
B the parties that may be available to them in accordance with
law.
237. The suo moto Petition is disposed of with above
directions while leaving the parties to bear their own costs.
C 238. This Court would be failing in its duty if appreciation
is not placed on record for the proficient contribution made and
adroit assistance rendered by Dr. Rajeev Dhavan, learned
amicus curiae, Mr. R.F. Nariman, learned Solicitor General of
India, Mr. P.P. Malhotra, learned Additional Solicitor General,
o Mr. Harish N. Salve, Mr. P.H. Parekh, Mr. Ram Jethmalani,
learned senior advocates, other learned counsel assisting them
and all other counsel appearing in their own right.
DR. 8.S. CHAUHAN, J. 1. Having had the advantage of
E going through the lucid and elaborately discussed judgment of
my esteemed brother Justice Swatanter Kumar, I feel
encouraged to contribute to this pronouncement in my own
humble way on the precious issues of liberty and freedom,
guaranteed to our citizens as fundamental rights under the
Constitution and the possible laWful restrictions that can be
F imposed for curtailing such rights. The legality of the order
passed under Section 144 Cr.P.C. by the Assistant
Commissioner of Police, Kamla Market, Central District, Delhi
is also subject to legal scrutiny by me in these proceedings to
find out as to whether the said order is in conformity with the
G provisions of Section 144 Cr.P.C. read with Section 134 thereof
and the Delhi Police Standing Order 309.
2. I respectfully agree with all the observations and the
findings recorded by my colleague and I also concur with the
H observation that the findings recorded on the sufficiency of
IN RE: RAMLILAMAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1137
SECRETARY, UNION OF INDIA [DR. B.S. CHAUHAN, J.]
reasons in the order dated 4.6.2011 are tentative which could A
have been challenged if they so desired before the appropriate
forum in proper proceedings. Nonetheless, the reservations that
I have about State Police action vis-a-vis the incident in
question and my opinion on the curtailment of the right of privacy
of sleeping individuals has to be expressed as it directly B
involves the tampering of inviolate rights, that are protected
under the Constitution. Proceedings under Section 144, even
if resorted to on sufficient grounds, the order could not be
implemented in such unruly manner. Such a power is invoked
to prevent the breach of peace and not to breach the peace c
itself.
3. Baba Ram Dev alongwith his large number of followers
and supporters performed a Shanti Paath at about 10 p.m. on
4th June, 2011, whereafter, all those who had assembled and
stayed back, went to sleep under tents and canopies to again D
get up in the morning the next day at about 4 p.m. to attend the
schedule of Ashtang Yoga training to be conducted by Baba
Ramdev.
4. Just after midnight, at about 12.30 a.m. on the 5th of E
June, 2011, a huge contingent of about more than a thousand
policemen surrounded the encampments while everybody was
fast asleep inside. There was a sizeable crowd of about 20,000
persons who were sleeping. They were forcibly woken up by
the Police, assaulted physically and were virtually thrown out of F
their tents. This was done in the purported exercise of the police
powers conferred under Section 144 Cr. P.C. on the strength
of a prohibitory order dated 4.6.2011 passed by the Assistant
Commissioner of Police as mentioned hereinabove.
5. The manner in which the said order came to be G
implemented, raised a deep concern about the tyrannical
approach of the administration and this Court took cognizance
of the incident calling upon the Delhi Police Administration to
answer this cause. The incident had ushered a huge uproar and
an enormous tirade of criticism was flooded, bringing to our H
1138 SUPREME COURT REPORTS [2012] 4 S.C.R.
A notice the said unwarranted police action, that too, even without
following the procedure prescribed in law.
6. The question is as to whether such an order stands
protected under the restriction clause of Article 19 of the
Constitution of India or does it violate the rights of a peaceful
8
sleeping crowd, invading and intruding their privacy during sleep
hours. The incident also raises serious questions about the
credibility of the police act, the procedure followed for
implementation of a prohibitory order and the justification
C thereof in the given circumstances.
- 7. The right to peacefully and lawfully assemble together
and to freely express oneself coupled with the right to know
about such expression is guaranteed under Article 19 of the
Constitution of India, Such a right is inherent and is also
D coupled with the right to freedom and liberty which have been
conferred under Article 21 of the Constitution of India.
8. The background in which the said assembly has
gathered has already been explained in the judgment delivered
E by my learned brother and, therefore, it is not necessary to enter
into any further details thereof.
The fact remains that implementation of promulgated
prohibitory orders was taken when the crowd was asleep. The
said assembly per-se, at that moment, did not prima facie
F reflect any apprehension of eminent threat or danger to public
peace and tranquillity nor any active demonstration was being
performed at that dead hour of night. The Police, however,
· promulgated the order on the basis of an alleged information
received that peace and tranquillity of that area would be
G disturbed and people might indulge in unlawful activities. The
prohibitory order also recites that conditions exist that
unrestricted holding of a public meeting in the area is likely to
cause obstruction to traffic, danger to human safety and
disturbance of public tranquillity and in order to ensure speedy
H
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1139
SECRETARY, UNION OF INDIA [DR. B.S. CHAUHAN, J.]
action for preventing any such danger to human life and safety, A
the order was being promulgated.
9. The order further recites that since the notice for the
promulgation cannot be served individually as such it shall be
published for information through the Press and by affixing the
copies on the Notice Board of the Office of the Police Officials,
B
Administration and Police Stations, including the Municipal
Corporation Offices.
10. No doubt, the law of social control is preserved in the
hands of the State, but at the same time, protection against C
unwarranted governmental invasion and intrusive action is also
protected under the laws of the country. Liberty is definitely no
licence and the right of such freedom is not absolute but can
be regulated by appropriate laws. The freedom from official
interference is, therefore, regulated by law but law cannot be o
enforced for crippling the freedom merely under the garb of
such regulation. The police or the Administration without any
lawful cause cannot make a calculated interference in the
enjoyment of the fundamental rights guaranteed to the citizens
of this country. As to what was material to precipitate such a E
prohibitory action is one aspect of the matter, but what is more
important is the implementation of such an order. This is what
troubles me in the background that a prohibitory order was
sought to be enforced on a sleeping crowd and not a violent
one. My concern is about the enforcement of the order without
F
any announcement as prescribed for being published or by its
affixation in terms of the Delhi Police Standing Order 309 read
with Section 134 Cr.P.C.
11. It is believed that a person who is sleeping, is half
dead. His mental faculties are in an inactive state. Sleep is an G
unconscious state or condition regularly and naturally assumed
by man and other living beings during which the activity of the
nervous system is almost or entirely suspended. It is the state
of slumber and repose. It is a necessity and not a luxury. It is
essential for optimal health and happiness as it directly affects H
1140 SUPREME COURT REPORTS [2012) 4 S.C.R.
A the quality of the life of an individual when awake inducing his
mental sharpness, emotional balance, creativity and vitality.
Sleep is, therefore, a biological and essential ingredient of the
basic necessities of life. If this sleep is disturbed, the mind gets
disoriented and it disrupts the health cycle. If this disruption is
brought about in odd hours preventing an individual from getting
8
normal sleep, it also causes energy disbalance, indigestion and
also affects cardiovascular health. These symptoms, therefore,
make sleep so essential that its deprivation would result in
mental and physical torture both. It has a wide range of negative
C effects. ?It also impairs the normal functioning and performance
of an individual which is compulsory in day-to-day life of a
human being. Sleep, therefore, is a self rejuvenating element
of our life cycle and is, therefore, part and partial of human life.
The disruption of sleep is to deprive a person of a basic priority,
resulting in adverse metabolic effects. It is a medicine for
D weariness which if impeded would lead to disastrous results.
12. Deprivation of sleep has tumultuous adverse effects.
It causes a stir and disturbs the quiet and peace of an
individual's physical state. A natural process which is inherent
E in a human being if disturbed obviously affects basic life. It is
for this reason that if a person is deprived of sleep, the effect
thereof, is treated to be torturous. To take away the right of
natural rest is also therefore violation of a human right. It
becomes a violation of a fundamental right when it is disturbed
F intentionally, unlawfully and for no justification. To arouse a
person suddenly, brings about a feeling of shock and
benumbness. The pressure of a sudden awakening results in
almost a void of sensation. Such an action, therefore, does
affect the basic life of an individual. The state of sleeping is
G assumed by an individual when he is in a safe atmosphere. It
is for this reason that this natural system has been inbuilt by
our creator to provide relaxation to a human being. The muscles
are relaxed and this cycle has a normal recurrence every night
and lasts for several hours. This necessity is so essential that
H even all our transport systems provide for facilities of sleep
IN RE: RAMLILA MAI DAN INCIDENT DT.4/5.06.2011 v. HOME 1141
SECRETARY, UNION OF INDIA [DR. B.S. CHAUHAN, J.]
while travelling. Sleep is therefore, both, life and inherent liberty A
which cannot be taken away by any unscrupulous action. An
Irish Proverb goes on to say that the beginning of health is
sleep. The state of sleep has been described by Homer in the
famous epic Iliad as "sleep is the twin of death". A person,
therefore, cannot be presumed to be engaged in a criminal B
activity or an activity to disturb peace of mind when asleep.
?Aristotle, the great Greek philosopher has said that all· men
are alike when asleep. To presume that a person was scheming
to disrupt public peace while asleep would be unjust and would
be entering into the dreams of that person. c
13. I am bewildered to find out as to how such declaration
of the intention to impose the prohibition was affected on a
sleeping crowd. There may be a reason available to impose
prohibitory orders calling upon an assembly to disperse, but
to me, there does not appear to be any plausible reason for D
the police to resort to blows on a sleeping crowd and to throw
them out of their encampments abruptly. The affidavits and
explanation given do not disclose as to why the police could
not wait till morning and provide a reasonable time to this crowd
to disperse peacefully. The undue haste caused a huge disarray E
and resulted in a catastrophe that was witnessed on Media and
Television throughout the country. I fail to find any explanation
for the gravity or the urgent situation requiring such an emergent
action at this dark hour of midnight. I, therefore, in the absence
of any such justification have no option but to deprecate such F
action and it also casts a serious doubt about the existence of
the sufficiency of reasons for such action. The incident in this
litigation is an example of a weird expression of the desire of
a tyrannical mind to threaten peaceful life suddenly for no
justification. This coupled with what is understood of sleep G
hereinbefore, makes it clear that the precipitate action was
nothing but a clear violation of human rights and a definite
violation of procedure for achieving the end of dispersing a
crowd.
H
1142 SUPREME COURT REPORTS [2012) 4 S.C.R.
A 14. Article 355 of the Constitution provides that the
Government of every State would act in accordance with the
provisions of the Constitution. The primary task of the State is
to provide security to all citizens without violating human dignity.
?Powers conferred upon the statutory authorities have to be,
B perforce, admitted. Nonetheless, the very essence of
constitutionalist is also that no organ of the State may arrogate
to itself powers beyond what is specified in the Constitution.
(Vide: GVK Industries Ltd. &. Anr. v. Income Tax Officer &.
Anr., (2011) 4 SCC 36; and Nandini Sundar & Ors. v. State
c of Chhatisgarh, AIR 2011 SC 2839).
15. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao
Scindia Bahadur & Ors. v. Union of India, AIR 1971 SC 530,
this Court held that even in civil commotion or even in war or
peace, the State cannot act catastrophically outside the
D ordinary law and there is legal remedy for its wrongful acts
against its own subjects or even a friendly alien within the State.
16. In MIS Motilal Padampat Sugar Mills Co. Ltd. v. State
of U.P. &. Ors., AIR 1979 SC 621, this Court held that rule of
E law means, no one, however, high or low is above the law.
Everyone is subject to the law fully and completely as any other
and the Government is no exception. Therefore, the State
authorities are under a legal obligation to act in a manner that
is fair and just. It has to act honestly and in good faith. The
F purpose of the Government is always to serve the country and
ensure the public good. (See also: D.K. Basu v. State of West
Bengal, AIR 1997 SC 610).
17. Privacy and dignity of human life has always been
considered a fundamental human right of every human being
G like any other key values such as freedom of association and
freedom of speech. Therefore, every act which offends or
impairs human dignity tantamounts to deprivation pro tanto of
his right to live and the State action must be in accordance with
reasonable, fair and just procedure established by law which
H
IN RE: RAMLILAMAIDAN INCIDENTDT.4/5.06.2011 v. HOME 1143
SECRETARY, UNION OF INDIA [DR. B.S. CHAUHAN, J.]
stands the test of other fundamental rights. (Vide: Francis A
Coralie Mullin v. The Administrator, Union Territory of Delhi
&. Ors., AIR 1981 SC 746).
18. The Constitution does not merely speaks for human
right protection. It is evident from the catena of judgments of
8
this Court that it also speaks of preservation and protection of
man as well as animals, all creatures, plants, rivers, hills and
environment. Our Constitution professes for collective life and
collective responsibility on one hand and individual rights and
responsibilities on the other hand.
c
19. In Kharak Singh v. State of UP. & Ors., AIR 1963 SC
1295; and Govind v. State of Madhya Pradesh & Anr., AIR
1975 SC 1378, this Court held that right to privacy is a part of
life under Article 21 of the Constitution which has specifically
been re-iterated in People's Union for Civil Liberties v. Union D
of India&. Anr., AIR 1997 SC 568, wherein this Court held:
"We do not entertain any doubt that the word 'life' in Article
21 bears the same signification. Is then the word 'personal
liberty' to be construed as excluding from its purview an E
invasion on the part of the police of the sanctity of a man's
home and an intrusion into his personal security and his
right to sleep which is the normal comfort and a dire
necessity for human existence even as an animal? It might
not be inappropriate to refer here to the words of the
preamble to the Constitution that it is designed to 'assure F
the dignity of the individual' and therefore of those
cherished human values as the means of ensuring his full
development and evolution. We are referring to these
objectives of the framers merely to draw attention to the
concepts underlying the Constitution which would point to G
such vital words as 'personal liberty' having to be construed
in a reasonable manner and to be attributed that sense
which would promote and achieve those objectives and by
no means to stretch the meaning of the phrase to square
H
1144 SUPREME COURT REPORTS [2012] 4 S.C.R.
A with any preconceived notions or doctrinaire constitutional
theories". (Emphasis added).
20. The citizens/persons have a right to leisure; to sleep;
not to hear and to remain silent. The knock at the door, whether
by day or by night, as a prelude to a search without authority of
8
law amounts to be police incursion into privacy and violation
of fundamental right of a citizen. (See: Wolf v. Colorado, (1948)
338 us 25).
21. Right to privacy has been held to be a fundamental
C right of the citizen being an integral part of Article 21 of the
Constitution of India by this Court. Illegitimate intrusion into
privacy of a person is not permissible as right to privacy is
implicit in the right to life and liberty guaranteed under our
Constitution. Such a right has been extended even to woman
D of easy virtues as she has been held to be entitled to her right
of privacy. However, right of privacy may not be absolute and
in exceptional circumstance particularly surveillance in
consonance with the statutory provisions may not violate such
a right. (Vide: Malak Singh etc. v. State of Punjab & Haryana
E & Ors., AIR 1981 SC 760; State of Maharashtra & Anr. v.
Madhukar Narayan Mardikar, AIR 1991 SC 207; R. Rajagopal
@R.R. Gopal & Anr. v. State of Tamil Nadu & Ors., AIR 1995
SC 264; PUCL v. Union of India & Anr., AIR 1997 SC 568;
Mr. 'X' v. Hospital 'Z', (1998) 8 SCC 296; Sharda v. Dharmpal,
F (2003) 4 SCC 493 ; People's Union for Civil Liberties (PUCL)
& Anr. v. Union of India & Anr., AIR 2003 SC 2363 ; District
Registrar and Collector, Hyderabad & Anr. v. Canara Bank
& Ors., (2005) 1 SCC 496 ; Bhavesh Jayanti Lakhani v. State
of Maharashtra & Ors., (2009) 9 SCC 551; and Smt. Se/vi &
G Ors. v. State of Karnataka, AIR 2010 SC 1974).
22. In Ram Jethmalani & Ors. v. Union of India & Ors.,
(2011) 8 SCC 1, this Court dealt with the right of privacy
elaborately and held as under:
H "Right to privacy is an integral part of right to life. This is
IN RE: RAMLILA MAIDAN INCIDENT DT4/5.06.2011 v. HOME 1145
SECRETARY, UNION OF INDIA [DR. 8.S. CHAUHAN, J.]
a cherished constitutional value, and it is important that A
human beings be allowed domains of freedom that are
free of public scrutiny unless they act in an unlawful
manner ....... The solution for the problem of abrogation of
one zone of constitutional values cannot be the creation
of another zone of abrogation of constitutional values..... B
The notion of fundamental rights, such as a right to privacy
as part of right to life, is not merely that the State is
enjoined from derogating from them. It also includes the
responsibility of the State to uphold them against the
actions of others in the society, even in the context of c
exercise of fundamental rights by those others".
23. The courts have always imposed the penalty on
disturbing peace of others by using the amplifiers or beating
the drums even in religious ceremonies. (Vide: Rabin
Mukherjee&. Ors. v. State of West Bengal&. Ors., AIR 1985 D
Cal. 222; Burrabazar Fireworks Dealers Association v.
Commissioner of Police, Calcutta, Al R 1998 Cal 121; Church
of God (Full Gospel) in India v. K.K.R. Majestic Colony
Welfare Assn. &. Ors., AIR 2000 SC 2773; and Forum,
Prevention of Environment and Sound Pollution v. Union of E
India &. Ors., AIR 2006 SC 348). In the later judgment, this court
issued several directions including banning of using the
fireworks or fire crackers except between 6.00 a.m. and 10.00
p.m. There shall no use of fire crackers in silence zone i.e. within
the area less than 100 meters around hospitals, educational F
institutions, courts, religious places.
24. It is in view of this fact that, in many countries there are
complete night curfews (at the airport i.e. banning of landing
and taking off between the night hours), for the reason that the G
concept of sound sleep has been associated with sound health
which is inseparable facet of Article 21 of the Constitution.
25. It may also be pertinent to mention here that various
statutory provisions prohibit arrest of a judgment debtor in the
H
1146 SUPREME COURT REPORTS [2012] 4 S.C.R.
A night, a woman wanted in a criminal case after sunset and
before sunrise and restrain to enter in the night into a
constructed area suspected to have been raised in violation of
the sanctioned plan, master plan or Zonal Plan for the purpose
of survey or demolition.
B
(See: S.55 of Code of Civil Procedure; S.46(4) Cr.P.C.; and
Sections 25 and 42 of the U.P. Urban Planning and
Development Act, 1973).
26. While determining such matters the crucial issue in fact
C is not whether such rights exist, but whether the State has a
compelling interest in the regulation of a subject which is within
the police power of the State. Undoubtedly, reasonable
regulation of time, place and manner of the act of sleeping
would not violate any constitutional guarantee, for the reason
D that a person may not claim that sleeping is his fundamental
right, and therefore, he has a right to sleep in the premises of
the Supreme Court itself or within the precincts of the
Parliament.
E 27. More so, I am definitely not dealing herein with the
rights of homeless persons who may claim right to sleep on
footpath or public premises but restrict the case only to the
extent as under what circumstances a sleeping person may be
disturbed and I am of the view that the State authorities cannot
F deprive a person of that right anywhere and at all times.
28. While dealing with the violation of Human Rights by
Police Officials, this Court in Prithipal Singh & Ors. v. State of
Punjab & Anr. (2012) 1 SCC 10, held as under:
G "The right to life has rightly been characterized as
"supreme" and 'basic'; it includes both so-called negative
and positive obligations for the State". The negative
obligation means the overall prohibition on arbitrary
deprivation of life. In this context, positive obligation
requires that State has an overriding obligation to protect
H
IN RE: RAM LILA MAI DAN INCIDENT DT4/5.06.201~ v. HOME 114 7
SECRETARY, UNION OF INDIA [DR B.S. CHAUHAN, J.]
the right to life of every person within its territorial A
jurisdiction."
29. Thus, it is evident that right of privacy and the right to
sleep have always been treated to be a fundamental right like
a right"to breathe, to eat. to drink, to blink, etc.
B
30. Section 144 Cr.P.C. deals with immediate prevention
and speedy remedy. Therefore, before invoking such a
provision, the statutory authority must be satisfied regarding the
existence of the circumstances showing the necessity of an
immediate action. The sine qua non for an order under Section C
144 Cr.P.C. is urgency requiring an immediate and speedy
intervention by passing of an order. The ?order must set out
the material facts of the situation. Such a provision can be used
only in grave circumstances for maintenance of public peace.
The efficacy of the provision is to prevent some harmful D
occurrence immediately. Therefore, the emergency must be
sudden and the consequences sufficiently grave.
31. The disobedience of the propitiatory order becomes
punishable under Section 188 l.P.C. only "if such disobedience E
causes or tends to cause obstruction, annoyance or injury, or
risk of obstruction, annoyance or injury to any person lawfully
employed" or "if such disobedience causes or tends to cause
damage to human life, health or safety or causes or tends to
cause riot or affray". Disobedience of an order by public servant
lawfu.lly empowered will not be an offence unless such F
disobedience leads to enumerated consequences stated under
the provision of Section 188 IPC. More so, a violation of the
propitiatory order cannot be taken cognizance of by the
Magistrate who passed it. He has to prefer a complaint about
it as provided under Section 195 (f)(a) IPC. A complaint is not G
maintainable in the absence of allegation of danger to life,
health or safety or of riot or affray.
32. Section 144 Cr.P.C. itself provides the mode of service
of the order in the manner provided by Section 134 Cr.P.C: H
1148 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Section 134 Cr.P.C. reads as under:
"Service or notification of order. -
(1) The order shall, if practicable, be served on the
person against whom it is made, in the manner
B herein provided for service of a summons.
(2) If such order cannot be so served, it shall be
notified by proclamation, published in such manner,
as the State Government may, by rules, direct, and
c a copy thereof shall be stuck up at such place or
places as may be fittest for ?conveying the
information to such persons.
33. Delhi Police Standing Order 309 - Regulation of
Processions and Rules prescribe the mode of service of the
D order passed under Section 144 Cr.P.C., inter-alia:
xx xx xx
(5) Arrangement at the place of demonstration
E should include the following:
a) Display of banner indicating promulgation of
Section 144 Cr.P.C.
b) At least 2 videographers be available on either
F side of the demonstration to capture both
demonstrators as well as police response/action.
c) Location of Ambulance/PCR vans for shifting
injured persons.
G d) Loud hailers should be available.
(6) Repeated use of PA system a responsible officer-
appealing/advising the leaders and demonstrators to
remain peaceful and come forward for memorandum/
H deputation etc. or court arrest peacefully. Announcements
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1149
SECRETARY, UNION OF INDIA [DR. B.S. CHAUHAN, J.]
should be videographed. A
(7) If they do not follow appeal and turn violent declare the
assembly unlawful on PA system & videograph.
(8) Warning on PA system prior to use of any kind of force
must be ensured and also videographed. B
xx xx xx
(13) Special attention be paid while dealing with women's
demonstrations - only women police to tackle them.
c
34. The order dated 4.6.2011 passed under Section 144
Cr.P.C. reads as under:
"(i) whereas information has been received that some
people/groups of people indulge in unlawful activities to D
disturb the peace and tranquillity in the area of Sub Div.
Kamla Market, Delhi.
(ii) And whereas reports have been received indicating that
such conditions now exist that unrestricted holding of public
meeting, processions/demonstration etc. in the area is E
likely to cause obstruction to traffic, danger to human safety
and disturbance of public tranquillity.
(iii) And whereas it is necessary to take speedy measures
in this regard to prevent danger to human life, safety and F
disturbance of public tranquillity.
(iv) Now, therefore, in exercise of the powers conferred
upon me by virtue of Section 144 Criminal Procedure
Code 1973 read with Govt. of India, Ministry of Home
Affairs and New Delhi's Notification No. U.11036/1/2010, G
(i) UTI, dated 09.09.2010. I Manohar Singh, Assistant
Commissioner of Police, Sub-Division Kamla Market,
Central District, Delhi do hereby make this written order
prohibiting.
H
1150 SUPREME COURT REPORTS [2012] 4 S.C.R.
A xx xx xx
(vi) Any person contravening this order shall be liable to
be punished in accordance with the provisions of section
188 of the Indian Penal Code; and
B (vii) As the notice cannot be served individually on all
concerned, the order is hereby passed ex-parte. It shall be
published for the information of the public through the press
and by affixing copies on the notice boards of the office
of all DCPs, Addi. DCPs, ACPs, Tehsil officers, all police
c stations concerned and the offices of the NDMC and MCD.
(viii) Religious functions/public meeting etc. can be held
with prior permission, in writing, of Deputy Commissioner
of Police, Central District, Delhi and this order shall not
D apply to processions which have the requisite permission
of the Police."
35. It is evident from the order passed under Section 144
Cr.P.C. itself that the people at large, sleeping in tents, had not
been informed about such promulgation and were not asked
E to leave the place. There had been a dispute regarding the
service of the orders on the organizers only. Therefore, there
was utter confusion and the gathering could not even
understand what the ?real dispute was and had reason to
believe that police was trying to evict Baba Ramdev forcibly.
F At no point of time, the assembly was declared to be unlawful.
In such a fact-situation, the police administration is to be
blamed for not implementing the order, by strict adherence to
the procedural requirements. People at large have a legitimate
expectation that Executive Authority would ensure strict
G compliance to the procedural requirements and would certainly
not act in derogation of applicable regulations. Thus, the present
is a clear cut case of Human Rights violation.
36. There was no gossip or discussion of something untrue
H that was going on. To the contrary, it was admittedly an
IN RE: RAMLILA MAIDAN INCIDENT DT.4/5.06.2011 v. HOME 1151
SECRETARY, UNION OF INDIA [DR B.S. CHAUHAN, J.]
assembly of followers, under a peaceful banner of Yogic A
training, fast asleep. The assembly was at least, purportedly,
a conglomeration of individuals gathered together, expressive
of a determination to improve the material condition of the
human race. The aim of the assembly was prima facie
unobjectionable and was not to inflame passions. It was to ward B
off something harmful. What was suspicious or conspiratory
about the assembly, may require an investigation by the
appropriate forum, but to my mind the implementation appears
to have been done in an unlawful and derogatory manner that
did violate the basic human rights of the crowd to have a sound c
sleep which is also a constitutional freedom, acknowledged
under Article 21 of the Constitution of India.
37. Such an assembly is necessarily illegal cannot be
presumed, and even if it was, the individuals were all asleep
who were taken by surprise altogether for a simultaneous D
implementation and action under Section 144 Cr.P.C. without
being preceded by an announcement or even otherwise, giving
no time in a reasonable way to the assembly to disperse from
the Ramlila Ground. To the contrary, the sleep of this huge
crowd was immodestly and brutally outraged and it was E
dispersed by force making them flee hither and thither, which
by such precipitate action, caused a mayhem that was reflected
in the media.
38. An individual is entitled to sleep as comfortably and F
as freely as he breathes. Sleep is essential for a human being
to maintain the delica!e balance of health necessary for its very
existence and survival. Sleep is, therefore, a fundamental and
basic requirement without which the existence of life itself would
be in peril. To disturb sleep, therefore, would amount to torture G
which is now accepted as a violation of human right. It would
be similar to a third degree method which at times is sought
to be justified as a necessary police action to extract the truth
out of an accused involved in heinous and cold-blooded crimes.
It is also a device adopted during warfare where prisoners of
H
1152 SUPREME COURT REPORTS (2012] 4 S.C.R.
A war and those involved in espionage are subjected to
treatments depriving them of normal sleep.
39. Can such an attempt be permitted or justified in the
given circumstances of the present case? Judicially and on the
strength of impartial logic, the answer has to be in the negative
8
as a sleeping crpwd cannot be included within the bracket of
an unlawful category unless there is sufficient material to brand
it as such. The facts as uncovered and the procedural mandate
having been blatantly violated, is malice in law and also the part
played by the police and administration shows the outrageous
C behaviour which cannot be justified by law in any civilized
society. For the reasons aforesaid, I concur with the directions
issued by my learned colleague with a forewarning to the
respondents to prevent any repetition of such hasty and
unwarranted act affecting the safe living conditions of the
D citizens/persons in this country.
B.B.B. Suo Motu Writ Petition disposed of.
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