Holding

Peaceful protests are a fundamental right that may be permitted in a guarded and regulated manner, and the State must replace blanket bans under Section 144 with detailed guidelines to balance the rights of protestors and residents.

Summary

The Supreme Court examined a public interest litigation filed by Mazdoor Kisan Shakti Sangathan challenging the repeated issuance of Section 144 orders that effectively banned all public meetings, dharnas and peaceful protests in Central Delhi, and the National Green Tribunal's order banning demonstrations at Jantar Mantar. The Court held that the right to peaceful assembly and protest under Articles 19(1)(a) and 19(1)(b) is a fundamental right, but it is subject to reasonable restrictions in the interest of public order and the rights of residents under Article 21. It observed that the continuous renewal of Section 144 orders amounted to a de facto ban rather than regulation and that the authorities had failed to take adequate measures to balance the interests of protestors and local residents. The Court directed the Commissioner of Police, New Delhi, in consultation with other agencies, to formulate detailed guidelines within two months for the regulated use of Jantar Mantar and the Boat Club area for peaceful protests, ensuring that such activities do not cause inconvenience or health hazards to residents. The orders of the NGT were upheld in principle but the Court emphasized that a complete ban is impermissible and that a limited, guarded use of the area is permissible.

Issues considered

The constitutionality of repeated Section 144 orders that effectively ban all public meetings and protests in Central Delhi
The validity of the National Green Tribunal's order prohibiting demonstrations at Jantar Mantar
Whether the right to peaceful protest under Articles 19(1)(a) and 19(1)(b) can be restricted in favour of residents' right to life and health under Article 21
The appropriate test for restricting protests – "apprehension of breach of peace" versus "clear and present danger"
The need for and scope of guidelines to regulate peaceful protests in sensitive areas

Legislation cited

Code of Criminal Procedure, 1973s. Section 144
Constitution of Indias. Article 19(1)(a), s. Article 19(1)(b), s. Article 19(2), s. Article 19(3), s. Article 21
Delhi Police Act, 1978
Environment (Protection) Act, 1986s. Noise Pollution (Regulation and Control) Rules, 2000

Subjects

Right to protestSection 144Fundamental rightsBalancing of rightsPublic orderNoise pollutionJantar MantarGuidelines for demonstrationsFreedom of speechFreedom of assembly

Judgment

586 [2018] REPORTS
SUPREME COURT 11 S.C.R. 586 [2018] 11 S.C.R.

A MAZDOOR KISAN SHAKTI SANGATHAN
v.
THE UNION OF INDIA & ANR.
(Writ Petition (Civil) No.1153 of 2017)
B JULY 23, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Constitution of India:
Arts. 32, 19(1)(a) and 19(1)(b) – Right to protest – Right to
C assemble peaceably and without arms – Writ petitions seeking
quashing of the repeated imposition of police order u/s. 144 Cr.P.C.
by which Central Delhi area declared as prohibited area for holding
public meetings, dharna, peaceful protests; quashing of the order
of NGT prohibiting/banning demonstrations at Jantar Mantar road;
and issuance of writ of mandamus laying down the guidelines for
D
holding public meetings, dharnas – Held: Right of people to hold
peaceful protests and demonstrations etc. is a fundamental right
guaranteed u/Art. 19(1)(a) and 19(1)(b) – Peaceful protests and
demonstrations, can be allowed in a guarded and regulated manner,
to enable the protestors to exercise their right, ensuring that no
E inconvenience of any kind is caused to the residents – There could
be balancing of the rights of both the protestors and the residents –
For quite some time Jantar Mantar has been chosen as a place for
holding demonstrations and was earmarked by the authorities as
well – However, pathetic conditions were caused as a result of the
processions, demonstrations and agitations etc. since the authorities
F
did not take necessary measures to regulate the same – Ramlila
Maidan earmarked for such demonstrations etc, may not be
sufficient to cater to this requirement – Since, Jantar Mantar was
the area chosen by the authorities and has been in use for quite
sometime, balancing can be done by permitting a limited part of
G this area for holding peaceful public meetings, processions etc. such
that no disturbance or inconvenience of any nature is caused to the
residents – Commissioner of Police, New Delhi in consultation with
other concerned agencies, to frame proper guidelines for regulating
such protests, demonstrations iin Jantar Mantar and Boat Club area.
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Arts. 19(1)(a), 19(1)(b) – Right to protest – Held: Holding A
peaceful demonstrations by the citizenry to air its grievances is a
fundamental right, enshrined u/Art.19(1)(a) and 19(1)(b), subject
to reasonable restrictions, which can be imposed in the interests of
sovereignty and integrity of India or public order – Legitimate dissent
is a distinguishable feature of any democracy – It is not whether
B
the issue raised by protestors is right or wrong or is justified or
unjustified – Fundamental aspect is the right which is conferred
upon the affected people in a democracy to voice their grievances
– This right is crucial in a vibrant democracy like India but more so
in the Indian context to aid in the assertion of the rights of the
marginalised and poorly represented minorities. C
Arts. 19(1)(a), 19(1)(b) and 21 – Fundamental rights – Right
of protestors u/Art. 19(1)(a) and 19(1)(b) vis-a-vis the rights of the
residents u/Art. 21 – Balancing of the two rights – Held: Situations
arise where there is conflict between two fundamental rights – In
respect of some person one fundamental right enjoyed by him may D
come in conflict with the other fundamental right guaranteed to
him – Principle of primacy cannot be given to one right whereby
the right of the other gets totally extinguished – Total extinction is
not balancing – Balancing would mean curtailing one right of one
class to some extent so that the right of the other class is also protected
– While balancing the two conflicting rights, the Court is to examine E
the larger public interest, which would ultimately prevail.
Code of Criminal Procedure, 1973: s. 144 – Repeated
imposition of police order u/s. 144 Cr.P.C. by which Central Delhi
area declared as prohibited area for holding public meeting, dharna
or peaceful protest – Held: These orders do not, on their face, appear F
to be illegal as they prohibit public meetings, assembly of five or
more persons, processions, demonstrations, dharnas, etc. ‘without
written permission’ – Further , such orders are passed on the basis
of intelligence reports which indicate that ‘unrestricted holding of
public meetings’, processions, demonstrations, etc. in the area are G
likely to cause obstruction to traffic, danger to human safety and
disturbance of public tranquility – Reading of these orders would
indicate that there is no absolute prohibition from holding public
meetings, processions, demonstrations, etc – Such activities are to
be restricted in larger public interest and, therefore, before any group
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588 SUPREME COURT REPORTS [2018] 11 S.C.R.

A of persons or person wants to carry out any such processions and
dharnas, it has to take prior written permission – Furthermore,
repeated order passed u/s. 144 in continuum, have created a situation
of perpetuity – Orders issued u/s. 144 prohibit certain activities in
the nature of demonstrations etc. ‘without permission’, meaning
thereby permission can be granted in certain cases – However, in
B
reality no such activities are allowed at all and, therefore, the
situation which is created amounts to ‘banning’ these public
meetings, demonstrations, dharnas, etc. altogether rather than
‘regulating’ the same.
Disposing of the matters, the Court
C
HELD: 1. Certain categories of peaceful protests and
demonstrations, in a guarded and regulated manner, could be
allowed so as to enable the protestors to exercise their right
and, at the same time, ensuring that no inconvenience of any
kind is caused to the residents. The Commissioner of Police,
D New Delhi and other official respondents can frame proper
guidelines for regulating such protests, demonstrations, etc in
Jantar Mantar and Boat Club area. [Para 62, 70] [640-E-F; 643-
G-H]
2.1 Holding peaceful demonstrations by the citizenry in
E order to air its grievances and to ensure that these grievances
are heard in the relevant quarters, is its fundamental right. This
right is specifically enshrined under Article 19(1)(a) and 19(1)(b)
of the Constitution of India. Article 19(1)(a) confers a vary
valuable right on the citizens, namely, right of free speech.
F Likewise, Article 19(1)(b) gives right to assemble peacefully and
without arms. Together, both these rights ensure that the people
of this country have right to assemble peacefully and protest
against any of the actions or the decisions taken by the
Government or other governmental authorities which are not to
the liking. Legitimate dissent is a distinguishable feature of any
G democracy. Question is not as to whether the issue raised by the
protestors is right or wrong or it is justified or unjustified. The
fundamental aspect is the right which is conferred upon the
affected people in a democracy to voice their grievances.
Dissenters may be in minority. They have a right to express their
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views. A particular cause which, in the first instance, may appear A
to be insignificant or irrelevant may gain momentum and
acceptability when it is duly voiced and debated. That is the reason
that this Court has always protected the valuable right of peaceful
and orderly demonstrations and protests. [Para 48] [628-B-E]
2.2 The right to protest is recognised as a fundamental right B
under the Constitution. This right is crucial in a democracy which
rests on participation of an informed citizenry in governance. This
right is also crucial since it strengthens representative democracy
by enabling direct participation in public affairs where individuals
and groups are able to express dissent and grievances, expose
the flaws in governance and demand accountability from State C
authorities as well a powerful entities. This right is crucial in a
vibrant democracy like India but more so in the Indian context
to aid in the assertion of the rights of the marginalised and poorly
represented minorities. At the same time, the said rights under
Article 19(1)(a) and 19(1)(b) are not untrammeled and unlimited D
in their scope. Article 19(2) to (6) make a specific provision for
imposing reasonable restrictions on the rights conferring
restrictions on the exercise of such rights. It can be deciphered
from the said provisions that exercise of right to speech conferred
in clause (a) and right to assemble peacably and without arms in
clause (b) is made subject to reasonable restrictions which can E
be imposed, inter alia, in the interests of sovereignty and integrity
of India or public order. [Para 54-56] [632-D-G; 633-C]
2.3 The right of protestors u/Art. 19(1)(a) and 19(1)(b) and
the rights of the residents u/Art. 21 are to be balanced as both
the rights are fundamental rights. There may be situations where F
conflict may arise between two fundamental rights. Situation can
be conflict on inter fundamental rights, intra fundamental rights
and, in certain peculiar circumstances, in respect of some person
one fundamental right enjoyed by him may come in conflict with
the other fundamental right guaranteed to him. In all such G
situations, the Court has to examine as to where lies the larger
public interest while balancing the two conflicting rights. It is the
paramount collective interest which would ultimately prevail.
[Paras 57-58] [633-E-H]

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590 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 2.4 Right of people to hold peaceful protests and
demonstrations etc. is a fundamental right guaranteed under
Articles 19(1)(a) and 19(1)(b). The detailed reasoning given by
the NGT that holding of demonstrations in the way it has been
happening is causing serious discomfort and harassment to the
residents, is accepted. At the same time, it is also to be kept in
B
mind that for quite some time Jantar Mantar has been chosen as
a place for holding demonstrations and was earmarked by the
authorities as well. The principle of primacy cannot be given to
one right whereby the right of the other gets totally extinguished.
Total extinction is not balancing. Balancing would mean curtailing
C one right of one class to some extent so that the right of the
other class is also protected. [Para 61] [639-D-G]
2.5 The pathetic conditions which were caused as a result
of the processions, demonstrations and agitations etc. at the
Jantar Mantar were primarily because of the reason that
D authorities did not take necessary measures to regulate the same.
Had adequate and sufficient steps were taken by the authorities
to ensure that such dharnas and demonstrations are held within
their bounds, it would have balanced the rights of protestors as
well as the residents. For example, the dharnas and protests were
allowed to be stretched almost on the entire Jantar Mantar road,
E on both sides, and even across the width of the road. Instead, a
particular area could have been earmarked for this purpose,
sufficiently away from the houses etc. so that there is no
unnecessary blockage of roads and pathways. Likewise, the
demonstrators were allowed to go on with non-stop slogans, even
F at odd hours, at night, and that too with the use of loudspeakers
etc. The authorities could have ensured that such slogans are
within the parameters of noise pollution norms and there are no
shoutings or slogans at night hours or early morning hours. Again,
these dharnas, agitations and processions could be prohibited
on certain occasions, for example, whenever some foreign
G dignitaries visit and pass through the said area or other such
sensitive occasions. The authorities could also ensure that the
protestors do not bring their trucks/buses etc. and park those
vehicles in and around the residential buildings; the protestors
are not allowed to pitch up their tents and stay for days together;
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they are not allowed to bathe or wash their clothes using Delhi A
Jal Board tankers or defecate in the open, on pavements; and do
not create any unhygienic situations. The authorities could also
examine, while allowing such demonstration, as to the number of
protestors who are likely to participate and could refuse
permission to hold any such demonstration etc. when the number
B
is going to be abnormally large which, if allowed, would per se
create hardships of various kinds to the residents. Certain
categories of peaceful protests and demonstrations, in a guarded
and regulated manner, could be allowed so as to enable the
protestors to exercise their right and, at the same time, ensuring
that no inconvenience of any kind is caused to the residents. C
[Para 62] [639-G-H; 640-A-F]
2.6 While discussing the aspect of balancing of two rights,
certain relevant factors have to be kept in mind. It needs to be
noted is that a portion of Ramlila Maidan has been earmarked
for such demonstrations etc. Therefore, that space is already D
available. One of the argument raised by the petitioner in the
writ petition and appellants in the appeal is that Ramlila Maidan
is far away from that portion of New Delhi area where there is a
concentration of ‘power’ and, therefore, holding protests and
demonstration at a far place in Ramlila Maidan would have no
impact or very little effect. It was stressed that the purpose of E
holding such demonstrations and raising slogans is that they
reach concerned persons for whom these are meant. This may
be correct. However, it is also to be borne in mind that in an era
of technology where a concerned voice by a group of persons can
reach the right quarters by numerous means. Electronic and print F
media play a pivotal role. Social media and various applications
like ‘WatsApp’, ‘Twitter’, ‘Instagram’ etc. which take no time in
spreading such events. Though holding protests and
demonstrations is an accepted right, at the same time, nobody
can claim that they have a right to hold demonstration at one
particular area only. While regulating such demonstrations in G
public interest, particular areas can be earmarked. On the other
hand, it is also to be acknowledged that Ramlila Maidan may not
be sufficient to cater to this requirement. Again, this place in old
Delhi is a part of very congested area and it has its own limitations
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A when it comes to using this area for such purposes. Therefore,
some other area is required. Since, Jantar Mantar was the area
chosen by the authorities and has been in use for quite sometime,
balancing can be done by permitting a limited part of this area for
holding peaceful public meetings, processions etc., at least to
small groups and, in such a manner, that there is no disturbance
B
or inconvenience of any nature whatsoever, insofar as residents
are concerned. [Para 64] [641-B-G]
2.7 The Commissioner of Police, New Delhi in consultation
with other concerned agencies, is directed to devise a proper
mechanism for limited use of the area for such purposes but to
C ensure that demonstrations, etc. are regulated in such a manner
that these do not cause any disturbance to the residents of Jantar
Mantar road or the offices situated there. Detailed guidelines in
this respect can be formulated. It is also clarified that a provision
can be made for taking requisite prior permission from the Police
D Commissioner (or his delegated authority) for holding such
demonstration by a particular group and while examining such
proposals the parameters can be laid down which shall be looked
into in order to decide whether the permission is to be granted
or not. Two months’ time is given to the Commissioner of Police,
New Delhi for formulating such guidelines. [Para 65] [641-G-H;
E 642-A-B]
2.8 As regards, the boat club area to be available for
demonstrations, the respondents highlighted in equal measure
the sensitivity of this area because of its proximity to the Parliament
House, North and South Blocks and other Central Government
F offices, including frequent visits of Heads of foreign States and
other such factors. The respondents are also justified in pointing
out that alarmingly large number of requests for holding
demonstrations at this place are made. Further, intelligence
reports reveal that some of such demonstrations, if allowed, may
G cause serious law and order situation. The respondents are also
correct to the extent that this Court has not adopted ‘clear and
present danger test’, as applied by the US Courts, and instead it
is the ‘apprehension of breach of peace test’ which is to be used
in order to decide as to whether a particular demonstration/dharna
is to be allowed or not. When orders passed under Section 144
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MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 593
INDIA & ANR.

Cr.P.C. are examined in this context, one may not find foul with A
such orders. These orders do not, on their face, appear to be
infected with any illegality as they prohibit public meetings,
assembly of five or more persons, processions, demonstrations,
dharnas, etc. ‘without written permission’. Further, such orders
are passed on the basis of intelligence reports which indicate
B
that ‘unrestricted holding of public meetings’, processions,
demonstrations, etc. in the area are likely to cause obstruction
to traffic, danger to human safety and disturbance of public
tranquility. [Para 66] [642-C-G]
2.9 The reading of these orders would indicate that there
is no absolute prohibition from holding public meetings, C
processions, demonstrations, etc. Such activities are to be
restricted in larger public interest and, therefore, before any group
of persons or person wants to carry out any such processions
and dharnas, it has to take prior written permission. This clearly
implies that whenever such a request is made, the authority is to D
examine the same and take a decision as to whether it should
allow the proposed demonstration, public meeting etc. or not,
keeping in view its likely effect, namely, whether it would cause
any obstruction to traffic or danger to human safety or disturbance
to public tranquility etc. If requests made are considered and
then allowed or rejected keeping in view the said considerations, E
there cannot be any quarrel as to the validity of such an order
made under Section 144 of the Cr.P.C. That is, however, not the
ground reality. [Para 68] [643-B-D]
2.10 An order passed under Section 144 Cr.P.C. remains
valid for a period of sixty days which is the limit prescribed in F
that provision. However, just before the expiry of one order,
another identical order is passed. Such repeated orders, in
continuum, have created a situation of perpetuity. It is argued on
behalf of the respondents that as there is no change in the
situation, which remains the same insofar as sensitivity of this G
area and specific/peculiar conditions prevailing, such orders in
repetitive form are necessitated. Even if this position is accepted
and proceed on that basis, this would only mean continuous
regulation of the proposed public meetings, processions,
demonstrations, etc. by not allowing the same in ‘unrestricted’
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A manner. However, in reality no such activities are allowed at all
and, therefore, the situation which is created amounts to ‘banning’
these public meetings, demonstrations, dharnas, etc. altogether
rather than ‘regulating’ the same. [Para 69] [643-E-G]
2.11 The Commissioner of Police, New Delhi and other
B official respondents can frame proper guidelines for regulating
such protests, demonstrations, etc. The orders issued under
Section 144 prohibit certain activities in the nature of
demonstrations etc. ‘without permission’, meaning thereby
permission can be granted in certain cases. There can, therefore,
be proper guidelines laying down the parameters under which
C permission can be granted in the Boat Club area. It can be a very
restrictive and limited use, because of the sensitivities pointed
out by the respondents and also keeping in mind that Ramlila
Maidan is available and Jantar Mantar Road in a regulated
manner shall be available as well, in a couple of months. Thus,
D the proposed guidelines may include the provisions for regulating
the numbers of persons intending to participate in such
demonstrations, prescribing the minimum distance from the
Parliament House, North and South Blocks, Supreme Court,
residences of dignitaries etc. within which no such demonstrations
would be allowed; imposing restrictions on certain routes where
E normally the Prime Minister, Central Ministers, Judges etc pass
through; not permitting any demonstrations when foreign
dignitaries are visiting a particular place or pass through the
particular route; not allowing firearms, lathis, spears, swords, etc.
to be carried by demonstrators; not allowing them to bring animals
F or pitch tents or stay overnight; prescribing time limits for such
demonstrations; and placing restrictions on such demonstrations,
etc. during peak traffic hours. Authorities can permit those
processions and demonstrations which are innocuous by their
very nature. Illustratively, school children carrying out procession
to advance some social cause or candle march by peace loving
G group of persons against a social evil or tragic incident. These
are some of the examples given to signify that such demonstrations
can be effectively regulated by adopting various measures instead
of banning them altogether by rejecting every request for such
demonstrations. [Para 70] [643-H; 644-A-F]
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MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 595
INDIA & ANR.

Bano Bee v. Union of India and Anr. Writ Petition A
(Civil) No. 5000 of 2010; Madhu Limaye v. Sub-
Divisional Magistrate (1970) 3 SCC 746 : [1971] 2
SCR 711; Bimal Gurun v. Union of India (2018) SCC
Online SC 233; Anita Thakur v. Government of Jammu
and Kashmir (2016) 15 SCC 525; Ramlila Maidan
B
Incident v. Home Secretary, Union of India and Others
(2012) 5 SCC 1 : [2012] 4 SCR 971; Babulal Parate v.
State of Maharashtra 1961 (3) SCR 423; Kameshwar
Prasad v. State of Bihar (1962) Supp 3 SCR 369; Himat
Lal K. Shah v. Commissioner of Police, Ahmedabad
(1973) 1 SCC 227 : [1973] 2 SCR 266; Subramanian C
Swamy v. Union of India, Ministry of Law & Ors. (2016)
7 SCC 221 : [2016] 3 SCR 865; Asha Ranjan v. State
of Bihar and Others (2017) 4 SCC 397 – referred to.
De Jonge v. State of Oregon (1973) US Supreme Court;
Shuttlesworth v. City of Birmingham (1969) U.S. D
Supreme Court; Thomas v. Collins (1945) US Supreme
Court; Laporte, R. (on the application of) v. Chief
Constable of Gloucesershire [2006] UKHL 55 –
referred to.
Case Law Reference E

[1971] 2 SCR 711 referred to Para 28
(2016) 15 SCC 525 referred to Para 30
[2012] 4 SCR 971 referred to Para 38 F
[1961] 3 SCR 423 referred to Para 49
[1962] Supp 3 SCR 369 referred to Para 50
[1973] 2 SCR 266 referred to Para 51
G
[2016] 3 SCR 865 referred to Para 59
(2017) 4 SCC 397 referred to Para 60

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596 SUPREME COURT REPORTS [2018] 11 S.C.R.

A CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1153 of 2017
Under Article 32 of the Constitution of India.
WITH
C. A. Nos. 862, 863, 864 of 2018.
B
A. N. S. Nadkarni, ASG, Dr. Shiva Sharma, Rohit Vats, Ms. Monika
Sharma, Daya Krishan Sharma, Prashant Bhushan, KLDS Vinober,
A. Subba Rao, Riju Raj Jamwal, Ms. Madhusmita Bora, Chirag Joshi,
Ghanshyam Joshi, S. S. Shamshery, Rajat Nair, S. Santosh Rebello,
Ms. Nividita Nair, Ms. Sneha Tendulkar, Mayur Jai Singh, Mayri Chawla,
C Ms. Ankhi, Adit Khurana, Ms. Kanu Agarwal, Manan Popli, B. V. Balaram
Das, Shadan Farasat, Suhail Rashid Bhat, Yoginder Handoo, Nishant
Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. Writ Petition (Civil) No. 1153 of 2017, which
D is filed as public interest litigation under Article 32 of the Constitution of
India, challenges the repeated imposition of police order under Section
144 of Code of Criminal Procedure (hereinafter referred to as the
“Cr.P.C.”), whereby ban is imposed by the Assistant Commissioner of
Police, Sub-Division, Parliament Street, New Delhi District prohibiting
the following activities without written permission in the areas known as
E
Parliament House, North and South Block, Central Vista Lawns together
with its surrounding localities and areas:-
“i) The holding of any public meeting;
ii) Assembly of five or more persons;
F iii) Carrying of fire-arms, banners, placards, lathis, spears, swords,
sticks, brickbats etc.
iv) Shouting of slogans;
v) Making of speeches etc.
vi) Processions and demonstrations;
G vii) Picketing or dharnas in any public place within the area
specified in the Schedule and site plan appended to this order”
2. It is the grievance of the petitioner that though a particular
order passed under Section 144 of the Cr.P.C. remains in force for a
period of 60 days, simultaneously on the expiry of the said period of
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60 days another order of identical nature is passed thereby banning the A
holding of public meetings, peaceful assembly and peaceful
demonstrations by the public at large. This, according to the petitioner,
is the arbitrary exercise of power which infringes the fundamental right
of peaceful assembly guaranteed under Article 19(1)(b) of the
Constitution of India. It is stated that by these orders virtually the entire
B
Central Delhi area is declared a prohibited area for holding public meetings
and dharnas or peaceful protests. The petitioner has, thus, sought a writ
of certiorari seeking quashing of these orders passed under Section 144
of the Cr.P.C. and has also prayed for issuance of writ of mandamus or
any other direction laying down the guidelines for holding public meetings,
dharnas, etc. To be precise, the prayers made in the writ petition are of C
the following nature:
“In view of the above-mentioned facts it is respectfully submitted
that this Hon’ble Court may be pleased to:
(a) Issue a writ of certiorari or any other direction to quash the
orders dated 24.01.2017, 25.03.2017, 24.05.2017, 23.07.2017, D
22.09.2017 and 31.10.2017 or any other similar orders issued earlier
or subsequent to these dates by the Delhi Police vide which the
entire Central Delhi/New Delhi has been declared as a prohibited
area;
(c) Declare that imposing a blanket ban on all assemblies in Central E
Delhi/New Delhi area as illegal;
(d) Declare that repeated promulgation of prohibitory orders under
Section 144 of Code of Criminal Procedure as illegal; and
(f) Pass any other or further appropriate writs, orders, or directions
F
as this Hon’ble Court may deem fit and proper in the interests of
justice.”
CIVIL APPEAL NO. 862 OF 2018
3. Civil Appeal No. 862 of 2018, on the other hand, has laid
challenge to the judgment and order passed by the National Green G
Tribunal, Principal Bench, New Delhi (hereinafter referred to as the
“NGT”) in Original Application No. 63 of 2016. This Original Application
was filed by Respondent Nos. 1 to 7, who are the residents of Jantar
Mantar Road. In the said Original Application they had stated that on

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A Jantar Mantar road, particularly the stretch between the Ashoka road
and Parliament street, there are residential houses where people are
living for number of decades by now. This stretch on Jantar Mantar
road, falling between the intersection on Ashoka Road and Parliament
street, has been earmarked as residential area even under the Master
Plat, 2021. the said road, houses not only residences of members of
B
Parliament but also State Guest house of Kerala, office of Delhi Metro
Corporation and offices of political parties. The grievances were that
Jantar Mantar has become a ground for organizing protest by various
categories of groups, political and non-political. Such protests are not
temporary or transient. The protestors have rather put up tents and other
C arrangements where people have been staying for many months. Some
of the structures have been on the site for past several years. It was
also averred that the manner in which the demonstrations are held and
the area occupied by the protesters are causing noise pollution and air
pollution, thereby causing insurmountable and untold miseries to the
residents and causing adverse health effect on the residents and their
D
children.
4. The prayer made in the Original Application was to pass
appropriate orders directing the Police Commissioner and other
government authorities (who were arrayed as respondents) to disallow
the protestors of Jantar Mantar Road stretch between Ashoka Road
E and Parliament Street or prevent them from using loudspeaker or public
announcement system. The NGT after hearing the matter has rendered
its judgment on 5th October, 2017, allowing the Original Application of
Respondent Nos. 1 to 7 with the issuance of following directions:
“I. The respondent Government of Delhi, New Delhi Municipal
F Corporation and Police Commissioner, Delhi to immediately stop
all the activities of dharna, protest, agitations, assembling of people,
public speeches, using of loud speakers, etc. at Jantar Mantar
Road.
II. NDMC is directed to remove all make shifts/temporary
G structures, loud speakers and public address system from the said
stretch of Jantar Mantar road.
III. NDMC is also directed to remove the garbage/waste lying on
the stretch of Jantar Mantar Road and clear the entire area.

H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 599
INDIA & ANR. [A. K. SIKRI, J.]

IV. The respondent shall shift the protestors, agitators and the A
people holding dharnas to the alternative site at Ram Leela Maidan,
Ajmeri Gate, forthwith.
V. The respondents are directed to comply with this order within
four weeks from the date of pronouncement of the judgment.
VI. The Chairman, New Delhi Municipal Corporation, the Police B
Commissioner, Delhi and Government of NCT of Delhi shall file
their respective compliance report before the Tribunal within five
weeks from the date of the judgment.
When such reports are received, the registry is directed to register
the same and place before the Tribunal. There shall be no order C
as to cost.”
5. Civil Appeal No. 862 of 2018 has questioned the validity of the
said order on the ground that these directions violate fundamental right
of the appellants enshrined in Article 19(1)(b) of the Constitution to hold
peaceful demonstrations as the appellants are fighting for the welfare D
and interest of the farmers and holding dharnas at Jantar Mantar for
redressal of the legitimate grievances of these farmers.
CIVIL APPEAL NO. 863 OF 2018
6. Likewise, the appellant in Civil Appeal No. 863 of 2018,
E
aggrieved by the same order of NGT, states that she is the sufferer for
many years for the grave offence of rape by a police officer on 16th
June, 2010 and to attract attention of the concerned persons for redressal
for her grievance she has been continuously sitting on dharna at Jantar
Mantar and with the ban of such dharna by the NGT, her valuable
fundamental right is affected. F
CIVIL APPEAL NO. 864 OF 2018
7. Civil Appeal No. 864 of 2018 is filed by Indian Ex-Serviceman
Movement. This organisation, which is fighting for the rights of the ex-
servicemen, had been holding dharnas, assembly, speeches, etc. at Jantar
Mantar, is precluded from raising its voice because of the order passed G
by the NGT imposing ban on such types of assemblies.
8. The aforesaid introduction in these two cases clearly reveals
the commonality of the issues and legal precepts on the basis of which

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600 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the subject matter of all the cases is to be decided. For this reason, all
the four cases were clubbed together ad heard simultaneously.
FACTS : W.P. (CIVIL) NO. 1153 OF 2017 :-
9. This PIL is filed by the Mazdoor Kisan Shakti Sangathan (for
short, “MKSS”). It is claimed that MKSS is a grassroot, unregistered
B people’s organisation formed in 1990 with its headquarters in Devdungri,
Rajasthan with bank account number 51041231248 in State Bank of
Bikaner and Jaipur, Bhim. The MKSS was a crucial part of the movement
that led to the passage of the Right to Information Act in 2005. The
platform of village based public hearings or “Jan Sunwais” pioneered by
C the MKSS in the mid-1990s became institutionalized in processes of the
government and is also used as a means of public audit across the country.
The MKSS has also been a strong supporter and an integral part of the
movement demanding the Right to Work, which played an important
role in ensuring the passage of the National Rural Employment Guarantee
Act (NREGA) in 2005 in India. The MKSS operates through community
D support for its activities and honorarium for its volunteers. Full time
volunteers receive minimum wages as their honorarium. This comes
through non-tax deductible donations from individuals that the MKSS
receives.
10. It is pointed out in the petition that the Delhi Police has been
E issuing such prohibitory orders under Section 144 of the Cr.P.C. for
several years. It issues fresh orders as soon as the previous order expires.
As per sub-section (4) of Section 144 Cr.P.C., an order can be issued
for a maximum period of two months, therefore, the Delhi Police has
adopted the tactic of issuing the same order repeatedly as a result of
F which for the last several years, the entire Central Delhi area is a prohibited
area for the purposes of holding dharnas, peaceful demonstrations, etc.
11. The petitioner has annexed these orders dated 24th January,
2017, 25th March, 2017, 24th May, 2017, 23rd July, 2017, 22nd September,
2017 and 31st October, 2017 as Annexures P-1 to P-6 respectively. All
G the orders are identically worded. For the sake of clarity, it would be
apposite to reproduce text of one such order dated 25th March, 2017,
which is as under:
“ ORDER
1. Whereas the areas known as Parliament House, North & South
H Block, Central Vista lawns together with its surrounding localities
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 601
INDIA & ANR. [A. K. SIKRI, J.]

and areas, are busy places frequented by heavy vehicular and A
pedestrian traffic.
2. And whereas reports have been received indicating that such
conditions now exist that unrestricted holding of public meetings,
processions/demonstrations etc. in the area are likely to cause
obstruction to traffic, danger to human safety and disturbance of B
public tranquility.
3. And whereas it is necessary to take speedy measures in this
behalf to prevent danger to human life or safety and disturbance
of public tranquility.
4. Now, therefore, in exercise of the powers conferred upon me C
by the virtue of Section 144 Cr.P.C., 1973 (No. 2 of 1974) read
with Govt. of India, Ministry of Home Affairs, New Delhi’s
Notification No. U-11036/(i) UTL dated 9.9.2010, I, Ved Bhushan,
Asstt. Commissioner of Police of Sub-Division Parliament Street
of New Delhi District do hereby make this written order prohibiting: D
“i) The holding of any public meeting;
ii) Assembly of five or more persons;
iii) Carrying of fire-arms, banners, placards, lathis, spears,
swords, sticks, brickbats etc.
E
iv) Shouting of slogans;
v) Making of speeches etc.
vi) Processions and demonstrations;
vii) Picketing or dharnas in any public place within the area F
specified in the Schedule and site plan appended to this order;
5. The specific area covered by this prohibitory order, will be the
area and building surrounded by Sansad Marg/opposite Registrar
of Co-operative Societies, Old Court Building, towards Sansad
Marg/Ashoka Road crossing, Ashoka Road, Windsor Place G
(inclusive Road), Ashoka Road upto Man Singh Road/Ashoka
Road R/A, T/R Man Singh Road (exclusive) upto Rajpath, then
T/R on Rajpath (inclusive) upto Vijay Chowk , then T/L upto South
Fountain, T/R Dalhousie Road upto R/A Dalhousie Road/ Rajaji
Marg/Dalhousie Road (exclusive R/A), T/R South Block, Rajpath,
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602 SUPREME COURT REPORTS [2018] 11 S.C.R.

A North Block, Central Sectt., Church Road upto Gate No. 35 of
Rashtrapati Bhawan including MP Flats, North Avenue upto R/A
RML (exclusive), Baba Khark Singh Marg upto Gole Dakkhana
(exclusive) T/R Ashoka Road T/L Jai Singh Road, excluding
Sansad Marg/Tolstoy Marg crossing, Sansad Marg upto Registrar
of Co-operative Societies, Old Court Building and Jantar Mantar
B
Road/Tolstoy Marg Crossing, Jantar Mantar Road upto R/A Jantar
Mantar Road and Ashoka Road. A details map of this area is
enclosed as Annexure to this order.
6. This order shall come into force with effect from 26.03.2017
and shall remain in force for a period of 60 days, i.e., up to
C 24.05.2017 (both days inclusive) unless withdrawn earlier.
7. Any person contravening this order shall be punishable under
Section 188 of Indian Penal Code.
8. As the notice cannot be served individually on all concerned,
D the order is hereby passed ‘Ex-Parte’. It shall be published for
the information of public through Press and by affixing copies on
the notice boards of the offices of all District Addl. CsP/DcsP/
Addl. DcsP, AcsP, Tehsil Offices, all Police Stations concerned
and the offices of the NDMs and MCD.
(Ved Bhushan)
E
Asst. Commissioner of Police,
Sub-Division Parliament Street
New Delhi District”
12. It is averted that Delhi is the national capital, the centre of
power and hence aggrieved citizens from all over the country throng the
F city to get their voices heard. Mass protests have been prevalent in
Delhi since colonial times in the form of hartals, satyagraha against the
British rule and later Emergency era protests, kisan agitations, Mandal
Commission protests, the Jan Lokpal aandolan and the December 2012
gang-rape protests, to name a few. Upto the 1980s citizens of this country
G had unrestricted rights to hold dharnas, protests and agitations in the
Boat Club lawns near India Gate along the Rajpath road. After the
Mahendra Singh Tikait agitation, protests at Boat Club lawns were
restricted. In fact the unrestricted right to protest was severely curtailed
and the entire Central Delhi, which is close to the establishment offices,
has been turned into a fortress and the fundamental rights of the citizens
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 603
INDIA & ANR. [A. K. SIKRI, J.]

are completely denied thereby. However from 1993 till recently, the A
only place where the protests were allowed was Jantar Mantar.
13. When attempts were made to restrict protest at Jantar Mantar,
the Delhi Police’s repeated orders banning protests in Central Delhi were
challenged by a Bhopal Gas Pidit Mahaila Stationary Karamchari Sangh
member in 2010 before the Delhi High Court, who had come along with B
other activists to Delhi to raise a protest because of the failure of the
Government of India to set up an empowered commission to look into
the problems of the victims of toxic gases leak from the plant of the
Union Carbide in 1984 but the same protests were being rendered unfruitful
because of the orders of the Delhi Police continuously imposing
restrictions on the right to protest in Central Delhi. The High Court on C
31st May, 2011, disposed of the petition when the Delhi Police filed an
affidavit stating that the continuous prohibition under Section 144 of the
Cr.P.C. under the jurisdiction of the New Delhi District declaring certain
areas as prohibited area for holding any public meeting, dharna, peaceful
protest, etc. has been discontinued. Despite this, the practice of repeated D
imposition of orders under Section 144 continues, severely restricting
the citizens’ fundamental right to protest and peaceful assembly.
14. The petitioner also states that the Delhi Police has even
advertised for protesters to use Jantar Mantar as the site of protest.
However, on 5th October, 2017, the NGT has entirely banned protests at E
Jantar Mantar on the grounds that it creates a nuisance for the residents
of the area and violates environment protection statutes. This order is,
however, in complete violation of a citizen’s fundamental right to peaceful
assembly. With the NGT order banning protests at Jantar Mantar, it is
evident that distancing a protest site from where it is most visible to the
government and concerned authorities, will have the effect of diluting F
the impact that the protest seeks to gain. Jantar Mantar has been the
site for peaceful protests since 1993 and by the nature of the stretch of
road, it is an easily managed and contained space. It gave poor protesters
a chance to get food from the gurudwara nearby and gave them a sense
of greater visibility, considering the proximity of the venue to the G
Parliament. With the shifting of the protest site to Ramlila Maidan, there
is a fear that this will further distance protesters from a site where they
had greater visibility and is hence an unreasonable restriction on the
freedom to protest and right to peaceful assembly. Besides the cost of

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604 SUPREME COURT REPORTS [2018] 11 S.C.R.

A using Ramlila Maidan for protests is Rs. 50,000/- per day which would
make protests at the site practically impossible for the common citizen.
15. Mr. Prashant Bhushan, learned counsel arguing in support of
the prayers made in this petition, referred to certain relevant provisions
of the Cr.P.C. including Section 144 thereof and also that of Delhi Police
B Act, 1978. He submitted that holding peaceful demonstration by people
in order to air grievances and to see that their voice is heard in the
relevant quarters, is the right of the people. Such a right can be traced to
the fundamental system guaranteed under Articles 19(1)(a) and 19(1)(b)
of the Constitution. Article 19(1)(b) specifically confers a right to assembly
and, thus, guarantees that all citizens have right to assemble peacefully
C and without arms. He submitted that by various pronouncements, this
Court as well as High Courts have upheld this fundamental right of the
citizens, i.e., right to protest and assemble peacefully without arms is a
distinguishing feature of any democracy and it is this feature that provides
space for legitimate dissent. It encompasses the right to express
D grievances through direct action or peaceful protest. Organized non-
violent protest marches were a key weapon in the struggle for
independence and the right to peaceful protest is now recognised as a
fundamental right in the Constitution. He accepted that while on the one
hand, citizens are guaranteed fundamental right of speech and the right
to assemble for the purpose of carrying peaceful protest/processions, on
E the other hand, reasonable restrictions on such rights can be placed by
law. Provisions of the Indian Penal code (for short, ‘IPC’) and Cr.P.C.
are in the nature of such reasonable restrictions, which are statutory
provisions giving powers to the State to ensure that such public
assemblies, protests, dharnas or marches are peaceful and they do not
F become unlawful. However, his submission was that while exercising
such powers the authorities are supposed to act within the limits of law
and cannot indulge in excesses in what can be seen as another bid to
stifle and impose unreasonable restrictions on the right to peaceful
assembly.
G 16. The submission of Mr. Prashant Bhushan was that having
regard to the aforesaid constitutional position, provision of Section 144
of the Cr.P.C. could be used only in emergent situation when there is
sufficient ground for proceeding under that Section and there is need for
immediate prevention or speedy remedy is desirable. In this behalf, he
drew sustenance from the order dated 31st May, 2011 of Delhi High
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 605
INDIA & ANR. [A. K. SIKRI, J.]

Court in the case of Bano Bee v. Union of India and Anr.1 wherein A
similar type of blanket ban on all assemblies in Central Delhi/New Delhi
by repeated promulgation of prohibitory order under Section 144 of the
Cr.P.C. was deprecated. He referred to the following discussion in the
said judgment:
“5. Ordinarily we would have dealt with the law laid down in B
Himmat Lal K. Shah Case (supra) and another decision rendered
in Babulal Parate v. The State of Maharashtra and Ors. (AIR
1961 SC 884) by the Constitution Bench, but we have come across
a decision in Acharya Jagdishwaranand Avadhuta v. Commissioner
of Police, Calcutta and another, (AIR 1984 SC 51) wherein it has
been held as follows: C

“The other aspect, viz., the propriety of repetitive prohibitory
orders is, however, to our mind a serious matter and since long
arguments have been advanced, we propose to deal with it. In
this case as a fact from October 1979 till 1982 at the interval
of almost two months orders under Section 144(1) of the Code D
have been made from time to time. It is not disputed before us
that the power conferred under this section is intended for
immediate prevention of breach of peace or speedy remedy.
An order made under this section is to remain valid for two
months from the date of its making as provided in sub-section E
(4) of Section 144. The proviso to sub-section (4) authorises
the State Government in case it considers it necessary so to do
for preventing danger to human life, health or safety, or for
preventing a riot or any affray, to direct by notification that an
order made by a Magistrate may remain in force for a further
period not exceeding six months from the date on which the F
order made by the Magistrate would have, but for such order,
expired. The effect of the proviso, therefore, is that the State
Government would be entitled to give the prohibitory order an
additional term of life but that would be limited to six months
beyond the two months’ period in terms of sub-section (4) of G
Section 144 of the Code. Several decisions of different High
Courts have rightly taken the view that it is not legitimate to go
on making successive orders after earlier orders have lapsed
by efflux of time. A Full Bench consisting of the entire Court
1
Writ Petition (Civil) No. 5000 of 2010 H
606 SUPREME COURT REPORTS [2018] 11 S.C.R.

A of 12 Judges in Gopi Mohun Mullick v. Taramoni Chowdhrani
examining the provisions of Section 518 of the Code of 1861
(corresponding to present Section 144) took the view that such
an action was beyond the Magistrate’s powers. Making of
successive orders was disapproved by the Division Bench of
the Calcutta High Court in Bishessur Chuckerbutty v. Emperor.
B
Similar view was taken in Swaminatha Mudaliar v.
Gopalakrishna Naidu, Taturam Sahu v. State of Orissa, Ram
Das Gaur v. City Magistrate, Varanasi, and Ram Narain Sah
v. Parmeshar Prasad Sah. We have no doubt that the ratio of
these decisions represents a correct statement of the legal
C position. The proviso to sub-section (4) of Section 144 which
gives the State Government jurisdiction to extend the prohibitory
order for a maximum period of six months beyond the life of
the order made by the Magistrate is clearly indicative of the
position that Parliament never intended the life of an order
under Section 144 of the Code to remain in force beyond two
D
months when made by a Magistrate. The scheme of that
section does not contemplate repetitive orders and in case the
situation so warrants steps have to be taken under other
provisions of the law such as Section 107 or Section 145 of the
Code when individual disputes are raised and to meet a situation
E such as here, there are provisions to be found in the Police
Act. If repetitive orders are made it would clearly amount to
abuse of the power conferred by Section 144 of the Code. It is
relevant to advert to the decision of this Court in Babulal Parate
v. State of Maharashtra where the vires of Section 144 of the
Code was challenged. Upholding the provision, this Court
F
observed:
“Public order has to be maintained in advance in order to ensure
it and, therefore, it is competent to a legislature to pass a law
permitting an appropriate authority to take anticipatory action
or place anticipatory restrictions upon particular kinds of acts
G in an emergency for the purpose of maintaining public order....”
It was again emphasized (at p.891 of AIR):
“But it is difficult to say that an anticipatory action taken by
such an authority in an emergency where danger to public order
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 607
INDIA & ANR. [A. K. SIKRI, J.]

is genuinely apprehended is anything other than an action done A
in the discharge of the duty to maintain order....”
This Court had, therefore, appropriately stressed upon the
feature that the provision of Section 144 of the Code was
intended to meet an emergency. This postulates a situation
temporary in character and, therefore, the duration of an order B
under Section 144 of the Code could never have been intended
to be semi-permanent in character.”
17. The aforesaid writ petition was disposed of after taking note
of the fact that continuous prohibition under Section 144 of Cr.P.C. under
jurisdiction of New Delhi District had been discontinued and a statement C
was also made by the respondents that this provision would not be invoked
as and when unwarranted except in emergent situation. Contrary to the
aforesaid stand taken by the respondents in the said case, submitted Mr.
Bhushan, the respondents had started adopting the same tactics of issuing
repeated orders under Section 144, Cr.P.C. This practice, according to
the learned counsel, was anathema in a democratic set up where people D
have been guaranteed freedom of speech and freedom of assembly to
vent out their grievance. He submitted that it was a valuable right which
was given to the citizenry to let off their esteem and if that right of
peaceful demonstration is not allowed, it may take a violent turn.
18. Mr. Bhushan, learned counsel, referred to various judgments E
where such a right is recognised as fundamental right.
19. He also referred to certain other judgments2 to buttress his
submission that the powers under Section 144 of Cr.P.C. are intended to
be used for preventing disorders, obstructions and annoyances.
F
20. Mr. Bhushan went to the extent of citing international standards,
conventions and judgments of foreign courts on the right to peaceful
assembly and the right to protest. In support of his submission that such
a right had been recognised world over in all democratic countries
governed by rule of law, he referred to international conventions like
Universal Declaration of Human Rights, International Covenant on Civil G
and Political Right and Convention on the Rights of the Child. He also
relied upon the Guidelines on Freedom of Peaceful Assembly, issued by
Organisation for Security and Co-operation in Europe (OSCE) and
2
(1970) 3 SCC 746, 1961 (3) SCR 423, (2012) 5 SCC 1, (1978) 1 SCC 226, (1973) 1
SCC 227, (1983) 4 SCC 522 H
608 SUPREME COURT REPORTS [2018] 11 S.C.R.

A Council of Europe’s Commission for Democracy through Law (Venice
Commission). In addition, Mr. Prashant Bhushan also referred to
literature contained in United Nations Human Rights Council Special
Rapporteur Reports on the rights to freedom of peaceful assembly and
of association. Some of the judgments3 rendered by U.S. Supreme Court
and U.K. Courts were also cited by Mr. Prashant Bhushan.
B
21. While concluding his submissions, Mr. Bhushan argued that
the Boat Club area in New Delhi/Central Delhi had also been treated as
most suitable place for holding peaceful demonstrations. According to
him, it was no solution earmarking the area for demonstration in Ramlila
Maidan. It was not a suitable alternative and no solution inasmuch as it
C was far away from the Central Delhi where offices of the Central
Government were located. The very purpose of demonstration is to
ensure that voice of demonstrators is heard by the decision makers so
that it has adequate impact. If the demonstrators like the petitioners are
driven to far away place in Ramlila Maidan in Old Delhi, the very purpose
D of peaceful demonstration would be rendered meaningless which would
clearly amount to violating rights of the petitioner under Articles 19(1)(a)
and 19(1)(b) of the Constitution. In this way, argued the learned counsel,
the respondents were treating their citizens as their servants. He also
submitted that the impugned orders were based on the assumption that
whenever there is a demonstration or dharna in New Delhi area, it would
E lead to violence which was an uncalled for assumption. His plea was
that if any particular group has such antecedents of becoming violent,
such group can always be prevented from holding demonstrations. For
this purpose respondents can always have vigilance inputs. However,
there is no reason or rationale in putting a general and complete ban on
F peaceful demonstrations.
22. M/s. Tushar Mehta and A.N.S. Nadkarni, learned Additional
Solicitor Generals, made a strong refutation to the aforesaid arguments
of the petitioner. Laying much stress on the sensitive character of the
area in question, to justify the issuance of orders passed under Section
G 144 of the Cr.P.C., they made a fervent plea to uphold these orders.
Referring to certain passages from Babulal Parate2, it was submitted
that ‘clear and present danger’ test which was applied by US Courts in
3
De Jonge v. State of Oregon; [(1973) US Supreme Court], Shuttlesworth v. City of
Birmingham; [(1969) U.S. Supreme Court], Thomas v. Collins; [(1945) US Supreme
Court] and Laporte, R. (on the application of) v. Chief Constable of Gloucesershire;
H [2006] UKHL 55
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 609
INDIA & ANR. [A. K. SIKRI, J.]

such cases was not applicable in the Indian context and the correct test A
as applied by this Court was that of ‘apprehension of breach of peace’
test. Specific reliance was placed on the following paragraphs from
Babulal Parate2 .
“14. Looking at the section as a whole it would be clear that,
broadly speaking, it is intended to be availed of for preventing B
disorders, obstructions and annoyances and is intended to secure
the public weal. The powers are exercisable by responsible
Magistrates and these Magistrates have to act judicially. Moreover,
the restraints permissible under the provision are of a temporary
nature and can only be imposed in an emergency.
C
xxx xxx xxx
19. It is contended that Section 144 of the Code of Criminal
Procedure confers very wide powers upon certain Magistrates
and that in exercise of those powers the Magistrates can place
very severe restrictions upon the rights of citizens to freedom of D
speech and expression and to assemble peaceably and without
arms.
20. It seems to us, however, that wide though the power appears
to be, it can be exercised only in an emergency and for the purpose
of preventing obstruction, annoyance or injury to any person E
lawfully employed, or danger to human life, health or safety, or a
disturbance of the public tranquility or a riot, or “an affray”. These
factors condition the exercise of the power and it would
consequently be wrong to regard that power as being unlimited or
untrammelled. Further, it should be borne in mind that no one has
a right to cause “obstruction, annoyance or injury etc”. to anyone. F
Since the judgment has to be of a Magistrate as to whether in the
particular circumstances of a case an order, in exercise of these
powers, should be made or not, we are entitled to assume that the
powers will be exercised legitimately and honestly. The section
cannot be struck down on the ground that the Magistrate may G
possibly abuse his powers.
21. It is also true that initially it is the Magistrate concerned who
has to form an opinion as to the necessity of making an order. The
question, therefore, is whether the conferral of such a wide power
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610 SUPREME COURT REPORTS [2018] 11 S.C.R.

A amounts to an infringement of the rights guaranteed under Article
19(1)(a) and (b) of the Constitution. The rights guaranteed by
sub-clause (a) are not absolute rights but are subject to limitations
specified in clause (2) of Article 19 which runs thus:
“Nothing in sub-clause (a) of clause (1) shall affect the
B operation of any existing law, or prevent the State from making
any law, insofar as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in
the interests of security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation
to contempt of court, defamation or incitement to an offence.”
C
Similarly the rights to which sub-clause (b) relates are subject to
the limitations to be found in clause (3) of Article 19 which runs
thus:
“Nothing in sub-clause (b) of the said clause shall affect the
D operation of any existing law insofar as it imposes, or prevent
the State from making any law imposing, in the interests of
public order, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.”
“The Code of Criminal Procedure was an existing law at the
E commencement of the Constitution and so, in the context of
the grounds on which its validity is challenged before us, what
we have to ascertain is whether the conferral thereunder of a
power on a Magistrate to place restrictions on the rights to
which sub-clauses (a) and (b) of Article 19 relate is reasonable.
It must be borne in mind that the provisions of Section 144 are
F attracted only in an emergency. Thereunder, the initial Judge
of the emergency is, no doubt, the District Magistrate or the
Chief Presidency Magistrate or the Sub-Divisional Magistrate
or any other Magistrate specially empowered by the State
Government. But then, the maintenance of law and order being
G the duty and function of the executive department of the State
it is inevitable that the question of formation of the opinion as
to whether there is an emergency or not must necessarily rest,
in the first instance, with those persons through whom the
executive exercises its functions and discharges its duties. It

H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 611
INDIA & ANR. [A. K. SIKRI, J.]

would be impracticable and even impossible to expect the State A
Government itself to exercise those duties and functions in
each and every case. The provisions of the section therefore
which commit the power in this regard to a Magistrate
belonging to any of the classes referred to therein cannot be
regarded as unreasonable. We may also point out that the
B
satisfaction of the Magistrate as to the necessity of promulgating
an order under Section 144 of the Code of Criminal Procedure
is not made entirely subjective by the section. We may also
mention that though in an appropriate case a Magistrate is
empowered to make an order under this section ex parte the
law requires that he should, where possible serve a notice on C
the person or persons against whom the order is directed before
passing that order. Then sub-section (4) provides that any
Magistrate may either on his own motion or on the application
of any person aggrieved, rescind or alter any order made under
this section. This clearly shows that even where an ex parte
D
order is made the person or persons affected thereby have a
right to challenge the order of the Magistrate. Sub-section (5)
provides that where such a challenge is made, the Magistrate
shall give an early opportunity to the person concerned of
appearing before him and showing cause against the order.
The decision of the Magistrate in such a proceeding would E
undoubtedly be a judicial one inasmuch as it will have been
arrived at after hearing the party affected by the order. Since
the proceeding before the Magistrate would be a judicial one,
he will have to set aside the order unless he comes to the
conclusion that the grounds on which it rests are in law
F
sufficient to warrant it. Further, since the propriety of the order
is open to challenge it cannot be said that by reason of the
wide amplitude of the power which Section 144 confers on
certain Magistrates it places unreasonable restrictions on
certain fundamental rights.
23. The argument that the test of determining criminality in G
advance is unreasonable, is apparently founded upon the doctrine
adumbrated in Scheneck case [Scheneck v. U.S., 249, US 47]
that previous restraints on the exercise of fundamental rights are
permissible only if there be a clear and present danger. It seems
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612 SUPREME COURT REPORTS [2018] 11 S.C.R.

A to us, however, that the American doctrine cannot be imported
under our Constitution because the fundamental rights guaranteed
under Article 19(1) of the Constitution are not absolute rights but,
as pointed out in State of Madras v. V.G. Row [1952 SCR 597]
are subject to the restrictions placed in the subsequent clauses of
Article 19. There is nothing in the American Constitution
B
corresponding to clauses (2) to (6) of Article 19 of our Constitution.
The Fourteenth Amendment to the U.S. Constitution provides,
among other things, that “no State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
C or property, without due process of law; ….”.
24. The framework of our Constitution is different from that of
the Constitution of the United States. Then again, the Supreme
Court of the United States has held that the privileges and
immunities conferred by the Constitution are subject to social
D control by resort to the doctrine of police power. It is in the light of
this background that the test laid down in Scheneck
case [Scheneck v. U.S., 249, US 47] has to be understood.
25. The language of Section 144 is somewhat different. The test
laid down in the section is not merely “likelihood” or “tendency”.
E 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 apprehension of danger.

F 26. Apart from this it is worthy of note that in Scheneck
case [Scheneck v. U.S., 249, US 47] the Supreme Court was
concerned with the right of freedom of speech and it observed:
“It well may be that the prohibition of law abridging the freedom
of speech is not confined to previous restraints, although to prevent
G them may have been the main purpose…. We admit that in many
places and in ordinary times the defendants, in saying all that was
said in the circular, would have been within their constitutional
rights. But the character of every act depends upon the
circumstances in which it is done.… The most stringent protection
of free speech would not protect a man in falsely shouting fire in
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 613
INDIA & ANR. [A. K. SIKRI, J.]

a theatre, and causing a panic. It does not even protect a man A
from an injunction against uttering words that may have all the
effect of force…. The question in 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. It is a
B
question of proximity and degree.”
27. Whatever may be the position in the United States it seems to
us clear that anticipatory action of the kind permissible under
Section 144 is not impermissible under clauses (2) and (3) of Article
19. Both in clause (2) (as amended in 1951) and in clause (3),
power is given to the legislature to make laws placing reasonable C
restrictions on the exercise of the rights conferred by these clauses
in the interest, among other things, of public order. Public order
has to be maintained in advance in order to ensure it and, therefore,
it is competent to a legislature to pass a law permitting an
appropriate authority to take anticipatory action or place D
anticipatory restrictions upon particular kinds of acts in an
emergency for the purpose of maintaining public order. We must,
therefore, reject the contention.
28. It is no doubt true that since the duty to maintain law and
order is cast upon the Magistrate, he must perform that duty and E
not shirk it by prohibiting or restricting the normal activities of the
citizen. But it is difficult to say that an anticipatory action taken by
such an authority in an emergency where danger to public order
is genuinely apprehended is anything other than an action done in
the discharge of the duty to maintain order. In such circumstances
that could be the only mode of discharging the duty. We, therefore, F
reject the contention that Section 144 substitutes suppression of
lawful activity or right for the duty of public authorities to maintain
order.
29. Coming to the order itself we must consider certain objections
of Mr Mani which are, in effect, that there are three features in G
the order which make it unconstitutional. In the first place, according
to him the order is directed against the entire public though the
Magistrate has stated clearly that it was promulgated because of
the serious turn which an industrial dispute had taken. Mr Mani
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614 SUPREME COURT REPORTS [2018] 11 S.C.R.

A contends that it is unreasonable to place restrictions on the
movements of the public in general when there is nothing to suggest
that members of the public were likely to indulge in activities
prejudicial to public order. It is true that there is no suggestion that
the general public was involved in the industrial dispute. It is also
true that by operation of the order the movements of the members
B
of the public would be restricted in particular areas. But it seems
to us that it would be extremely difficult for those who are in
charge of law and order to differentiate between members of the
public and members of the two textile unions and, therefore, the
only practical way in which the particular activities referred to in
C the order could be restrained or restricted would be by making
those restrictions applicable to the public generally.”
23. It was, thus, argued that mere apprehension of breach of peace
was sufficient to prohibit any demonstration or dharna etc. It was also
submitted that Section 144 of the Cr.P.C. permitted anticipatory action
D and, thus, even on anticipation that a particular demonstration may lead
to breach of peace, was sufficient to invoke the provisions of Section
144 Cr.P.C. and pass appropriate prohibitory orders. It was argued that
the impugned orders passed should be examined keeping in view the
aforesaid principles of law and these orders were passed by the
Competent Authority specifying that such demonstrations etc. were likely
E to cause obstruction to traffic and danger to human safety and
disturbances of public tranquility which was specifically stated in para 2
of the orders reading as under:
“And whereas reports have been received indicating that such
conditions now exist that unrestricted holding of public meetings,
F processions/demonstrations etc. in the area are likely to cause
obstruction to traffic, danger to human safety and disturbance of
public tranquility.”
24. It was argued that there was due application of mind by the
Assistant Commissioner of Police who had gone through the reports
G and drew to a conclusion therefrom that unrestricted holding of public
meetings, processions/demonstrations was likely to cause problems like
obstructions to traffic, danger to human safety and disturbances of public
tranquility. The Assistant Commissioner of Police, thus, satisfied the
requirement of Section 144 of Cr.P.C. It was also argued that there was
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 615
INDIA & ANR. [A. K. SIKRI, J.]

no complete ban imposed on such public meetings etc. and the orders A
prohibited these meetings etc. without written permission. In other words,
before holding any such public meetings, processions, demonstrations,
etc. prior permission of the authorities was required which should be
considered on case to case basis.
25. The learned ASGs laid great emphasis on the fact that New B
Delhi was the capital city and entire activity of Central Government was
mainly located in Central Delhi area which was covered by the prohibitory
orders passed, namely, Parliament House, North and South Block, Central
Vista Lawns and its surrounding localities and areas. It was also
emphasised that there were official visits by foreign dignitaries to this
capital city on a regular basis and any untoward incident as a C
consequence of such public meetings, processions, demonstrations,
dharnas, etc had potentials of damaging the reputation of the country
itself. The learned counsel went to the extent of arguing that there had
been instances where, in the past, on the visit of particular Heads of the
Foreign States, attempts were made to hold demonstrations against such D
persons and their visits, which was not conducive for maintaining healthy
bilateral relations between the two countries. The submission in the
aforesaid context was that the area covered by prohibitory orders was
sensitive area and such demonstrations as well as public meetings etc.
could not be allowed in a routine manner. It was also submitted that
Delhi being capital of the country, there was a tendency on the part of E
organizations located throughout the country to come to Delhi and hold
public meetings, processions, demonstrations, etc. Please was that if
such requests are acceded to then there would be nth number of these
public meetings, processions/ demonstrations everyday in Central Delhi
which would jeopardise the normal functioning in the Parliament F
(whenever it is in session) as well as that of the Central Government
offices located in North and South Block.
26. The respondents, for the perusal of the Court, produced the
record pertaining to these requests which were received by the authorities,
showing that alarmingly large number of such requests were received, G
which was clearly unmanageable. Records of the intelligence reports
were also produced for the perusal of the Court to support the plea that
orders passed by the Assistant Commissioner of Police under Section
144 Cr.P.C., were backed by sufficient material depicting due application
of mind.
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616 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 27. The learned ASGs also referred to the annexure annexed
with the counter affidavit filed on behalf of the respondents to this writ
petition. Annexure R-1 gives details of cases of riots registered under
Section 186/353, IPC against protest through demonstration for the period
from March, 2015 to 5th April, 2018, which shows that most of the
time such protest/demonstrations were turning violent leading to
B
commission of crimes under the aforesaid provisions of the IPC. Annexure
R-2 gives details of persons who were detained under Section 65 of the
Delhi Police Act while holding protest/demonstrations during the said
period.
28. It was, thus, submitted that no doubt the petitioner had a right
C to hold dharnas, protests, marches, demonstrations or public meetings
etc. which was their fundamental right. However, such a right was not
untrammeled or absolute but was subject to reasonable restrictions.
Having peculiar conditions prevailing in this area of New Delhi in question,
the impugned orders passed under Section 144 Cr.P.C. amounted to
D reasonable restrictions. Nevertheless, at the same time, in order to ensure
that petitioner and others are able to exercise their right of demonstration,
etc., the area in Ramlila Maidan was specifically earmarked for such
purposes. It was, thus, argued that promulgation of Section 144 Cr.P.C.
was not only a matter of necessity to prevent the breach of public
tranquility, riot, affray, but was also in public interest and public safety.
E Such an order was said to be legally justified on the test of principles laid
down in Madhu Limaye v. Sub-Divisional Magistrate4, where the
Court held as under:
“24..…………….There is no general proposition that an order
under Section 144, Criminal Procedure Code cannot be passed
F without taking evidence: see Mst Jagrupa Kumari v. Chobey
Narain Singh [37 Cr LJ 95] 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
G to 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. We are, however, not concerned
with this part of the section and the validity of this part need not

4
(1970) 3 SCC 746
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 617
INDIA & ANR. [A. K. SIKRI, J.]

be decided here. In so far as the other parts of the section are A
concerned the key-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
legal rights by others or imperil the public safety and health. If
that be so the matter must fall within the restrictions which the
B
Constitution itself visualizes 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.”
29. Reference was also made to the following passage from the
judgment of this court in Bimal Gurun v. Union of India5, wherein it C
was held as under:
“Demonstrations whether political, religious or social or other
demonstrations which create public, disturbances or operate as
nuisances, or create or manifestly threaten some tangible public
or private mischief, are not covered by protection under Article D
19(1). A demonstration might take the form of an assembly and
even then the intention is to convey to the person or authority to
whom the communication is intended the feelings of the group
which assembles. From the very nature of things a demonstration
may take various forms; “it may be noisy and disorderly”, for E
instance stone-throwing by a crowd may be cited as an example
of a violent and disorderly demonstration and this would not
obviously be within Article 19(1)(a) or (b).”
30. Submission was sought to be buttressed by reading the following
extracts from the judgment in the case of Anita Thakur v. Government F
of Jammu and Kashmir6, where this Court noticed that more often
than not, such protesters take to hooliganism, vandism and even destroy
public/private property:
“Before adverting to the issue at hand, we would like to make
some general remarks about the manner in which these G
demonstrations are taking shape. Recent happenings show an
unfortunate trend where such demonstrations and protests are on
increase. There are all kinds of protests: on social issues, on political
5
(2018) SCC Online SC 233
6
(2016) 15 SCC 525
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618 SUPREME COURT REPORTS [2018] 11 S.C.R.

A issues and on demands of various sections of the society of varied
kinds. It is also becoming a common ground that religious, ethnic,
regional language, caste and class divisions are frequently exploited
to foment violence whenever mass demonstrations or dharnas,
etc. take place. It is unfortunate that more often than not, such
protesters take to hooliganism, vandalism and even destroy public/
B
private property. In the process, when police tries to control, the
protesters/mob violently target policemen as well. Unruly groups
and violent demonstrations are so common that people have come
to see them as an appendage of Indian democracy. All these
situations frequently result in police using force. This in turn
C exacerbates public anger against the police. In Kashmir itself there
have been numerous instances where separatist groups have
provoked violence. In this scenario, task of the police and law-
enforcing agencies becomes more difficult and delicate. In curbing
such violence or dispersing unlawful assemblies, police has to
accomplish its task with utmost care, deftness and precision. Thus,
D
on the one hand, law and order needs to be restored and at the
same time, it is also to be ensured that unnecessary force or the
force beyond what is absolutely essential is not used. Policemen
are required to undergo special training to deal with these situations.
Many times the situations turn ugly or go out of control because
E of lack of sufficient training to the police personnel to deal with
violence and challenges to their authority. There are various
documents in the form of police manual and even international
covenants proscribing use of unnecessary force and mandating
that force should only be used when it is absolutely necessary.
Even when used, it should be minimum and proportional to the
F
situation and its use to be discontinued as soon as the danger to
life and property subsides.
37. From the above, it is clear that Article 19(1)(a) and (b) gives
Constitutional right to all citizens freedom of speech and expression
which includes carrying out public demonstration also but public
G demonstration also but public demonstration when becomes violent
and damages the public and private properties and harm lives of
people it goes beyond fundamental rights guaranteed under Article
19(1) and becomes an offence punishable under law.”
[Emphasis supplied]
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 619
INDIA & ANR. [A. K. SIKRI, J.]

31. It was further submitted that the stand of respondents was A
vindicated by the judgment dated 5th October, 2017 passed by NGT in
Original Application No. 63 of 2016 (Varun Seth and Others v. Police
Commissioner, Delhi Police) wherein the NGT judicially recognised
that processions, demonstrations and agitations etc. had become regular
feature, which was noted by the NGT.
B
32. Before we proceed to consider the respective submissions
advanced by counsel for the parties on either side and take a call
therefrom, it would be advisable to take note of the discussion contained
in the judgment dated 5th October, 2017 of NGT in Varun Seth’s case in
the context of Jantar Mantar area. The scope of discussion in the said
judgment, though subject matter of challenge in civil appeals, would give C
more comprehensive picture of the ground realities.
33. The subject matter of the said judgment is confined to the
demonstrations etc. at Jantar Mantar Road, particularly the stretch
between the Ashoka Road and the Parliament Street. It is also relevant
to note that the Original Application before the NGT was filed by the D
residents who have their residential houses on the aforesaid stretch as
the area in question has been earmarked as residential area even under
the Master Plan, 2021. That apart, there are residences of Members of
Parliament as also State Guest House of Kerala, Office of Delhi Metro
Corporation and offices of some of the political parties on the said road. E
34. The NGT noticed that Jantar Mantar Road has become a
ground for raising protest by various category of groups, political and
non-political. Such protests are not temporary or transient. The protestors
have rather put up tents and other arrangements where people have
been staying for many months. Some of the structures have been on the F
side of the street. The organizers of these protests make arrangement
for food, lodging, etc. on such makeshift structures. They have also
affixed loud speakers at various places in the area. NDMC has provided
the facility of sanitation and cleaning by making provision for only two
mobile toilets. The photographs attached to the application clearly depict
the plight of the poor residents, some of them being senior citizens, who G
had been protesting against unhygienic conditions, litters, crowds, noise
pollution, etc. for last couple of years. Apart from it, the personnel of
police/paramilitary force at the said stretch of road, which on some days
of protest go up to around 200 to 400, also adds to the congestion in the
area. The sanitation facility provided in such a situation is grossly H
620 SUPREME COURT REPORTS [2018] 11 S.C.R.

A inadequate which results in smell emanating from the mobile vans and
nearby areas creating unhygienic conditions and low aesthetic value for
the residents and others visiting the area. Moreover, some protestors
under the garb of cow protection have brought in cows to the said stretch
of road and kept them for nearly sixteen months. Even a bullock cart
had been kept at the site by the protestors.
B
35. During the course of heavy protest day, the police completely
blocks the road of Jantar Mantar by barricading which coerces the
residents of the area to park their vehicles elsewhere and make way to
their residences on foot. This becomes extremely difficult for senior
citizens and small children. In fact, there had been instances of medical
C emergencies where police had to plough the ambulance through the
vehicles of the protestors, the police and the crowd. The presence of
large number of people as well as vehicles in the area causes traffic
jams.
36. The protestors continuously play drums, music, microphones,
D etc. which disturb the peace and tranquility of the place. The noise
emanating from the said area on account of aforesaid loudspeakers, etc.
definitely generates noise which exceeds the permissible limit. Under
the Noise Pollution (Regulation and Control) Rules, 2000 and the schedule
given therewith the ambient air quality standards in respect of the noise
for a residential area is 55 db (A) leq during the day time and 45 db (A)
E leq in the night.
37. The NGT noted the adverse affect of such dharnas and
protests at Jantar Mantar Road in the following manner:
“35. But Jantar Mantar and its surrounding areas, once known
for its history, has now become a battle ground for protestors and
F agitators. The area has become a permanent place for filth and
litter indulged in by the protestors. The other civic authorities
such as NDMC and the Police authorities have also miserably
failed to maintain cleanliness in and around Jantar Mantar. They
have further neglected and failed to ensure peaceful and
G comfortable living for the residents of the locality. The petitioners
have placed on record a number of photographs [annexure P 1
(Colly)] which shows permanent structure erected for delivering
public speeches, temporary shelters, tents for living. They have
mushroomed in the locality. Vehicles are delivering food, drinks,
eatables and the protestors cooking food, washing and drying their
H clothes, etc.
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 621
INDIA & ANR. [A. K. SIKRI, J.]

36. Since long, on the stretch of Jantar Mantar road protest/dharnas A
are being regularly organized (despite there being no legal or
administrative order/permission for designating of place as a protest
ground). In recent past, the number of protest/dharnas, as well
as that of people constituting them have tremendously increased.
The pollution in the area have also increased many folds, on account
B
of noise, large gathering of people, waste, etc. The noise pollution
has been increased due to installation of traditional public address
system based on the horn loud speakers by protestors. Besides,
assembling of large crowds which is at times in thousands, also
contribute to the noise pollution. Further, the plight of the residents
is compounded by deployment of large number of police and para C
military personals to control and manage the protestors.
In the result, it not only restricts entry/exit of the residents
from their respective residences but also, at times, permits access
to the residents only by foot due to complete stoppage of vehicles.
There have been instances where the visitors of the people residing D
in the area have to park their vehicles at the other end of Jantar
Mantar road due to restrictions imposed by the police. In fact
there is absolutely no space left on the road since the protestors
occupy the same and the police personal monitoring the activity
are found to be standing/sitting outside the houses of the residents.
E
In addition to it, on the entire road there is littering and despite
of the best efforts of NDMC, it cannot be cleared because of
large crowd gathering in the area and are having food etc. and
using mobile toilets/sanitary services at the site of protest. There
are protestors who have, in the name of cow protection, been
bringing the cows along with bullock carts on the stretch of Jantar F
Mantar road which aggravates the problem, being faced by the
residents since long.
The residents who have to bear the aforesaid problem includes
their children and old aged family members. The constant loud
noises, round the year, from the protest ground seriously disturb G
the children even during their examination time. Similarly, the
elderly residents have also been diagnosed with noise age related
problem. The residents on the stretch of Jantar Mantar road are
totally at the mercy of the protestors.
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622 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 37. The processions, demonstrations and agitations by social groups,
NGOs, religious groups and political parties had become a regular
feature, so much so, that everyday dharnas, agitations, etc. are
being held on Jantar Mantar road. Consequently, the lives of the
petitioners and all other residents on Jantar Mantar road is being
persistently disturbed by the dharnas which are a few thousands
B
every year. These dharnas and protests are stretched almost on
the entire Jantar Mantar road, on both sides and even across the
width of the road. Dharnas on Jantar Mantar road are coupled
with non-stop slogans and it has developed into a place of
inhabitation for the protesters who also carry with them tents and
C temporary shelters. It is used as a place for sleeping, to take
bath, cook food, etc. by the protesters and they live there for
months together. Above all, the people sitting on dharna, carrying
on processions and agitations continuously play loud speakers,
not only during day but also till late night.
D 38. The continuous activity of the protesters, agitators and dharna/
processions for a number of years by now, the site has virtually
become hell for the residents of the locality who cannot sleep at
night, face noise pollution during the day, having difficulties in
ingress and egress to their residencies, much less to say, to take
their vehicles up to their residences. Many a times, when dharnas,
E agitations, processions, etc. are on their peak specially during
Parliament session, the residents are even prevented or with great
difficulty they are able to walk down to their residences because
the Police for the purpose of maintaining law and order puts
barricades and even close the road. Such being the situation of
F the stretch on Jantar Mantar road, great difficulties have been
created to the children/students residing in that area. The situation
is being aggravated day by day and has resulted in health problems
for the residents as many of them now have high blood pressure,
become hart patient and old age persons have now started suffering
from chronic ailments. The road starting from Jantar Mantar and
G leading to Parliament has turned into a place of totally different
nature which is being used for various purposes. The protesters
come there from various parts of the country travelling by trucks,
buses, etc., and they park their vehicles in and around the residential
buildings. In fact, the locality has completely changed where one
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 623
INDIA & ANR. [A. K. SIKRI, J.]

finds that men, women and children are bathing, washing their A
clothes under Delhi Jal Board tankers and the situation becomes
worse when the people are seen defecating in the open, on
pavements, etc. which creates a totally unhygienic situation on
the entire road.
40. It is relevant to mention here that continuous noise by non- B
stop slogans and use of loudspeakers by the protestors, for hours
together, is more than just a nuisance. It constitutes a real and
present danger to people’s health. Day and night, at home, at
work, and at play, noise can produce serious physical and
psychological stress. No one can be immune to this stress. Though
we try to adjust to noise by ignoring it, the ear, in fact, never C
closes and the body still responds-sometimes with extreme tension,
as to a strange sound in the night.”
38. The NGT thereafter discussed the ill-effects of the noise
pollution by quoting various research and field studies. It also referred
to various statutory provisions which aim to curb noise pollution and the D
judgments of Supreme Court as well as High Courts, including the
judgment in the case of Ramlila Maidan Incident v. Home Secretary,
Union of India and Others7, wherein right to proper sleep has been
considered as fundamental right, being a facet of Article 21 of the
Constitution. Applying that law to the facts of the case at hand, it came E
to conclusion that residents of Jantar Mantar Road are not living a normal
life and their difficulties were increasing by the day. Such demonstrations
with loud noise were also causing various kinds of health problems like
hearing problem, blood pressure, hypertension and other serious diseases
relating to heart etc. The NGT found that they were suffering because
of gross violation of laws, air pollution and health hazard, due to lack of F
cleanliness and non-performance of duties by the authorities of the State.
All this is endangering their lives. The environmental conditions at Jantar
Mantar Road in relation to noise pollution, cleanliness, management of
waste and public health had been grossly deteriorated. The situation
was becoming alarming, day by day. On that basis, the NGT found merit G
in the Original Application filed by the residents.
39. The NGT also noted that earlier the protests/dharnas/agitations
were allowed only at Ramlila Maidan, near Ajmeri Gate in Delhi. The
said area was the place where people used to assemble for purposes of
protest march and processions. It was the point from where the agitators H
624 SUPREME COURT REPORTS [2018] 11 S.C.R.

A were to start for their destinations like Parliament House, office/residence
of the Chief Minister, the Home Minister, etc. etc. Subsequently, the
battle ground for protestors and agitators came to be the Boat Club near
India Gate. Later, the Police shifted the place of agitation from Boat
Club to Jantar Mantar, apparently for the reason that the said place was
creating obstruction to traffic. It was the department of Police, as is also
B
mentioned in the reply, that fixed this new place for agitations, dharnas,
starting of processions, etc. upto a total number of 5000 people and in
case of more, the venue would be Ramlila Maidan. Moreover, with
passage of time, the place for agitators/protestors to assemble and start
their processions had no longer remained at Jantar Mantar but came
C down to Jantar Mantar road which, as on date, is fully occupied by
protestors, agitators, dharnas, temporary structures/make shifts,
demonstrations, slogans, display of various articles and even animals
like cows, buffalo’s, etc. It had so happened mainly because the agitators
and protestors were to ultimately move towards the Parliament House.
But strangely, neither the Police nor NDMC tried to prevent them in
D
moving away from Jantar Mantar. Resultantly, the entire Jantar Mantar
road, stretching to its total width, has been covered by the protestors.
Above all, when the agitation consisting of thousands and thousands of
people assemble on Jantar Mantar road, no one is there to check their
total number and in case of the number exceeding five thousand, to send
E them to Ramlila ground at Ajmeri Gate.
40. In the aforesaid conspectus, the NGT has given the directions
(already reproduced above) which include shifting the protestors, agitators
and the people holding dharnas to the alternative site at Ramlila Maidan,
Ajmeri Gate, Delhi.
F 41. In order to have holistic view of the issue raised in the Writ
Petition (Civil) No. 1153 of 2017 it becomes necessary to first deal with
the challenge to the aforesaid orders passed by the NGT, as the particular
result of these appeals preferred against that judgment would facilitate
the Court to find out the solution for Boat Club area which is the subject
G matter of the writ petition. Therefore, we first proceed to examine the
validity of the judgment dated 5th October, 2017, rendered by the NGT.
42. We have already captured the essence of the reasoning on
which the judgment of the NGT is based upon. The considerations
which prevailed upon the NGT to pass such an order can be stated, in
H bullet form. These are :
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 625
INDIA & ANR. [A. K. SIKRI, J.]

• Area in question where the demonstrations were being held is a A
stretch between the Ashoka Road and the Parliament Street.
• The said area is inhabited as there are residential houses. The
area is marked as “residential area even under Master Plan 2021”.
• Apart from houses of private citizens, there are residences of B
Members of Parliament and also State Guest House of Kerala,
Office of Delhi Metro Corporation as well as offices of some of
the political parties on the said road.
• Holding of protest on the Jantar Mantar road had become a
regular feature, where the protests were being held on continuous C
basis.
• Such protests are not temporary or transient. Protestors had put
up tents and other arrangements where people had been staying
for months together. Even structures had been put on the side of
D
the street, where arrangement for food, lodging etc. were being
made.
• The protestors had affixed loud speakers at various places in
the area.
• Use of these loud speakers at all times, including odd times and E
night hours, was creating noise pollution and this pollution was
getting worsened with the continuous plays of drums, music and
microphones etc. This noise pollution was exceeding the
permissible limits laid down in the relevant rules.
F
• The sanitation facility provided was grossly inadequate, it was
resulting in foul smell emanating from mobile toilet, thereby creating
unhygienic conditions in the area.
• These unhygienic conditions were compounded by the fact that
even cows were brought to the said stretch of road by the G
protestors and were kept for months together.
• On a heavy protest day, the police were completely blocking the
Jantar Mantar road by barricading, as a result, residents of the
area were forced to park, their vehicles elsewhere and make way
to their residences on foot. H
626 SUPREME COURT REPORTS [2018] 11 S.C.R.

A • It was causing extreme inconvenience to the residents and, in
particular, senior citizens and small children.
• Their had been instances of medical emergencies where police
had to plough the ambulance through the vehicles of the protestors,
the police and the crowd.
B
• The traffic jams in the area were a common phenomena. All
the aforesaid factors constituted a real and present danger to the
health of the residents and also causing serious physical and
psychological stress.
C 43. In the appeals filed by the appellants, questioning the validity
of this order, the main ground taken is that it is the fundamental right of
the citizens to hold peaceful demonstrations and protest in order to bring
out their grievances to the notice of the authorities in power so that the
concerned authorities are awakened and attend to their grievances as
D well as take remedial measures. Therefore, there could not have been a
complete ban on demonstrations in the area in question. It was submitted
that Jantar Mantar is the best suited place for holding demonstrations
because of its proximity to the power that be. It was also argued that if
the authorities had not provided appropriate sanitation facilities or it had
failed to remove the cows etc., such a failure on the part of the authorities
E could not be a ground to put a complete ban on the demonstrations.
Instead, directions could be given by the NGT to the authorities to take
appropriate measures in this behalf. It was also submitted that a recent
study undertaken by the AIIMS shows the adverse effect and health
consequences of community noise pollution is not limited to Jantar Mantar
but extends to the entire Delhi. Therefore, noise pollution could not be a
F
ground to impose such a ban. It was further argued that Ramleela
ground, where the protests are now permitted, is far away from the
Parliament. Moreover, the said area is infested by traffic congestion all
around and, therefore, would cause much more discomfort and hardships
to not only the protestors but the traffic in that area, which is also
G surrounded by hospitals, school, college, hardship places and cricket
ground.
44. Respondent nos. 1 to 7 supported the impugned order by laying
emphasis on the reasons which are given therein. It was submitted that

H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 627
INDIA & ANR. [A. K. SIKRI, J.]

the fundamental right of the protestors to hold demonstrations etc. does A
not extend to causing such discomforts and difficulties to the residents
so as to violate the fundamental right of the residents under Article 21 of
the Constitution:
45. It is further submitted that though the protestors at Jantar
Mantar road were being allowed to exercise fundamental right to protest B
by way of loudspeakers, but the said right cannot be provided by the
State to curtail the rights of the residents citizens, qua the right not to
listen. The said principle of reasonable restriction on this right is enshrined
in Article 19(2) to (6) of the Constitution of India and the burden of
proof on State to justify reasonability. This has been upheld by the Supreme
Court of India in the case of Ramlila Maidan Incident7. C

46. It is also argued that the Central Government, through MoEF
& CC, have notified Noise Pollution (Regulation and Control) Rules on
11.02.2000, under Environment (Protection) Act, 1986, wherein
difference zones such as industrial, residential, commercial and silence
zones have been categorised for the purpose of regulation and control of D
noise producing and generating sources. These rules govern the
restriction of the use of loud speaker, public address system, noise
producing system, etc. Provisions have also been made for ambient air
quality standards in respect of noise to control the noise from source.
The respondent had also mentioned about the harmful effects resulting E
from noise pollution by the various studies made by World Health
Organisation and the study undertaken by AIIMS hospital which shows
the adverse effect and health consequences of community noise pollution.
47. Aid was also taken from the following judgments.
“(i) Noise Pollution (V), in Re v. Forum Prevention of F
Environmental and Sound Pollution; (2005) 5 SCC 733
(ii) Anirudh Kumar v. Municipal Corporation of Delhi and
Others; (2015) 7 SCC 779
(iii) State of Rajasthan v. G. Chawla and Dr. Pohumal; 1959
G
Suppl (1) SCR 904
(iv) Rabin Mukherjee and Others v. State of West Bengal
and Others; AIR 1985 Cal 222

7
(2012) 5 SCC 1
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628 SUPREME COURT REPORTS [2018] 11 S.C.R.

A (v) P.A. Jacob v. The Superintendent of Police, Kottayam
and Another; AIR 1993 Kerala 1"
48. We may state at the outset that none of the parties have joined
issue insofar as law on the subject is concerned. Undoubtedly, holding
peaceful demonstrations by the citizenry in order to air its grievances
B and to ensure that these grievances are heard in the relevant quarters, is
its fundamental right. This right is specifically enshrined under Article
19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers
a vary valuable right on the citizens, namely, right of free speech.
Likewise, Article 19(1)(b) gives right to assemble peacefully and without
arms. Together, both these rights ensure that the people of this country
C have right to assemble peacefully and protest against any of the actions
or the decisions taken by the Government or other governmental
authorities which are not to the liking. Legitimate dissent is a
distinguishable feature of any democracy. Question is not as to whether
the issue raised by the protestors is right or wrong or it is justified or
D unjustified. The fundamental aspect is the right which is conferred upon
the affected people in a democracy to voice their grievances. Dissenters
may be in minority. They have a right to express their views. A particular
cause which, in the first instance, may appear to be insignificant or
irrelevant may gain momentum and acceptability when it is duly voiced
and debated. That is the reason that this Court has always protected the
E valuable right of peaceful and orderly demonstrations and protests.
49. In Babulal Parate v. State of Maharashtra8, this Court
observed:
“The right of citizens to take out processions or to hold public
F meetings flows from the right in Art. 19(1)(b) to assemble peacably
and without arms and the right to move anywhere in the territory
of India.”
50. In Kameshwar Prasad v. State of Bihar9 the Court was
mainly dealing with the question whether the right to make a
G demonstration is protected under Article 19(1)(a) and (b) and whether a
government servant is entitled to this right. This Court held :
“A demonstration might take the form of an assembly and even
then the intention is to convey to the person or authority to whom
8
1961 (3) SCR 423
9
H (1962) Supp 3 SCR 369
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 629
INDIA & ANR. [A. K. SIKRI, J.]

the communication is intended the feelings of the group which A
assembles. It necessarily follows that there are forms of
demonstration which would fall within the freedoms guaranteed
by Art. 19(1)(a) and 19(1)(b). It is needless to add that from the
very nature of things a demonstration may take various forms; it
may be noisy and disorderly, for instance stone-throwing by a
B
crowd may be cited as an example of a violent and disorderly
demonstration and this would not obviously be within Art. 19(1)(a)
or (b). It can equally be peaceful and orderly such as happens
when the members of the group merely wear some badge drawing
attention to their grievance.”
51. The Supreme Court has also gone beyond upholding the right C
to protest as a fundamental right and has held that the State must aid the
right to assembly of the citizens. In the Constitution Bench Judgment,
Himat Lal K. Shah v. Commissioner of Police, Ahmedabad10 , while
dealing with the challenge to the Rules framed under the Bombay Police
Act regulating public meetings on streets, held that the Government has D
power to regulate which includes prohibition of public meetings on streets
or highways to avoid nuisance or disruption to traffic and thus, it can
provide a public meeting on roads, but it does not mean that the
government can close all the streets or open areas for public meetings,
thus denying the fundamental right which flows from Article 19(1)(a)
and (b). The Court held: E

“33. This is true but nevertheless the State cannot by law abridge
or take away the right of assembly by prohibiting assembly on
every public street or public place. The State can only make
regulations in aid of the right of assembly of each citizen and can
only impose reasonable restrictions in the interest of public order. F

xxx xxx xxx
70. Public meeting in open spaces and public streets forms part
of the tradition of our national life. In the pre-Independence days
such meetings have been held in open space and public streets G
and the people have come to regard it as a part of their privileges
and immunities. The State and the local authority have a virtual
monopoly of every open space at which an outdoor meeting can
be held. If, therefore, the State or Municipality can constitutionally
10
(1973) 1 SCC 227
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630 SUPREME COURT REPORTS [2018] 11 S.C.R.

A close both its streets and its parks entirely to public meetings, the
practical result would be that it would be impossible to hold any
open-air meetings in any large city. The real problem is that of
reconciling the city’s function of providing for the exigencies of
traffic in its streets and for the recreation of the public in its parks,
with its other obligations, of providing adequate places for public
B
discussion in order to safeguard the guaranteed right of public
assembly. The assumption made by Justice Holmes is that a city
owns its parks and highways in the same sense and with the same
rights as a private owner owns his property with the right to exclude
or admit anyone he pleases. That may not accord with the concept
C of dedication of public streets and parks. The parks are held for
public and the public streets are also held for the public. It is
doubtless true that the State or local authority can regulate its
property in order to serve its public purposes. Streets and public
parks exist primarily for other purposes and the social interest
promoted by untrammelled exercise of freedom of utterance and
D
assembly in public street must yield to social interest which
prohibition and regulation of speech are designed to protect. But
there is a constitutional difference between reasonable regulation
and arbitrary exclusion.”
52. While adjudicating with respect to the validity of police action
E against protestors, this Court again reiterated that right to protest was a
fundamental right guaranteed to the citizens under Article 19. In the
case of Ramlila Maidan Incident (supra), the Court observed that
the right to assembly and peaceful agitations were basic features of a
democratic system and the Government should encourage exercise of
F these rights:
“245. Freedom of speech, right to assemble and demonstrate by
holding dharnas and peaceful agitations are 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
G 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 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
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 631
INDIA & ANR. [A. K. SIKRI, J.]

frustrate exercise of such rights by exercising its executive or A
legislative powers 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 tranquillity, as it may disturb the
social order. This delegated power vested in the State has to be
B
exercised with great caution and free from arbitrariness. It must
serve the ends of the constitutional rights rather than to subvert
them.”
53. Further, Anita Thakur7, the Court recognised that the right to
peaceful protest was a fundamental right under Article 19(1), (b) and
(c) of the Constitution, subject to reasonable restrictions. It was finally C
held that in that while the protestors turned violent first, the police used
excessive force:
“12. We can appreciate that holding peaceful demonstration in
order to air their grievances and to see that their voice is heard in
the relevant quarters is the right of the people. Such a right can be D
traced to the fundamental freedom that is guaranteed under Articles
19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a)
confers freedom of speech to the citizens of this country and,
thus, this provision ensures that the petitioners could raise slogan,
albeit in a peaceful and orderly manner, without using offensive E
language. Article 19(1)(b) confers the right to assemble and, thus,
guarantees that all citizens have the right to assemble peacefully
and without arms. Right to move freely given under Article 19(1)(d),
again, ensures that the petitioners could take out peaceful march.
The “right to assemble” is beautifully captured in an eloquent
statement that “an unarmed, peaceful protest procession in F
the land of “salt satyagraha”, fast-unto-death and “do or
die” is no jural anathema”. It hardly needs elaboration that a
distinguishing feature of any democracy is the space offered for
legitimate dissent. One cherished and valuable aspect of political
life in India is a tradition to express grievances through direct G
action or peaceful protest. Organised, non-violent protest marches
were a key weapon in the struggle for Independence, and the
right to peaceful protest is now recognised as a fundamental right
in the Constitution.

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632 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 13. Notwithstanding above, it is also to be borne in mind that the
aforesaid rights are subject to reasonable restrictions in the interest
of the sovereignty and integrity of India, as well as public order. It
is for this reason, the State authorities many a times designate
particular areas and routes, dedicating them for the purpose of
holding public meetings.
B
15. Thus, while on the one hand, citizens are guaranteed
fundamental right of speech, right to assemble for the purpose of
carrying peaceful protest processions and right of free movement,
on the other hand, reasonable restrictions on such right can be put
by law. Provisions of IPC and CrPC, discussed above, are in the
C form of statutory provisions giving powers to the State to ensure
that such public assemblies, protests, dharnas or marches are
peaceful and they do not become “unlawful”. At the same time,
while exercising such powers, the authorities are supposed to act
within the limits of law and cannot indulge into excesses……….”
D
54. The right to protest is, thus, recognised as a fundamental right
under the Constitution. This right is crucial in a democracy which rests
on participation of an informed citizenry in governance. This right is also
crucial since it strengthens representative democracy by enabling direct
participation in public affairs where individuals and groups are able to
E express dissent and grievances, expose the flaws in governance and
demand accountability from State authorities as well a powerful entities.
This right is crucial in a vibrant democracy like India but more so in the
Indian context to aid in the assertion of the rights of the marginalised and
poorly represented minorities.
F 55. At the same time, aforesaid rights under Article 19(1)(a) and
19(1)(b) of the Constitution are not untrammeled and unlimited in their
scope. Article 19(2) to (6) make a specific provision for imposing
reasonable restrictions on the rights conferring restrictions on the exercise
of such rights. Articles 19(2) and (3), in this behalf read as under:

G “(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the
operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the
interests of the sovereignty and integrity of India, the security of

H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 633
INDIA & ANR. [A. K. SIKRI, J.]

the State, friendly relations with foreign States, public order, A
decency or morality or in relation to contempt of court, defamation
or incitement to an offence.
(3) Nothing in sub clause (b) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of the B
sovereignty and integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by the said sub
clause”
56. It can be deciphered from the aforesaid provisions that exercise
of right to speech conferred in clause (a) and right to assemble peacably C
and without arms in clause (b) is made subject to reasonable restrictions
which can be imposed, inter alia, in the interests of sovereignty and
integrity of India or public order. This legal position is also accepted by
all the parties.
57. In this hue, we have to examine as to whether total ban of D
demonstrations etc. at Jantar Mantar road amounts to violation of the
rights of the protestors of the Constitution or this would amount to a
reasonable restriction in the interest of ‘public order’. There would be
also an incidental and interrelated issue, namely, whether the manner in
which the demonstrations etc. are held at Jantar Mantar, they violate the
fundamental right of the residents guaranteed under Article 21 of the E
Constitution. If the answer is in the affirmative, it would raise another
issue, namely, balancing of the two rights. The right of the protestors
under Article 19(1)(a) and 19(1)b) of the Constitution and the rights of
the residents under Article 21 of the Constitution, as both the rights are
fundamental rights. F
58. In the aforesaid context, it would be pertinent to point out that
there may be situations where conflict may arise between two
fundamental rights. Situation can be conflict on inter fundamental rights,
intra fundamental rights and, in certain peculiar circumstances, in respect
of some person one fundamental right enjoyed by him may come in G
conflict with the other fundamental right guaranteed to him. In all such
situations, the Court has to examine as to where lies the larger public
interest while balancing the two conflicting rights. It is the paramount
collective interest which would ultimately prevail.

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634 SUPREME COURT REPORTS [2018] 11 S.C.R.

A 59. We may reproduce the following discussion from the judgment
of this Court in Subramanian Swamy v. Union of India, Ministry of
Law & Ors.11:
“Balancing of fundamental rights
136. To appreciate what we have posed hereinabove, it is
B necessary to dwell upon balancing the fundamental rights. It has
been argued by the learned counsel for the petitioners that the
right conferred under Article 19(1)(a) has to be kept at a different
pedestal than the individual reputation which has been recognised
as an aspect of Article 21 of the Constitution. In fact the submission
C is that right to freedom of speech and expression which includes
freedom of press should be given higher status and the individual’s
right to have his/her reputation should yield to the said right. In
this regard a passage from Sakal Papers (P) Ltd. has been
commended to us. It says: (AIR pp. 313-14, para 36)
D “36. … Freedom of speech can be restricted only in the
interests of the security of the State, friendly relations with
foreign State, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence. It
cannot, like the freedom to carry on business, be curtailed in
the interest of the general public. If a law directly affecting it
E is challenged, it is no answer that the restrictions enacted by it
are justifiable under clauses (3) to (6). For, the scheme of Article
19 is to enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be subjected
and the objects for securing which this could be done. A citizen
F is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to
another. That is the plain meaning of this clause. It follows
from this that the State cannot make a law which directly
restricts one freedom even for securing the better enjoyment
of another freedom.”
G
(emphasis supplied)
137. Having bestowed our anxious consideration on the said
passage, we are disposed to think that the above passage is of no
assistance to the petitioners, for the issue herein is sustenance
11
H (2016) 7 SCC 221
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 635
INDIA & ANR. [A. K. SIKRI, J.]

and balancing of the separate rights, one under Article 19(1)(a) A
and the other, under Article 21. Hence, the concept of equipoise
and counterweighing fundamental rights of one with other person.
It is not a case of mere better enjoyment of another freedom. In
Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj v. State of Gujarat, it has been observed that a particular
B
fundamental right cannot exist in isolation in a watertight
compartment. One fundamental right of a person may have to
coexist in harmony with the exercise of another fundamental right
by others and also with reasonable and valid exercise of power
by the State in the light of the directive principles in the interests
of social welfare as a whole. The Court’s duty is to strike a balance C
between competing claims of different interests. In DTC v.
Mazdoor Congress the Court has ruled that articles relating to
fundamental rights are all parts of an integrated scheme in the
Constitution and their waters must mix to constitute that grand
flow of unimpeded and impartial justice; social, economic and
D
political, and of equality of status and opportunity which imply
absence of unreasonable or unfair discrimination between
individuals or groups or classes. In St. Stephen’s College v.
University of Delhi this Court while emphasising the need for
balancing the fundamental rights observed that: (SCC p. 612, para
96) E
“96. … It is necessary to mediate between Article 29(2) and
Article 30(1), between letter and spirit of these articles, between
traditions of the past and the convenience of the present, between
society’s need for stability and its need for change.”
60. In Asha Ranjan v. State of Bihar and Others12, this test of F
larger public interest to balance two rights has been explained in the
following manner:
“57. The aforesaid decision is an authority for the proposition that
there can be a conflict between two individuals qua their right
under Article 21 of the Constitution and in such a situation, to G
weigh the balance the test that is required to be applied is the test
of larger public interest and further that would, in certain
circumstances, advance public morality of the day. To put it
differently, the “greater community interest” or “interest of the
12
(2017) 4 SCC 397 H
636 SUPREME COURT REPORTS [2018] 11 S.C.R.

A collective or social order” would be the principle to recognise and
accept the right of one which has to be protected.
58. In this context, reference to the pronouncement in Rev.
Stainislaus v. State of M.P. would be instructive. In the said case,
the Constitution Bench was dealing with two sets of appeals, one
B arising from Madhya Pradesh that related to Madhya Pradesh
Dharma Swatantraya Adhiniyam, 1968 and the other pertained to
the Orissa Freedom of Religion Act, 1967. The two Acts insofar
as they were concerned with prohibition of forcible conversion
and punishment therefor, were similar. The larger Bench stated
the facts from Madhya Pradesh case which eventually travelled
C to the High Court. The High Court ruled that that there was no
justification for the argument that Sections 3, 4 and 5 were violative
of Article 25(1) of the Constitution. The High Court went on to
hold that those sections “establish the equality of religious freedom
for all citizens by prohibiting conversion by objectionable activities
D such as conversion by force, fraud and by allurement”. The Orissa
Act was declared to be ultra vires the Constitution by the High
Court. To understand the controversy, the Court posed the
following questions: (Rev. Stainislaus case, SCC p. 681, para 14)
“14. … (1) whether the two Acts were violative of the
E fundamental right guaranteed under Article 25(1) of the
Constitution, and (2) whether the State Legislatures were
competent to enact them?”
59. It was contended before this Court that the right to propagate
one’s religion means the right to convert a person to one’s own
F religion and such a right is guaranteed by Article 25(1) of the
Constitution. The larger Bench dealing with the said contention
held: (Rev. Stainislaus case, SCC p. 682, para 20)
“20. We have no doubt that it is in this sense that the word
“propagate” has been used in Article 25(1), for what the article
G grants is not the right to convert another person to one’s own
religion, but to transmit or spread one’s religion by an exposition
of its tenets. It has to be remembered that Article 25(1)
guarantees “freedom of conscience” to every citizen, and not
merely to the followers of one particular religion, and that, in
turn postulates that there is no fundamental right to convert
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MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 637
INDIA & ANR. [A. K. SIKRI, J.]

another person to one’s own religion because if a person A
purposely undertakes the conversion of another person to his
religion, as distinguished from his effort to transmit or spread
the tenets of his religion, that would impinge on the “freedom
of conscience” guaranteed to all the citizens of the country
alike.”
B
And again: (SCC p. 682, para 21)
“21. … It has to be appreciated that the freedom of religion
enshrined in the article is not guaranteed in respect of one
religion only, but covers all religions alike, and it can be properly
enjoyed by a person if he exercises his right in a manner C
commensurate with the like freedom of persons following the
other religions. What is freedom for one, is freedom for the
other, in equal measure, and there can therefore be no such
thing as a fundamental right to convert any person to one’s
own religion.”
D
60. The aforesaid judgment in Rev. Stainislaus case clearly lays
down, though in a different context, that what is freedom for one
is also the freedom for the other in equal measure. The perception
is explicated when the Court has said that it has to be remembered
that Article 25(1) guarantees freedom of conscience to other
citizens and not merely to followers of particular religion and there E
is no fundamental right to convert another person. The right is
guaranteed to all citizens. The right to propagate or spread one’s
religion by an exposition of its tenets does not mean one’s religion
to convert another person as it affects the fundamental right of
the other. We have referred to this authority as it has, in a way, F
dwelt upon the “intra-conflict of a fundamental right”.
61. Be it stated, circumstances may emerge that may necessitate
for balancing between intra-fundamental rights. It has been
distinctly understood that the test that has to be applied while
balancing the two fundamental rights or inter fundamental rights, G
the principles applied may be different than the principle to be
applied in intra-conflict between the same fundamental right. To
elaborate, as in this case, the accused has a fundamental right to
have a fair trial under Article 21 of the Constitution. Similarly, the
victims who are directly affected and also form a part of the
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638 SUPREME COURT REPORTS [2018] 11 S.C.R.

A constituent of the collective, have a fundamental right for a fair
trial. Thus, there can be two individuals both having legitimacy to
claim or assert the right. The factum of legitimacy is a primary
consideration. It has to be remembered that no fundamental right
is absolute and it can have limitations in certain circumstances.
Thus, permissible limitations are imposed by the State. The said
B
limitations are to be within the bounds of law. However, when
there is intra-conflict of the right conferred under the same article,
like fair trial in this case, the test that is required to be applied, we
are disposed to think, it would be “paramount collective interest”
or “sustenance of public confidence in the justice dispensation
C system”. An example can be cited. A group of persons in the
name of “class honour”, as has been stated in Vikas Yadav v.
State of U.P., cannot curtail or throttle the choice of a woman. It
is because choice of woman in choosing her partner in life is a
legitimate constitutional right. It is founded on individual choice
that is recognised in the Constitution under Article 19, and such a
D
right is not expected to succumb to the concept of “class honour”
or “group thinking”. It is because the sense of class honour has
no legitimacy even if it is practised by the collective under some
kind of a notion. Therefore, if the collective interest or the public
interest that serves the public cause and further has the legitimacy
E to claim or assert a fundamental right, then only it can put forth
that their right should be protected. There can be no denial of the
fact that the rights of the victims for a fair trial is an inseparable
aspect of Article 21 of the Constitution and when they assert that
right by themselves as well as the part of the collective, the
conception of public interest gets galvanised. The accentuated
F
public interest in such circumstances has to be given primacy, for
it furthers and promotes “Rule of Law”. It may be clarified at
once that the test of primacy which is based on legitimacy and the
public interest has to be adjudged on the facts of each case and
cannot be stated in abstract terms. It will require studied scanning
G of facts, the competing interests and the ultimate perception of
the balancing that would subserve the larger public interest and
serve the majesty of rule of law. In this regard, we are reminded
of an ancient saying:
“Yadapi siddham, loka viruddham
H Na adaraniyam, na acharaniyam”
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 639
INDIA & ANR. [A. K. SIKRI, J.]

The aforesaid saying lays stress on public interest and its A
significance and primacy over certain individual interest. It may
not thus have general application, but the purpose of referring to
the same is that on certain occasions it can be treated to be
appropriate.
62. There may be a perception that if principle of primacy is to be B
followed, then the right of one gets totally extinguished. It has to
be borne in mind that total extinction is not balancing. When
balancing act is done, the right to fair trial is not totally crippled,
but it is curtailed to some extent by which the accused gets the
right of fair trial and simultaneously, the victims feel that the fair
trial is conducted and the court feels assured that there is a fair C
trial in respect of such cases. That apart, the faith of the collective
is reposed in the criminal justice dispensation system and remains
anchored.”
61. Undoubtedly, right of people to hold peaceful protests and
demonstrations etc. is a fundamental right guaranteed under Articles D
19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether
disturbances etc. caused by it to the residents, as mentioned in detail by
the NGT, is a larger public interest which outweighs the rights of protestors
to hold demonstrations at Jantar Mantar road and, therefore, amounts to
reasonable restriction in curbing such demonstrations. Here, we agree E
with the detailed reasoning given by the NGT that holding of
demonstrations in the way it has been happening is causing serious
discomfort and harassment to the residents. At the same time, it is also
to be kept in mind that for quite some time Jantar Mantar has been
chosen as a place for holding demonstrations and was earmarked by the
authorities as well. Going by the dicta in Asha Ranjan, principle of F
primacy cannot be given to one right whereby the right of the other gets
totally extinguished. Total extinction is not balancing. Balancing would
mean curtailing one right of one class to some extent so that the right of
the other class is also protected.
62. We feel that the pathetic conditions which were caused as a G
result of the processions, demonstrations and agitations etc. at the Jantar
Mantar were primarily because of the reason that authorities did not
take necessary measures to regulate the same. Had adequate and
sufficient steps were taken by the authorities to ensure that such dharnas
and demonstrations are held within their bounds, it would have balanced H
640 SUPREME COURT REPORTS [2018] 11 S.C.R.

A the rights of protestors as well as the residents. For example, the dharnas
and protests were allowed to be stretched almost on the entire Jantar
Mantar road, on both sides, and even across the width of the road.
Instead, a particular area could have been earmarked for this purpose,
sufficiently away from the houses etc. so that there is no unnecessary
blockage of roads and pathways. Likewise, the demonstrators were
B
allowed to go on with non-stop slogans, even at odd hours, at night, and
that too with the use of loudspeakers etc. The authorities could have
ensured that such slogans are within the parameters of noise pollution
norms and there are no shoutings or slogans at night hours or early
morning hours. Again, these dharnas, agitations and processions could
C be prohibited on certain occasions, for example, whenever some foreign
dignitaries visit and pass through the said area or other such sensitive
occasions. The authorities could also ensure that the protestors do not
bring their trucks/buses etc. and park those vehicles in and around the
residential buildings; the protestors are not allowed to pitch up their tents
and stay for days together; they are not allowed to bathe or wash their
D
clothes using Delhi Jal Board tankers or defecate in the open, on
pavements; and do not create any unhygienic situations. The authorities
could also examine, while allowing such demonstration, as to the number
of protestors who are likely to participate and could refuse permission to
hold any such demonstration etc. when the number is going to be
E abnormally large which, if allowed, would per se create hardships of
various kinds to the residents. These are some of the examples given by
us. The underlying message is that certain categories of peaceful protests
and demonstrations, in a guarded and regulated manner, could be allowed
so as to enable the protestors to exercise their right and, at the same
time, ensuring that no inconvenience of any kind is caused to the residents.
F
63. Before the NGT, the authorities took the position that such
demonstrations are to be allowed as the area was earmarked for such
purposes. The residents, on the other hand, in the petition filed by them,
highlighted the infringement of their rights which were caused by these
demonstrations. In this kind of adversarial approach adopted by the parties
G before the NGT, the NGT went by the ground realities and the pathetic
situation faced by the residents because of such demonstrations. Though
this analysis of the NGT is without blemish, we, however, feel that the
solution was not to ban the demonstrations altogether. Instead, the NGT
would have directed the authorities to adopt such measures (some of
H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 641
INDIA & ANR. [A. K. SIKRI, J.]

which are indicated by us above) so that there is a balancing of the A
rights of both the sections of the society.
64. At this juncture, while discussing the aspect of balancing of
the two rights, we have to keep in mind certain other relevant factors as
well. In the first instance, what needs to be noted is that a portion of
Ramlila Maidan has been earmarked for such demonstrations etc. B
Therefore, that space is already available. One of the argument raised
by the petitioner in the writ petition and appellants in the appeal is that
Ramlila Maidan is far away from that portion of New Delhi area where
there is a concentration of ‘power’ and, therefore, holding protests and
demonstration at a far place in Ramlila Maidan would have no impact or
very little effect. It was stressed that the purpose of holding such C
demonstrations and raising slogans is that they reach concerned persons
for whom these are meant. This may be correct. However, it is also to
be borne in mind that we are living in an era of technology where a
concerned voice by a group of persons can reach the right quarters by
numerous means. Electronic and print media play a pivotal role. Then, D
we have social media and various applications like ‘WatsApp’, ‘Twitter’,
‘Instagram’ etc. which take no time in spreading such events. Secondly,
though holding protests and demonstrations is an accepted right, at the
same time, nobody can claim that I have a right to hold demonstration at
one particular area only. While regulating such demonstrations in public
interest, particular areas can be earmarked. On the other hand, it is also E
to be acknowledged that Ramlila Maidan may not be sufficient to cater
to this requirement. Again, this place in old Delhi is a part of very
congested area and it has its own limitations when it comes to using this
area for such purposes. Therefore, some other area is required. Since,
Jantar Mantar was the area chosen by the authorities and has been in F
use for quite sometime, balancing can be done by permitting a limited
part of this area for holding peaceful public meetings, processions etc.,
at least to small groups and, in such a manner, that there is no disturbance
or inconvenience of any nature whatsoever, insofar as residents are
concerned.
G
65. Having regard to the aforesaid discussion, we direct the
Commissioner of Police, New Delhi in consultation with other concerned
agencies, to devise a proper mechanism for limited use of the area for
such purposes but to ensure that demonstrations, etc. are regulated in
such a manner that these do not cause any disturbance to the residents
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642 SUPREME COURT REPORTS [2018] 11 S.C.R.

A of Jantar Mantar road or the offices situated there. Detailed guidelines
in this respect can be formulated. We may also clarify that a provision
can be made for taking requisite prior permission from the Police
Commissioner (or his delegated authority) for holding such demonstration
by a particular group and while examining such proposals the parameters
can be laid down which shall be looked into in order to decide whether
B
the permission is to be granted or not. Two months’ time is given to the
Commissioner of Police, New Delhi for formulating such guidelines.
66. The petitioner in Writ Petition (Civil) No. 1153 of 2017 wants
boat club area to be available for demonstrations, etc. The petitioner
has successfully demonstrated that it is their fundamental right under
C Articles 19(1)(a) and 19(1)(b) of the Constitution. At the same time, it is
also not denied that there can be reasonable restrictions on exercise of
this right in larger public interest. The respondents have also highlighted
in equal measure the sensitivity of this area because of its proximity to
the Parliament House, North and South Blocks and other Central
D Government offices, including frequent visits of Heads of foreign States
and other such factors. The respondents are also justified in pointing out
that alarmingly large number of requests for holding demonstrations at
this place are made. Further, intelligence reports reveal that some of
such demonstrations, if allowed, may cause serious law and order
situation. The respondents are also correct to the extent that this Court
E has not adopted ‘clear and present danger test’, as applied by the US
Courts, and instead it is the ‘apprehension of breach of peace test’ which
is to be used in order to decide as to whether a particular demonstration/
dharna is to be allowed or not. When orders passed under Section 144
of the Cr.P.C. are examined in this context, one may not find foul with
F such orders. These orders do not, on their face, appear to be infected
with any illegality as they prohibit public meetings, assembly of five or
more persons, processions, demonstrations, dharnas, etc. ‘without
written permission’. Further, such orders are passed on the basis of
intelligence reports which indicate that ‘unrestricted holding of public
meetings’, processions, demonstrations, etc. in the area are likely to cause
G obstruction to traffic, danger to human safety and disturbance of public
tranquility.
67. The tenor or these orders and the specific language used therein
bring about the following two features:

H
MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF 643
INDIA & ANR. [A. K. SIKRI, J.]

(a) there should not be ‘unrestricted’ holding of public meetings, A
processions, etc.; and
(b) as a corollary, the order mentions that such public meetings,
processions, demonstrations, etc. would not be allowed ‘without
written permission’.
68. The reading of these orders, thus, would indicate that there is B
no absolute prohibition from holding public meetings, processions,
demonstrations, etc. Such activities are to be restricted in larger public
interest and, therefore, before any group of persons or person wants to
carry out any such processions and dharnas, it has to take prior written
permission. This clearly implies that whenever such a request is made, C
the authority is to examine the same and take a decision as to whether it
should allow the proposed demonstration, public meeting etc. or not,
keeping in view its likely effect, namely, whether it would cause any
obstruction to traffic or danger to human safety or disturbance to public
tranquility etc. If requests made are considered and then allowed or
rejected keeping in view the aforesaid considerations, there cannot be D
any quarrel as to the validity of such an order made under Section 144 of
the Cr.P.C. That is, however, not the ground reality.
69. No doubt, an order passed under Section 144 of the Cr.P.C.
remains valid for a period of sixty days which is the limit prescribed in
that provision. However, just before the expiry of one order, another E
identical order is passed. Such repeated orders, in continuum, have
created a situation of perpetuity. It is argued on behalf of the respondents
that as there is no change in the situation, which remains the same insofar
as sensitivity of this area and specific/peculiar conditions prevailing, such
orders in repetitive form are necessitated. Even if we accept this position F
and proceed on that basis, this would only mean continuous regulation of
the proposed public meetings, processions, demonstrations, etc. by not
allowing the same in ‘unrestricted’ manner. However, in reality no such
activities are allowed at all and, therefore, the situation which is created
amounts to ‘banning’ these public meetings, demonstrations, dharnas,
etc. altogether rather than ‘regulating’ the same. G
70. In the aforesaid conspectus, here also the Commissioner of
Police, New Delhi and other official respondents can frame proper
guidelines for regulating such protests, demonstrations, etc. As noted

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644 SUPREME COURT REPORTS [2018] 11 S.C.R.

A above, the orders issued under Section 144 prohibit certain activities in
the nature of demonstrations etc. ‘without permission’, meaning thereby
permission can be granted in certain cases. There can, therefore, be
proper guidelines laying down the parameters under which permission
can be granted in the Boat Club area. It can be a very restrictive and
limited use, because of the sensitivities pointed out by the respondents
B
and also keeping in mind that Ramlila Maidan is available and Jantar
Mantar Road in a regulated manner shall be available as well, in a couple
of months. Thus, the proposed guidelines may include the provisions for
regulating the numbers of persons intending to participate in such
demonstrations, prescribing the minimum distance from the Parliament
C House, North and South Blocks, Supreme Court, residences of dignitaries
etc. within which no such demonstrations would be allowed; imposing
restrictions on certain routes where normally the Prime Minister, Central
Ministers, Judges etc pass through; not permitting any demonstrations
when foreign dignitaries are visiting a particular place or pass through
the particular route; not allowing firearms, lathis, spears, swords, etc. to
D
be carried by demonstrators; not allowing them to bring animals or pitch
tents or stay overnight; prescribing time limits for such demonstrations;
and placing restrictions on such demonstrations, etc. during peak traffic
hours. To begin with, authorities can permit those processions and
demonstrations which are innocuous by their very nature. Illustratively,
E school children carrying out procession to advance some social cause or
candle march by peace loving group of persons against a social evil or
tragic incident. These are some of the examples given by us to signify
that such demonstrations can be effectively regulated by adopting various
measures instead of banning them altogether by rejecting every request
for such demonstrations. We, therefore, feel that in respect of this area
F
as well the authorities can formulate proper and requisite guidelines.
We direct the Commissioner of Police, New Delhi, to undertake this
exercise, in consultation with other authorities, within two months from
today.
71. Writ petitions and appeals stand disposed of in the aforesaid
G terms.

Nidhi Jain Matters disposed of.

H