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