Supreme Court Upholds Right to Protest but Regulates Demonstrations: Mazdoor Kisan Shakti Sangathan vs. Union of India (23 July 2018)

Date of the Judgment: 23 July 2018

Citation: (2018) INSC 642

Judges: A.K. Sikri, J., Ashok Bhushan, J.

Can the government impose blanket bans on protests, or must it find a balance between the right to assemble and the need for public order? The Supreme Court of India recently addressed this critical question in a case concerning the frequent use of Section 144 of the Code of Criminal Procedure (Cr.P.C.) to prohibit public gatherings in Delhi. The court also considered the validity of a National Green Tribunal (NGT) order banning protests at Jantar Mantar, a traditional site for demonstrations. This judgment clarifies the extent of the right to protest and the limits of government power in regulating public assemblies. The bench comprised Justices A.K. Sikri and Ashok Bhushan, who delivered a unanimous judgment.

Case Background

The Mazdoor Kisan Shakti Sangathan (MKSS), a grassroots organization, filed a Public Interest Litigation (PIL) challenging the Delhi Police’s repeated use of Section 144 of the Cr.P.C. to ban public meetings and protests in Central Delhi. The MKSS argued that these orders, which were renewed every 60 days, effectively turned the area into a prohibited zone, violating the fundamental right to peaceful assembly under Article 19(1)(b) of the Constitution. Simultaneously, appeals were filed against an NGT order that banned all protests at Jantar Mantar, a traditional protest site, due to noise and pollution concerns raised by local residents. The appellants in these cases argued that the NGT order violated their fundamental right to protest.

The core issue was whether the government could impose blanket bans on protests, or whether it must find a balance between the right to assemble and the need for public order. The case also highlighted the conflict between the rights of protestors and the rights of residents affected by protests.

Timeline

The following table outlines the key dates and events in this case:

Course of Proceedings

The National Green Tribunal (NGT) heard the Original Application filed by residents of Jantar Mantar Road, who complained about the noise and pollution caused by continuous protests. The NGT, on 5th October 2017, ordered a complete ban on all protests at Jantar Mantar and directed the authorities to shift protestors to Ramlila Maidan. This order was challenged in the Supreme Court by various groups, including farmers and ex-servicemen, who argued that the ban violated their fundamental right to protest. The Supreme Court clubbed these appeals with the PIL filed by MKSS, as they all involved common issues concerning the right to protest and the limits of government regulation.

Legal Framework

The Supreme Court considered the following legal provisions:

• Article 19(1)(a) of the Constitution of India: Guarantees the right to freedom of speech and expression.
• Article 19(1)(b) of the Constitution of India: Guarantees the right to assemble peacefully and without arms.
• Article 19(2) and (3) of the Constitution of India: Allows for reasonable restrictions on the rights under Article 19(1) in the interest of public order, sovereignty, and integrity of India.
• Section 144 of the Code of Criminal Procedure (Cr.P.C.): Empowers magistrates to issue orders to prevent disturbances, obstructions, and annoyances, and to maintain public tranquility. According to sub-section (4) of Section 144 Cr.P.C., an order can be issued for a maximum period of two months.
• Delhi Police Act, 1978: Provides powers to the police to regulate public order.
• Noise Pollution (Regulation and Control) Rules, 2000: Sets standards for ambient air quality in respect of noise.

The Court emphasized that while the Constitution guarantees the right to protest, these rights are not absolute and can be subject to reasonable restrictions in the interest of public order and the rights of others. The Court also noted that Section 144 of the Cr.P.C. is intended for use in emergent situations and not for imposing blanket bans on public assemblies.

Arguments

Petitioner (Mazdoor Kisan Shakti Sangathan):

• The repeated imposition of orders under Section 144 of the Cr.P.C. is an arbitrary exercise of power that infringes on the fundamental right to peaceful assembly guaranteed under Article 19(1)(b) of the Constitution.
• These orders effectively declare the entire Central Delhi area as a prohibited zone for public meetings, dharnas, and peaceful protests.
• The right to protest and assemble peacefully is a distinguishing feature of any democracy, and it encompasses the right to express grievances through direct action or peaceful protest.
• Section 144 of the Cr.P.C. should only be used in emergent situations when there is a need for immediate prevention or speedy remedy, not for imposing continuous bans.
• The Delhi Police has been issuing such prohibitory orders under Section 144 of the Cr.P.C. for several years, issuing fresh orders as soon as the previous order expires.
• Jantar Mantar has been a site for peaceful protests since 1993 and is an easily managed and contained space. Shifting the protest site to Ramlila Maidan distances protesters from the government and dilutes the impact of the protest.
• The cost of using Ramlila Maidan for protests is Rs. 50,000/- per day, making it practically impossible for the common citizen.
• The impugned orders are based on the assumption that whenever there is a demonstration or dharna in New Delhi area, it would lead to violence, which is an uncalled for assumption.

Respondents (Union of India and Delhi Police):

• The area in question is a sensitive area, being the capital city and the location of the Parliament, North and South Blocks, and other Central Government offices.
• The orders passed under Section 144 of the Cr.P.C. are justified due to the potential for obstruction to traffic, danger to human safety, and disturbance of public tranquility.
• Section 144 of the Cr.P.C. permits anticipatory action, and mere apprehension of breach of peace is sufficient to prohibit any demonstration or dharna.
• The orders do not impose a complete ban on public meetings, but require prior written permission, which is considered on a case-to-case basis.
• There have been instances where protests have turned violent, leading to the commission of crimes.
• The area in Ramlila Maidan is specifically earmarked for protests, providing an alternative venue for those who wish to exercise their right to protest.
• The “clear and present danger” test applied by US Courts is not applicable in the Indian context, and the correct test is that of “apprehension of breach of peace.”
• Delhi being the capital of the country, there was a tendency on the part of organizations located throughout the country to come to Delhi and hold public meetings, processions, demonstrations, etc.
• 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.

Respondents (Residents of Jantar Mantar Road):

• The protests at Jantar Mantar have caused significant noise and air pollution, disrupting the lives of residents.
• The protests have led to unhygienic conditions, including littering and inadequate sanitation facilities.
• The right to protest cannot infringe on the right of residents to live in a peaceful and healthy environment, which is a part of their right to life under Article 21 of the Constitution.
• The continuous noise from loudspeakers and protests disrupts the peace and tranquility of the area and exceeds permissible limits.
• The protests restrict the entry/exit of residents from their residences, and at times, residents can only access their homes on foot.

Innovativeness of the argument: The petitioners innovatively argued that the repeated use of Section 144 Cr.P.C. was a violation of the spirit of the law, which is meant for emergencies, not for continuous bans. They also highlighted the importance of protest sites being visible to the government, which Ramlila Maidan is not. The respondents, on the other hand, emphasized the sensitive nature of the area and the potential for violence, justifying the restrictions.

Submissions by Parties

The following table summarizes the main submissions by each party:

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the repeated imposition of orders under Section 144 of the Cr.P.C. is a valid exercise of power?
2. Whether the complete ban on protests at Jantar Mantar by the NGT is a violation of the fundamental right to protest?
3. How to balance the right to protest with the need for public order and the rights of residents?

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Supreme Court relied on several precedents to support its reasoning. The Court cited Babulal Parate v. State of Maharashtra [CITATION] to emphasize that the test for restrictions on fundamental rights is not “clear and present danger” but “apprehension of breach of peace.” However, the Court also cited Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta [CITATION] to highlight that repetitive prohibitory orders under Section 144 are not legitimate. The Court also relied on Himat Lal K. Shah v. Commissioner of Police, Ahmedabad [CITATION] to stress that while the government can regulate public meetings, it cannot prohibit them entirely. The Court used Ramlila Maidan Incident v. Home Secretary, Union of India [CITATION] to reiterate that the right to assemble and peaceful agitations are basic features of a democratic system. The Court also considered the judgments in Anita Thakur v. Government of Jammu and Kashmir [CITATION] and Bimal Gurun v. Union of India [CITATION] to further clarify the scope and limitations of the right to protest. These authorities helped the Court to strike a balance between the right to protest and the need for public order. The Court also considered Subramanian Swamy v. Union of India [CITATION] and Asha Ranjan v. State of Bihar [CITATION] to explain the concept of balancing of fundamental rights.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors. The Court recognized the fundamental right to protest and assemble peacefully, which is essential for a vibrant democracy. However, it also acknowledged the need for public order and the rights of residents affected by protests. The Court was particularly concerned about the continuous imposition of orders under Section 144 Cr.P.C. which resulted in a de facto ban on protests in Central Delhi. The Court also noted the adverse effects of protests at Jantar Mantar on local residents, including noise and pollution. The Court aimed to strike a balance between these competing interests by directing the authorities to regulate protests rather than impose blanket bans.

The Court’s reasoning emphasized the importance of balancing competing fundamental rights, ensuring that the right to protest is not completely extinguished while protecting the rights of residents. The Court also noted the importance of visible protest sites for the effectiveness of demonstrations.

Here’s a sentiment analysis of the reasons given by the Supreme Court:

Fact:Law

The ratio of fact:law in the Court’s decision is as follows:

The Court’s decision was significantly influenced by the factual circumstances of the case, including the continuous imposition of Section 144 orders, the adverse impact of protests on residents, and the need for a visible protest site. However, legal provisions and precedents were also considered to define the scope of the right to protest and the limits of government regulation.

Logical Reasoning

The Court’s logical reasoning for each issue is explained below:

Judgment

The Supreme Court held that while the right to protest is a fundamental right, it is not absolute and can be subject to reasonable restrictions in the interest of public order. The Court found that the repeated imposition of orders under Section 144 of the Cr.P.C. to ban public meetings in Central Delhi was an abuse of power and violated the fundamental right to peaceful assembly. The Court also held that the NGT’s complete ban on protests at Jantar Mantar was not justified and that the authorities should have regulated the protests rather than imposing a total ban. The Court directed the authorities to formulate guidelines for regulating protests in both the Boat Club area and Jantar Mantar, ensuring that protests do not cause undue hardship to residents while allowing citizens to exercise their right to protest.

The Court emphasized that the authorities should adopt measures to regulate demonstrations, ensuring that they are held within bounds and do not cause disturbance to the residents. The Court also noted that the authorities should examine requests for demonstrations on a case-to-case basis, keeping in view the likely impact on public order and safety.

The Court provided specific directions for the Commissioner of Police, New Delhi, to devise a proper mechanism for the limited use of the area for protests, taking into account the sensitivities of the area and the need to protect the rights of both protestors and residents. The Court also emphasized that the guidelines should include provisions for prior permission, restrictions on the number of participants, and regulations on the time and place of protests.

The Court quoted from thejudgment of Anita Thakur v. Government of Jammu and Kashmir, stating that “The right to peaceful assembly is a basic human right and a distinguishing feature of any democratic society. This right is recognized in almost all democratic countries. The right to assemble peacefully and to protest is recognized as a fundamental right under Article 19(1)(b) of the Constitution. Of course, this right is subject to reasonable restrictions imposed under Article 19(3) of the Constitution.” The Court further stated that “The State must respect the right of the citizens to assemble and protest peacefully. The State must also protect the rights of the citizens to live in a peaceful and healthy environment. The State must strike a balance between these competing rights.“

Ratio Decidendi

The ratio decidendi (the legal principle that forms the basis of the judgment) of this case is that:

• The right to protest and assemble peacefully is a fundamental right under Article 19(1)(b) of the Constitution.
• This right is subject to reasonable restrictions under Article 19(3) in the interest of public order, sovereignty, and integrity of India.
• Section 144 of the Cr.P.C. is meant for use in emergent situations and not for imposing blanket bans on public assemblies.
• The government can regulate but not prohibit public meetings and protests.
• The authorities must balance the right to protest with the need for public order and the rights of residents affected by protests.
• Authorities should adopt measures to regulate demonstrations, ensuring they are held within bounds and do not cause disturbance to the residents.
• A complete ban on protests is not justified; authorities should regulate rather than prohibit.

Obiter Dicta

The obiter dicta (statements made in passing, not essential to the decision) in this case include:

• The importance of visible protest sites for the effectiveness of demonstrations.
• The need for a proper mechanism for granting permission for protests, ensuring that the process is fair and not used to impose a de facto ban.
• The suggestion that the authorities should examine requests for demonstrations on a case-to-case basis, keeping in view the likely impact on public order and safety.
• The observation that the “clear and present danger” test applied by US Courts is not applicable in the Indian context, and the correct test is that of “apprehension of breach of peace.”

Analysis

The Supreme Court’s judgment in the Mazdoor Kisan Shakti Sangathan case is a landmark decision that clarifies the scope of the right to protest and the limits of government power in regulating public assemblies. The Court correctly recognized that the right to protest is essential for a functioning democracy and that it cannot be extinguished by blanket bans. The Court also acknowledged the need for public order and the rights of residents affected by protests. The Court’s direction to the authorities to formulate guidelines for regulating protests is a pragmatic approach that aims to strike a balance between these competing interests.

The judgment is significant because it:

• Reaffirms the fundamental right to protest and assemble peacefully.
• Restricts the arbitrary use of Section 144 of the Cr.P.C. to ban public assemblies.
• Emphasizes the need for a balanced approach that respects both the right to protest and the rights of residents.
• Provides clear directions to the authorities for regulating protests.

Impact:

The judgment has had a significant impact on the way protests are regulated in India. It has:

• Reduced the arbitrary use of Section 144 of the Cr.P.C. to ban public assemblies.
• Encouraged authorities to adopt a more balanced approach to regulating protests.
• Empowered citizens to exercise their right to protest more freely.
• Provided a legal framework for balancing the right to protest with the need for public order and the rights of residents.

Criticisms:

While the judgment is largely seen as a positive step, some criticisms include:

• The guidelines for regulating protests are not always effectively implemented.
• There is still a tendency among some authorities to impose excessive restrictions on protests.
• The judgment does not provide a clear definition of what constitutes a “reasonable restriction” on the right to protest.

Future implications:

The judgment has important implications for the future of protests in India. It is likely to:

• Lead to more regulated and peaceful protests.
• Encourage authorities to adopt a more rights-based approach to regulating protests.
• Strengthen the role of the judiciary in protecting fundamental rights.
• Provide a framework for balancing competing rights in a democratic society.