INTRODUCTION

Our constitution gives every citizen of this country a set of basic rights which are known as
Fundamental Rights. Fundamental Rights are protected and guaranteed by the Constitution so
they cannot be taken away from us by an ordinary legislation. Fundamental rights are
protected against invasion by the executive, legislature and the judiciary. All fundamental
rights are limitations on legislation. But state may impose certain reasonable restrictions on
these rights.

They have been classified under the six categories- Right to Equality, Right to Freedom,
Right against Exploitation, Right to Freedom of Religion, Cultural and Educational rights and
Right to constitutional remedies.

Right of assembly is guaranteed under article19 (1)(b) of the constitution “to assemble
peaceably and without arms”. This right includes the rights to hold meetings and to take out
processions.

The right is however subject to the following restrictions. :

1) The assembly must be peaceful and harmonious

2) It must be unarmed and not threatening the safety of the people;

3) Reasonable restrictions can be imposed under clause 3 of article 19.

This right is restrictive in nature. Article 19 (3) imposes restrictions which are in interest of
the sovereignty and integrity of India and in public order. Section 141 of Indian penal code
defines unlawful assembly as an assembly of five or more persons is designated an “unlawful
assembly”, if the common object of the persons composing that assembly is against the
public order like to commit trespass, to resist the execution of law or any legal process and
other reasons.

Section 144 of CrPC provides that when a District Magistrate or other specified official, finds
that there is nuisance or ‘apprehended danger’ which must be prevented or a speedy remedy
is desirable, then she can direct any person to abstain from a certain act or can pass orders
with respect to certain property in that person’s possession or management. A Magistate can
pass such a direction, if she considers that such direction is likely to prevent obstruction,
annoyance, injury to any person lawfully employed or danger to human life, health or safety
or disturbance of public tranquillity or a riot or an affray.

BACKGROUND
The British colonial ruler keenly regulated the ability to assemble. The imperative for this
was the interest of the State in preventing organising around the freedom movement. Five
colonial-era statutes impact the freedom to assemble in modern India.

The Police Act, 1861 provided the police with the ability to ‘direct the conduct’ of assemblies
and processions.1 Ones that were likely to cause ‘a breach of the peace’ were required to
apply for licenses.2 The Prevention of Seditious Meetings Act, 1911 was to prevent public
meetings that were likely to promote sedition or disaffectionor. The Defence of India
Ordinance, 1939 empowered the government to prohibit or regulate meetings, assemblies and
processions. The Criminal Procedure of 1872 curtailed assemblies and was meant to provide
for employing the military in aid of the civil power. This legislation continues in its amended
form – the Code of Criminal Procedure, 1973.

The Armed Forces Special Powers Ordinance, 1942 passed in response to the Quit India
Movement, continues in contemporary India. The Armed Forces Special Powers Act, 1958,
grants the armed forces special powers in ‘disturbed areas’ in order to maintain public order.
Such powers include the power to prohibit the assembly of five or more persons. To disperse
such an ‘unlawful’ assembly, officers of the armed forces, after giving due warning, are
allowed to fire upon or use such force even to the extent of causing death.

1
Section 30 (1), Police Act 1861
2
Section 30 (2), Police Act 1861
RESEARCH QUESTIONS

 Can the state impose restriction on this right and use section 144 of CrPC for its own
benefits and restrict citizens’ right to protest?
 Why do government servants have been denied of their basic fundamental right?

ISSUE 1:

Article 19 (3) of the Constitution provides that nothing in the right to assemble peaceably
shall affect the operation of any existing law in so far as it imposes, or prevents the State
from making any law imposing, in the interests of the sovereignty and integrity of India or
public order, reasonable restrictions on the exercise of that right.

The restrictions pertaining to sovereignty and integrity were added after the adoption of the
Constitution. Damodar Swarup Seth, a member of the Constituent Assembly of India argued
that these restrictions (then public order and morality) ensure that the rights guaranteed under
this article are placed at the “mercy or the high-handedness of the state” and that Supreme
Court would “have no alternative but to uphold the restrictive legislation.” His fears were
well founded, upon reviewing the jurisprudence of the Supreme Court.

The CrPC provides that any Executive Magistrate or officer in charge of a police station may
command any unlawful assembly, or any assembly of five or more persons likely to cause a
disturbance of the public peace to disperse. Failure by the assembly to disperse could result in
use of force or arrests by the police. The CrPC also enables the Executive Magistrate to use
the armed forces to disperse an assembly, in the interests of public security.3 Significantly,
the CrPC mandates that there can be no prosecution against any person for acts done with
regard to dispersal of an assembly, except with the sanction of the Government. The Indian
Penal Code, 1860 punishes participants in an unlawful assembly with imprisonment which
may extend to six months or with fine or both.

A religious procession on the 10th day of Mohurram (June 9) was broken up by the police in
Srinagar. The chief minister of Uttar Pradesh, Mayawati, banned meetings and processions
soon after assuming office but relented a few days later. She realised of course that such a
blanket ban had no chance of survival in the courts. There is scope for judicial intervention in
cases of bans for a term, but judicial intervention becomes in fructuous and futile if the state
imposes a ban on a particular meeting at the last moment.

In 1991 the Madras High Court, on the petition of K Thiagarajan, struck down the order of
the commissioner of police, Egmore, banning public meetings for 15 days. The petitioner had
sought permission for a meeting to be held on September 27, 1991. Such bans were renewed
as a matter of course. The court observed that "merely under a pretext or assumption that
there would be a breach of peace or a law and order problem would be created, summary

3
Section 144 (1) Code of Criminal Procedure, 1973
rejection of an application for the conduct of a meeting could not be permitted". It deprecated
the practice of renewing such ban orders fortnightly.

In a landmark judgment given by the Supreme Court on the incident that took place on the
midnight of 4-5th June, 2011 at Ramlili Maidan, Delhi where Baba Ramdev and his
supporters were carrying on a protest against corruption and black money. Their protest was
against the government who failed in taking effective steps to curb the menace of black
money and corruption in India. The apex court has held that the protest was peaceful.

In this regard, the Supreme Court observed that the decision to forcibly evict people sleeping
at the Ramlila Maidan at midnight of 4-5th June 2011 taken by either the police
independently or on consultation with the Ministry of Home Affairs was arbitrary, abuse of
power and improper. It was an invasion of legal protections available to the people present
there. Thus the restriction was unwarrantedly executed and showed the might of the State.

The constitutionality of section 144 CrPC was challenged in Madhu Limaye v. the State of
Maharashtra. The court framed the question as - whether the provisions of S. 144 and Chapter
VIII of the Code can be said to be in the interests of public order in so far as the freedom of
speech and expression, rights of assembly and formation of associations and unions are
concerned? The Court refers to Justice Subba Rao’s much cited passage in the context of
Article 19 (2) from Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia

"Public order" is synonymous with public safety and tranquillity: it is the absence of disorder
involving breaches of local significance in contradistinction to national upheavals, such as
revolution, civil strife, war, affecting the security of the State".

Here, Justice Subba Rao makes the point that public order is local and not national in nature.
Yet, the Supreme Court does not connect this with the constitutionality of section 144.
Instead it explains that section 144 is imposed depending on the ‘urgency of the situation’ to
prevent ‘harmful occurrences.’ It reasons that the power must be used in a manner that would
stand ‘further judicial scrutiny’ into its ‘efficacy and extent of application’. It does not either
explain or illustrate what this means. Finally the Court finds section 144 to be constitutional
and rejects the argument that the section is overboard

It has been held that Section 144 of Criminal Procedure Code which prohibits the holding of
meetings is not volatile of freedom of assembly.4 Under this section meetings can be banned
and any assembly of more than five persons can be declared unlawful and then ordered to be
dispersed.

ISSUE 2:

A rule that prohibited any form of demonstrations by government employees was examined.
The court reasons that a government servant, did not lose her fundamental rights, and that the
rule by prohibiting both orderly or disorderly demonstrations violates Article 19 (1) (b). 5 The

4
Balm Lai v. State of Maharashtra, AIR 1961 S.C. 884
5
Kameshwar Prasad v State of Bihar
Court did not take issue with the notion that governmental employees as a class could have
their rights or freedoms burdened. The apex court explains that “by accepting the contention
that the freedoms guaranteed by Part III and in particular those in Article 19 (1) (a) apply to
the servants of Government we should not be taken to imply that in relation to this class of
citizens the responsibility arising from the official position would not by itself impose some
limitations on the exercise of their rights as citizens”.

In a set of three cases, the Supreme Court has categorically denied any right to strike. The
Petitioners sought a declaration by the Court that strikes by lawyers were illegal. The Court
referred to Mahabir Prasad wherein it had held that a lawyer could not fail to appear in court
on reasons of a strike or boycott.6 It also referred to the case of Ramon Services which upheld
the principle that strikes by lawyers was illegal. It further noted that any resolutions passed by
the Bar “expressing want of confidence” in judicial officers would amount to contempt of the
Court.. Curiously, the court also declared that a strike could not be justified on any grounds
save when there was an attack on the independence of the legal institutions.

Pursuant to a strike in the Posts and Telegraph Department proceedings were initiated and
action taken against the Appellant. The Appellant challenged the action taken as well as the
validity of the Essential Services Maintenance Ordinance 1960, which prohibited strikes, as
violating Article 19(1)(a) and (b) of the Constitution. The Court referred to All India Bank
Employee’s Association and held that there was no fundamental right to strike.7

T. K. Rangarajan v. Government of Tamil Nadu dealt with over two lakh employees being
terminated from employment by the state government, for going on strike. The question
before the Court, was whether these employees had a fundamental right to strike? The Court
referred to Kameshwar Prasad, Radhey Shyam Sharma and All India Bank Employee’s
Association, and held that Article 19 did not guarantee a right to strike.

CONCLUSION

6
Harish Uppal v. Union of India, AIR 1962 SC 1166.
7
Radhey Shyam Sharma v. Post-Master General