By Mounica Kasturi, Symbiosis Law School, Pune
“Editor’s Note: Fundamental Rights are the most integral part of any democratic Constitution. These rights have been enshrined in Part III of the Indian Constitution. Along with rights bestowed, citizens are expected to conform to certain duties, known as Fundamental Rights, imbibed in Part IV. There are also Directive Principles of State Policy that prescribe the principles which should be adopted by states in governance. This case affirmed that these three must be read together while determining any constitutional issue. However, the larger question in this famous case was that of balancing conflicting interests- Fundamental Rights of individuals against the greater common good. This case dealt with instances where restrictions can be imposed on rights in order to maintain public peace and tranquility. It also discussed misuse of power by police authorities.”
The Part III of Constitution of India envisages Fundamental Rights that are guaranteed to the citizens of our country. The ambit of these rights is far-fetched, though not unlimited. The Constitution simultaneously recognises the need for restriction on the Fundamental Rights. Power has been conferred on the legislature to impose reasonable restriction of these rights. The restriction must be just, fair and must make way for public interest.
Along with rights, citizens are expected to diligently perform some duties. Part IVA lays down the Fundamental Duties to be followed by the citizens of India. Part IV codifies the Directive Principles of State Policy guiding the government in formulating policies. There is a common thread that runs through all the three parts and while interpreting a law a combined approach of these three must be taken.
Certain provisions of penal laws might be against the spirit of certain fundamental rights like Art.19 or Art.21 but they may be necessary in some circumstances. The following case brought out the conflict between Fundamental Rights and circumstances where these rights can be curtailed.
FACTS OF THE CASE[i]
- In 2008, Baba Ramdev raised the issue of black money publically. He along with other luminaries participated in the Anti- Corruption Rally held at the Ramlila Maidan on the 27th of February, 2011.
- On 20th April, 2011, the President of Bharat Swabhiman Trust, Delhi Pardesh submitted an application to the MCD proposing to take Ramlila Maidan on rent, subject to the general terms and conditions, for holding a yoga training camp between 1st June, 2011 to 20th June, 2011. He had also submitted an application to the Deputy Commissioner of Police (Central District) seeking permission for holding the Yoga Training Camp. This permission was subject to the terms and conditions stated therein.
- In the month of May, repeated protests were made by Baba Ramdev against corruption. He wrote to the Prime Minister and announced to go on a hunger strike against the issue of black money. He also sought permission for holding a dharna at the Jantar Mantar which was granted with certain conditions. Within his circles, it was well-noted that he was planning on an anshan satyagraha at the Ramlila Maidan.
- In this backdrop, several ministers of the Union Cabinet tried to convince him regarding the steps taken by the government on the issue of black money and persuaded him to refrain from hunger strike. At the same time, Anna Hazare started his protests.
- On the 4th of June, 2011 Baba Ramdev started his hunger strike with the motto of ‘bhrashtachar mitao satyagraha’. Despite the assurance given by Acharya Virendra Vikram, the event was converted into an Anshan and the crowd at the Ramlila Maidan swelled to more than fifty thousand. No yoga training was held for the entire day. Certain negotiations took place between Baba Ramdev and some of the ministers on telephone, but Baba Ramdev revived his earlier condition of time-bound action-an ordinance to bring black money back. At about 11.15 p.m., it is stated that Centre’s emissary reached Baba Ramdev at Ramlila Maidan with the letter assuring a law to declare black money hoarded abroad as a national asset. The conversation with Baba Ramdev convinced the government that Baba Ramdev will not wind up his protest.
- At about 11.30 p.m., a team of Police, led by the Joint Commissioner of Police, met Baba Ramdev and informed him that the permission to hold the camp had been withdrawn and that he would be detained. At about 12.30 a.m., a large number of CRPF, Delhi Police force and Rapid Action Force personnel, totaling approximately to 5000 reached the Ramlila Maidan. At this time, the protestors were peacefully sleeping. Thereafter, at about 1.10 a.m., the Police reached the platform to take Baba Ramdev out, an action which was resisted by his supporters.
- At 1.25 a.m., Baba Ramdev jumped into the crowd from the stage and disappeared amongst his supporters. He thereafter climbed on the shoulders of one of his supporters, exhorting women to form a barricade around him. A scuffle between the security forces and the supporters of Baba Ramdev took place and eight rounds of teargas shells were fired. By 2.10 a.m., almost all the supporters had been driven out of the Ramlila Maidan. The Police sent them towards the New Delhi Railway Station. Baba Ramdev, who had disappeared from the dais earlier was apprehended by the Police near Ranjit Singh Flyover at about 3.40 a.m. At that time, he was dressed in salwar-kameez with a dupatta over his beard. He was taken to the Airport guest-house. It was planned by the Government to fly Baba Ramdev in a chopper from Safdarjung Airport. However, at about 9.50 a.m. the Government shelved this plan and put him in an Indian Air Force helicopter and flew him out of the Indira Gandhi International Airport.
These events and the prima facie facts stated above, persuaded the High Court to issue a suo moto notice vide its order dated 6th June, 2011. This notice was issued to the Home Secretary, Union of India, the Chief Secretary, Delhi Administration and the Police Commissioner of Delhi to show cause and file their personal affidavits explaining the conduct of the police authorities and the circumstances which led to the use of such brutal force and atrocities against the large number of people gathered at Ramlila Maidan. A notice was also issued to Bharat Swabhiman Trust. In order to ensure proper independent assistance to the Court, the Court also appointed an amicus curiae.
FUNDAMENTAL RIGHTS AND RESTRICTIONS
Article 19(1)(a) and 19(1)(b) of the Constitution of India guarantee to all citizens the right to freedom of speech and expression and the right to assemble peacefully without arms. These provisions protect the basic rights of the individuals and uphold the dempcratic spirit of the nation. However, these rights are not absolute and the state is empowered by Art. 19(2) and 19(3) to impose reasonable restrictions in the interest of security of the State, public order etc. The underlying principle is that public order and tranquillity are supreme and take precedence over individual rights.
Section 144 of the Code of Criminal Procedure, 1973 empowers certain officers to prohibit an assembly subject to the conditions:
(1) There must be sufficient grounds for proceeding;
(2) Immediate prevention or speedy remedy is desirable; and
(3) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.
Justice Swatanter Kumar began the judgement by comparing the First Amendment of the United States Constitution which provides for the freedom of speech of press in the American Bill of Rights with Art.19(1)(a) of the Constitution of India. In the US, the language of the amendment provides for absolute freedom without any restrictions what so ever. This is in contrast to the ‘balancing of interests’ principle followed by the Indian Constitution. The ‘balancing of interests’ approach is basically derived from Roscoe Pound’s theories of social engineering which says that a social interest may not be balanced against individual interest, but only against another social interest.
Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein. The State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. As observed in the case of State of West Bengal v. Subodh Gopal Bose[ii] :
“The right that springs from Article 19(1) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder.”
This was referred to by the Hon’ble Judge to bring to light the scope and ambit of the Fundamental Rights guaranteed under Part III and the power of the state to restrict these rights. The case at hand involved a pertinent issue of the balancing of fundamental right to speech and expression and assemble peacefully without arms with the duty of the state to protect public safety.
The restrictions as provided for in the Constitution of India must be reasonable. This principle as contemplated under our Constitution brings the question as the test of reasonableness. The concept of `procedure established by law’ changed its character after the judgment of Maneka Gandhi v. UOI [iii], where the Court took the view:
“The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.”
The Indian Constitution is unique becuase it guarantees fundamental rights to its citizens and simultaneously, controls these rights for the interests of the public to ensure peace and tranquillity. It empowers the state to make laws to such effect and directs as to when such powers can be used to restrict the Fundamental Rights. Finally, it again says that such restrictions must be reasonable.
The Hon’ble Judge referred to Fundamental Duties and Directive Principles of State Policy. Article 37 makes the Directive Principles of State Policy fundamental in governance of the country and provides that it shall be the duty of the State to apply these principles in making laws. Article 51A deals with the Fundamental Duties of the citizens. It postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to abjure violence. This case reiterates a combined reading of the three parts so as to establish the duty of the state to protect the public interest and safeguard public peace while also having to protect the fundamental rights of every individual.
The Court said that while examining the limitations that can be imposed on Fundamental Rights, the duties of the citizens must also be looked into. But it did not cite any instance or example to show how it can be done.
If the intention of the Court behind explaining the importance of Fundamental Duties was to emphasize the fact that the people and Baba at Ramlila Maidan did not act properly when they refused to comply with the orders of the police, then the Court might have dealt with it by only citing the provisions of the Indian Penal Code which make it an offence to obstruct a police officer from doing his duty. The emphasis on fundamental duties was unwarranted in this case.
After deliberation on the various aspects of law, precedents and the objective behind such enactments, the judgement analyses the factual matrix of the case. The court listened to the version put forth by the amicus curiae and also the police. It also considered the video footage of various news channels to verify certain facts.
Based on the law and facts, the issues that arose were:
- Whether power under section 144 of Cr.P.C. has been misused.
- Whether Right to sleep can be read into Right to Life under Article 21 of the Indian Constitution.
- Whether there was contributory negligence on the part of Ramdev Baba’s trust.
It was informed to the court that police had imposed three conditions on Baba Ramdev for holding his Yoga camp. These conditions were that permission from the owner of the property must be taken, there must be no obstruction to the free flow of the traffic in the area and sufficient number of volunteers must be deployed at the venue.
The trust had taken prior permission from the Delhi Municipal Corporation for the use of Ramlila Maidan and police forces were deployed by the state and the police ensured that the people entering the maidan were thoroughly checked and also ensured that the gathering was not carrying any arms. The police could have restricted the crowd at the entrance itself, if necessary.
The time when the orders were passed, all the followers were peacefully sleeping. Section 144 is to be applied in cases where there is imminent threat to security. A peacefully sleeping crowd cannot be a threat. The police, if needed could order the followers to vacate the premises the next morning, by giving specific reasons. A notice to evacuate given at around 11:30 pm in the night cannot be said to be reasonable. There were a huge number of people and it is of common understanding that displacement of such a crowd (approximately 5000 members) will take a couple of hours, to say the least. At 11:30 p.m., finding alternate accommodation for a huge crowd is highly impossible.
Secondly, Section 144 can only be used in cases where there is a need for immediate prevention or there is a need for speedy remedy. Section 144 cannot be used for dangers which are foreseeable, but only in cases of imminent dangers. It is settled law that the order issued under section 144 must prescribe the material facts. A restriction on a constitutional right has to be used very sparingly and cautiously.
According to Mr. Jethmalani, “Use of this property doesn’t depend upon the permission from the Delhi Police, they could neither grant permission, nor could they refuse it. There is no rule under which I could be asked to take permission. It is part of the Indian tradition to hold meetings at public places…”[iv] However, this argument does not hold water. Although Fundamental Rights are considered sacred, when Police are entrusted the duty of preserving the public peace and tranquillity, they must also be given the powers to regulate public gatherings. Imposing reasonable restrictions on any public gathering especially when it is evident that a large number of people are expected is necessary to regulate and take sufficient precautionary measures. Delhi Police, having granted such permission, was fully competent to revoke it as well as to pass orders under Section 144 Cr.P.C. This was correctly held by the Hon’ble Judge.
Nonetheless, it is accepted that the police was required to give adequate notice to people before resorting to any action and if the people did not cooperate, only then the police could have taken any action. In any country, especially a democracy, the balancing of interests must be ensured and no organ of the state should have unlimited or unguided powers. This is applicable equally to the public as well to the police.
Therefore, for invoking section 144, Cr.P.C., three conditions must be satisfied-
- If there is immediate provocation and if there is a need for speedy remedy.
- Police also have to state material facts in the order passed
- Only prohibit certain acts.
Immediate provocation or any exigency situation could not be established by the police. The police deny resorting to lathi-charge and tear gas, but the video footage reveealed otherwise. In addition to this, the justification by the police that the assembly would have caused communal tensions in the area wass baseless and not backed by any evidence. The fact that it was not the first time that the Ramlila Maidan wass used for such large gathering also must be noted.
The Apex Court also issued directions to the police that while considering “threat perception” as a ground for revoking permissions or passing an order under Section 144. The threat perception under section 144 must be real and not illusory. The Court said the police should have in place a complete and effective plan for dispersal, before evicting the gathering by use of force from a particular place. Such a plan did not exist in this case. The police only planned as to the accommodation and subsequent course only for Baba Ramdev. The followers were sent to the Delhi Railway Station area which is always in a rush.
The Hon’ble judges held that the invoking of S.144 was not called for in this case and the the police have failed to substantiate their reasons with sufficient material. This is welcome. But at the same time, they did not label the order malafide. The court held that the action of the police suffers from arbitrariness but every arbitrary action need not necessarily be malafide. This could be because the intentions of the government and Home Ministry could be shown to be malafide. It also distinguishes between the police personnel into two parts. One, who were compassionate and helpful in evicting the people. The other section who resorted to unnecessary use of force causing injuries and worsening the situation. However, this is not pragmatic and it is a herculean task to make such a classification.
In totality, it can be concluded that Section 144 was abused by the state machinery and caused not only grievous hurt but also the death of an innocent lady Rajbala. Her family was held to be entitled to the ad-hoc compensation of Rs.5 lacs while persons who suffered grievous injuries and were admitted to the hospital would be entitled to compensation of Rs.50,000/- each and persons who suffered simple injuries and were taken to the hospital but discharged after a short while would be entitled to a compensation of Rs.25,000/- each.
Rule of Contributory Negligence says that one who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it.
This does not depend on the breach of any duty between the plaintiff and the defendant but depends entirely on the question whether the plaintiff could have reasonably avoided the consequences of the defendant’s negligence. Here, the court held that the Trust and its representatives ought to have discharged their legal and moral duty and should have fully cooperated in the effective implementation of a lawful order passed by the competent authority under Section 144 Cr.P.C. Keeping in view the stature and respect that Baba Ramdev enjoyed with his followers, he ought to have exercised the moral authority in the welfare of the people present.
It would have served the greater public purpose and even the purpose of the protests for which the rally was being held, if Baba Ramdev had requested his followers to instantaneously leave Ramlila Maidan peacefully or had assured the authorities that the morning yoga programme or protest programme would be cancelled and the people would be requested to leave for their respective places. Absence of performance of this duty and the gesture of Baba Ramdev led to an avoidable episode. The court held that the negligence of the state and the trust was in the ratio of 3:1. It asked Ramdev’s foundation-Bharat Swabhiman Trust – to pay 25 per cent of the compensation to the dead and the injured.
This view of the Hon’ble Supreme Court is not acceptable. In this case, neither the imposition of section 144 nor the withdrawal of permission is lawful. The necessary procedures were not followed. The reasons in writing were not given. The existence of emergency situation was not proven.
The court in a way contradicted its own principles. The judge held that the eviction and the orders were illegal. The court placing utmost reliance on the Fundamental Duties, established a duty on the trust. But duties are not to be enforced in situations where one is subjected to unlawful treatment. As commented by Mr. Arun Jaitely, it shakes the foundation of the Fundamental Right by laying down a highly doubtful proposition that once the right to protest is denied, the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression. If a protester is within his constitutional rights to organise a peaceful protest, he is equally within his rights not to accept an illegal order denying his right to protest. The ambit of fundamental rights is greater than that of the duties and such a decision is diluting the fundamental rights. If a person has a right to protest, so must he have an equal right to protect against any illegal order against his protest.
RIGHT TO SLEEP-
“An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right.”
Justice B.S. Chauhan in his opinion wrote that when police disturbed the crowd at night at 1:00 a.m., their right to sleep was violated. He held that right to sleep forms an essential part of Article 21 which guarantees personal liberty and life to all. Sleep forms an essential part of living a peaceful life, hence it is a fundamental right.
This interpretation was not called for. The question in the case needed no pronouncement as to whether right to sleep is a fundamental right. It is undisputed that the ambit of Art.21 is voluminous but nonetheless the courts before recognising a new right into Art.21 must consider its practicality and maintainability. What about the cases where a construction by the state is going on a busy highway in night? The result would be that whenever any case involving right to sleep will reach the courts, it will add uncertainty to Article 21 jurisprudence. Enforcement mechanisms in our country will not be able to provide for smooth exercise of both the state’s and individual’s interests.
Though the judgment has its defects, it can be concluded that the suo moto action taken up by the Hon’ble Supreme Court was laudable in light of common interest. This reiterates the fact that the Indian Judiciary has always been fundamental in upholding the fundamental rights of people. This judgement can be seen as a landmark one in protecting the rights of the protesters. The principles of law were discussed at length. The police have been held liable for the misuse of power under S.144 Cr.P.C.. Right to Sleep was recognised as a fundamental right under Art.21 and ad-hoc compensation was awarded to the victims in furtherance of justice, equity and good conscience.
Edited by Kudrat Agrawal
[ii] AIR 1954 SC 92.
[iii] AIR 1978 SC 597.