The high court Bench held that failure to describe what the rare and exceptional cases or circumstances justifying such blanket prohibitions are, confers arbitrary power upon the authorities to refuse permissions for holding lawful meetings.
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ON Friday, the Andhra Pradesh High Court quashed the government Order issued on January 2 this year prohibiting or restricting public meetings and assemblies on roads, roadsides and road margins throughout the state. A division Bench comprising Chief Justice Prashant Kumar Mishra and Justice D.V.S.S. Somayajulu passed the order to this effect. The Bench held that the government order was arbitrary, excessive and also failed the test of proportionality.
“It is not a reasonable restriction. While the avowed objective of the State to prevent loss of life etc., can be said to be reasonable, the decision-making process is taken away by the directions in the government Order. Ultimately, arbitrary power is conferred on an officer in relation to a Part 3 fundamental right,” the Bench held.
The Bench was ruling on a public interest litigation (PIL) filed by Kaka Ramakrishna, the secretary of the Communist Party of India, Andhra Pradesh, challenging the government as being illegal, arbitrary and violative of Articles 19(1)(a) and 19(1)(b) of the Constitution. A few connected petitions also challenged the said order. Ramakrishna was represented by senior advocate Raju Ramachandran and advocate N. Ashwani Kumar. Senior advocate Siddharth Luthra also appeared for one of the petitioners.
On January 2, the state government issued the government Order, citing an incident that occurred at Kandukuru on December 28 last year wherein eight persons allegedly died in a stampede during a political rally of Telugu Desam Party (TDP) chief N. Chandrababu Naidu. The state government also relied on a similar incident that occurred again on January 1, in which three women were crushed to death and at least 18 were left injured during the distribution of freebies in Guntur by the TDP.
The petitioner contended that the government’s order indirectly imposed a complete ban on the conduct of public meetings and processions on public roads. It required the authorities, under Section 30 of the Police Act, not to grant licence to conduct public meetings on national highways, state highways, municipal roads and panchayat roads.
The Bench, on the interpretation of Section 30, opined that power given to the police or the magistrate was only to regulate the conduct of assemblies, processions etc., more so when they are likely to obstruct or block the roads.
“In this court’s opinion, the right to assemble peacefully, the right to protest peacefully in streets, public places, thoroughfares etc., cannot be restricted totally by virtue of these Sections of law,” the Bench held.
The Bench also held that failure to describe what are the rare and exceptional cases or circumstances justifying such blanket prohibitions confers arbitrary power upon the authorities to refuse permissions for holding lawful meetings.
The government order, inter alia, provided “It is therefore ideal that no licence be granted for any application seeking permission to conduct a meeting on state highways and national highways.” The Bench found this virtually taking away the discretion that is to be exercised by officers at a lower level.
“In effect, the [government Order] directs [officers at lower levels] not to issue licences on roads, highways, streets etc., and to suggest alternative places, for congregations and processions. This virtually amounts to a direction to act in a particular way which is the exact opposite of what the Act contemplates by leaving it to the discretion of the officer. By an executive Order, the provisions of the Act are sought to be diluted and also controlled,” the Bench held.
In addition, the Bench held that as per Section 30(2) of the Police Act, the licence can only be insisted upon if the officer is of the opinion that the procession or meeting may cause obstruction etc., which indicates that a case-to-case decision must be taken based upon the officers own analysis adding that the officer can insist on a licence being obtained only if they conclude that there is a likelihood of breach of peace.
“The government Order in the opinion of this court takes away this discretion and directs the officers to act in a particular way on all roads, highways, streets etc. It fails on the issue of proportionality also,” the Bench held.
On January 14, a vacation Bench of the high court temporarily suspended the government’s Order. An appeal against the interim Order was dismissed by the Supreme Court.
Advocate General for the State also argued that the vacation Bench had no jurisdiction to entertain a public interest litigation. The division Bench headed by Chief Justice found merit in the argument of the Advocate General. It said that the PIL in question did not come within the definition of an urgent matter which could not wait till the end of the vacation.
Click here to read the Order.
