Under Article 19(1)(a) of the Constitution, all citizens shall have the fundamental right to freedom of speech and expression and under Article 19(1)(b) of the Constitution they have the fundamental right to freedom to assemble peaceably and without arms. When a group of citizens, therefore, assemble and shout slogans making some demands they exercise their fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution.

Kameshwar Prasad and Ors. v. State of Bihar 1962 AIR 1166

This will be clear from the decision of the Supreme Court in Kameshwar Prasad and Ors. v. State of Bihar 1962 AIR 1166 in which the Constitution Bench held that the right to make a demonstration is covered by either or both of the two freedoms guaranteed by Article 19(1)(a) and 19(1)(b) of the Constitution. Paragraph 13 of the judgment in Kameshwar Prasad as reported in the AIR is quoted herein below:

“The first question that falls to be considered is whether the right to make a ‘demonstration’ is covered by either or both of the two freedoms guaranteed by Article 19(1)(a) and 19(1)(b). A ‘demonstration’ is defined in the Concise Oxford Dictionary as “an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession”.

In Webster it is defined as a public exhibition by a party, sect or society…as by a parade or mass-meeting”. Without going very much into the niceties of language, it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one’s ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech.

It has however to be recognized that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Article 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration, which would fall within the freedoms guaranteed by Article 19(1)(a) and 19(1)(b).

It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.”

Restrictions on Right

The fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, however, is not an absolute right and under Clause (2) of Article 19 of the Constitution, the State can make a law imposing reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Similarly, the fundamental right to freedom to assemble peaceably and without arms guaranteed under Article 19(1)(b) of the Constitution is not an absolute right and under Clause (3) of Article 19 of the Constitution, the State can make a law imposing in the interests of sovereignty and integrity of India or public order, reasonable restrictions on the exercise of this right.

Thus, on both the fundamental rights to freedom of speech and expression guaranteed under Article 19(1)(a) and to freedom to assemble peaceably and without arms guaranteed under Article 19(1)(b), the State can make law imposing reasonable restrictions in the interests of public order.

Section 151 CrPC

Section 151

(1): A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under Sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or of any other l aw for the time being in force.

The very language of Sub-section (1) of Section 151 Cr.P.C. quoted above makes it clear that before the Police Officer resorts to Section 151 Cr.P.C. to arrest without orders from a Magistrate and without a warrant, it must appear to him that the person, who is sought to be arrested, is designing to commit a cognizable offence and that the commission of offence cannot be prevented except by such arrest.

This interpretation of Section 151 Cr.P.C. has been given by the Supreme Court in Ahmed Noormohmed Bhatti v. State of Gujarat and Ors. Paragraph 5 (five) of the judgment in Ahmed Noormohmed Bhatti as reported in the SCC is quoted hereinbelow:

A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise, prevented.

The section, therefore, expressly lays down the requirements for the exercise of the power to arrest without an order from a Magistrate and without a warrant. If these conditions are not fulfilled and a person is arrested under Section 151 of the Code of Criminal Procedure, the arresting authority may be exposed to proceedings under the law. Sub-section (2) lays down the rule that normally a person so arrested shall be detained in custody not for a period exceeding 24 hours. It, therefore, follows that in the absence of anything else, on expiry of 24 hours, he must be released. The release, however, is not instead upon only when his further detention is required or authorized under any other provision of the Code or of any other law for the time being in force.

It, therefore, follows that if before the expiry of 24 hours of detention it is found that the person concerned is required to be detained under any other provision of the Code of Criminal Procedure, or of any other law for the time being in force, he may not be released and his detention may continue under such law or such provision of the Code. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him.

The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundament rights of a citizen under Articles 21 and 22 of the Constitution.

Section 107 Cr.P.C

Another provision of law made by the State in the interest of public order on which reliance is placed by the respondents, is Section 107 Cr.P.C., which is quoted hereinbelow:

Section 107(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.

Thus, Section 107 Cr.P.C. provides that when an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb public tranquillity and is of the opinion that there is sufficient ground for proceedings, he may, require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

The object of Section 107 Cr.P.C. was explained by a Constitution Bench of the Supreme Court in Madhu Limaye and Anr. v. SDM Monghyr and Ors. AIR 1971 SC 2486. Paragraphs 33 and 34 of the Judgment in Madhu Limaye and Anr. v. SDM Monghyr and Ors. (supra) are quoted hereinbelow:

33. The gist of Section 107 may now be given. It enables certain specified classes of Magistrates to make an order calling upon a person to show cause why he should not be ordered to execute a bond, with or without sureties for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. The condition of taking action is that the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity.

The Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction. The section goes on to empower even a Magistrate not empowered to take action, to record his reason for acting, and then to order the arrest of the person (if not already in custody or before the Court) with a view to sending him before a Magistrate empowered to deal with the case, together with a copy of his reasons. The Magistrate before whom such a person is sent may in his discretion detain such person in custody pending further action by him.

The section is aimed at persons, who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity. This is an instance of preventive justice which the Courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose, Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order.

Therefore, the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders but as far as possible, the prevention of offences. It will be clear from the paragraphs of the judgment of the Supreme Court in Madhu Limaye and Anr. v. SDM Monghyr and Ors. (supra) quoted above that Section 107 Cr.P.C. is aimed at persons who by their conduct cause a reasonable apprehension in the mind of the Magistrate that there is likelihood of breach of the peace or disturbance of the public tranquillity and the power is to be used by the Magistrate under Section 107 Cr.P.C. for the preservation of public peace and tranquillity and to prevent commission of offence.

“Public order” and “public tranquillity

Paragraph 16 of the judgment in Madhu Limaye and Anr. v. SDM Monghyr and Ors. (supra), in which the Supreme Court has explained the terms “public order” and “public tranquillity” is quoted hereinbelow:

We may here observe that the overlap of public order and public tranquillity is only partial. The terms are not always synonymous. The latter is a much wider expression and takes in many things which cannot be described as public disorder. The words ‘public order’ and public tranquillity’ overlap to a certain extent but there are matters which disturb public tranquillity without being a disturbance of public order. A person playing loud music in his own house in the middle of the night may disturb public tranquillity, but he is not causing public disorder.

‘Public order’ no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It means what the French designate order publique defined as an absence of insurrection, riot, turbulence, or crimes of violence. The expression ‘public order’ includes absence of all acts which are a danger to the security of the State and also acts which are comprehended by the expression ‘order publique’ explained above but not acts which disturb only the serenity of others.

Therefore, the terms ‘public order’ and ‘public tranquillity’ mean absence of insurrection, riot, turbulence or crimes of violence and includes absence of all acts which are a danger to the security of the state and which disturb the serenity of others.

Himatlal K. Shah v. Police Commissioner, Ahemdabad

The Supreme Court has also held in Himatlal K. Shah v. Police Commissioner, Ahemdabad , that the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place though it can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interests of public order.

Paragraph 33 of the judgment of Sikri C.J. delivered on behalf of himself and on behalf of A.N. Ray and Jaganmohan Reddy, JJ, in Himatlal K. Shah is quoted hereinbelow:

…the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.

This Court in Babulal Parate v. State of Maharashtra , rightly observed: The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India.

Reference

Medha Patekar v. State of MP (2007)