Himat Lal K. Shah vs Commissioner Of Police, … on 15 September, 1972

           PETITIONER:
HIMAT LAL K. SHAH

	Vs.

RESPONDENT:
COMMISSIONER OF POLICE, AHMEDABAD & ANR.

DATE OF JUDGMENT15/09/1972

BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
RAY, A.N.
REDDY, P. JAGANMOHAN
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH

CITATION:
 1973 AIR   87		  1973 SCR  (2) 266
 1973 SCC  (1) 227
 CITATOR INFO :
 RF	    1973 SC 106	 (140)
 D	    1974 SC1940	 (46)
 RF	    1975 SC1505	 (2)
 R	    1989 SC1988	 (31)


ACT:
Constitution  of India, 1950, Arts. 19(1) (a), (b) and	(d)-
Right of citizens to hold public meetings on public streets-
If fundamental right.
Bombay	Police	Act, 1951, s. 33(1) (O) and r.	7  of  Rules
framed	 thereunder-Rule  requiring  prior  permission	 for
holding	 meetings-Rules	 if  ultra  vires  section-Rule,  if
violates fundamental rights.



HEADNOTE:
The  appellant	whose application for permission to  hold  a
public meeting on a public street was rejected contended  in
a writ petition in the High Court, (1) that the rules framed
by  the	 first respondent under s.33(1) (O)  of	 the  Bombay
police Act. 1951,  were ultra vires section in that the sub-
section does not authorise framing of rules requiring  prior
permission for holding meetings and (2) that the sub-section
and  the  rules	 were violative of  the	 fundamental  rights
guaranteed  under art.19(1) (a)and (b) of the  constitution.
The High Court dismissed the petition.
HELD  : (per Curiam) : Rule 7 of the rules is  void.  [283F;
293E; 299D]
(Per   S.  M.Sikri,  C.J.,  A.N.   Ray	and  P.	  Jaganmohan
Reddy,JJ):
(1)The	impugned rules are not ultra vies s/33 (1)  in	so
far  as they require prior permission for holding  meetings,
[280B-C]
Sub-section 33 (1) (0) proceeds on the basis that the public
has a right to hold assemblies and take processions on	and,
along  sawn though It is necessary to regulate	the  conduct
and  behaviour	or  action  of'	 persons  constituting	such
assemblies  or processions in order to safeguard the  rights
of citizens and in order to preserve public order.  The word
'regulate'  would  include  the	 power	to  prescribe	that
permission in writing should be taken a few days before	 the
holding of a meeting on a public street.  The impugned rules
do  not prohibit the holding of meetings but only  prescribe
that permission should be taken. [275B-E]
(2)(a)	Section 33(1) (0) does not violate Art.	 19(1)	(b),
and  Art.  19(i) (a) is not attracted to the facts  of	'the
case.  The dub-section has nothing to do with the  formation
of assemblies and processions but only deals with persons as
members	 of  assemblies	 and  processions.   The  subsection
enables	 the  Commissioner  to make rules  to  regulate	 the
assemblies and processions.  Without such rules, in  crowded
public streets, it would be impossible for citizens to enjoy
their  various rights.	Indeed, the section may be  said  to
have been enacted in aid of the rights under Art. 19
(1)  (a) and 19(1) (d). [281B-D]
(b)It  could not be contended by the 'respondent  that	as
under the Common Law of England no one has a right to hold a
meeting	 on a highway, and the same law prevails  in  India.
and therefore, the word 'regulate' means a right to prohibit
the  holding  of  a meeting also.  In  India,  the  law	 has
developed  on  slightly different lines, and  a	 citizen  in
India had, before the Constitution, a right to hold meetings
on public streets subject to the control of the appropriate
authority  regarding the time and place of the meetings	 and
subject to considerations of public
267
order  While  prior  to	 the  coming into  force  of   the
Constitution, the right to assemble could have been abridged
or  taken  away by law, after the coming into force  of	 the
Constitution,  the  right  cannot  be  abridged	 except	  by
imposing reasonable restrictions.  There is nothing wrong in
requiring  prior permission to be obtained before holding  a
public	meeting a public street, for the Tight	which  flows
from  Art. 19(1)(b) is not a right to hold a meeting at	 any
place and time.	 But, 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. in the present case, however, r. 7 does not give	 any
guidance  to the officer authorised by the  Commissioner  of
Police	as  to	the circumstances in  which  he	 can  refuse
permission to hold a public meeting.  The officer cannot  be
expected  to read the marginal note to s. 33 or to  look  at
the  scheme of the Act to spell out the limitations  on	 his
discretion.   Therefore, the rule, which  confers  arbitrary
powers	on the authorised officer must be struck down.	 The
other  rules  which  merely  lay  down	the  procedure	 for
obtaining   permission	cannot	survive,  but,	it  is	 not
necessary  to  strike them down, for, 'without	r.  7,	they
cannot operate.	 Rule's 14 and 15 deal both with processions
and  public  meetings  and  their validity,  in	 so  far  as
processions  are concerned, is not affected. [281D-G;  282H;
283A-C]
Parthasaradiayyangar-  v.  Chinnakrishna  Ayyangar,   I.L.R.
[1882] 5 Mad. 304, Sundram Chetti v. The Queen I.L.R. [1883]
6 Mad. 203, Sudagopachariar v. A. Rama Rao, I.L.R. [1903] 26
Mad.  376, Vijiraghava Chariar v. Emperor, I.L.R. [1903]  26
Mad,  554 Hasan v. Muhameed Zaman, 52 J.A. 61, Chandu  Sajan
Patil v. Nyahalchand, A.I.R. 1950 Bom. 192, Shaikh Piru	 Bux
v. Kalandi Pati, (Civil Appeal No. 25 of 1966 dated  October
29,  1968,  Saghir Ahmad v. State of U.P., [1955]  1  S.C.R.
107,  C.S.S.  Motor  Service v. State of  Madras,  [1952]  2
M.L.J. 894, Railway Board v. Narinjan Singh, [1969] 3 S.C.R.
548,  Babulal Parata v. State of Maharashtra, [1961]  S.C.R.
423, Cox v. Louisiana, 13 L. Ed. 21, 471, Hagua v. C.I.O. 83
L. Ed. 1423, Blackwell's Law of Meetings (9th Edn. P.  5)
and Dicey's Law of the Constitution (10th Ed.) p.p.  271-72,
referred to,
(Per  K. K. Mathew J.): (1) What s. 33 (1) (O)	provides  is
making of rules	 for regulating' the conduct and  behaviour,
or  action  of persons constituting  assemblies.   The	sub-
section	 presupposes, an assembly and authorises the  making
of  rules for 'regulating' the conduct, behaviour or  action
of the persons who arc members thereof.	 A power to regulate
implies	 the  continued	 existence of that which  is  to  be
regulated.  The power normally doe,, not include a power  to
prohibit.  The juxtaposition, of the words 'regulating'	 and
'prohibiting'  in s. 33 (1) (x) and the express rant  of  a
power to prohibit to the rule making authority in s. 33	 (1)
(p)  and (q) indicate that the context in which r. 7  occurs
shows  that a power to prohibit is not contemplated  by	 the
power  to regulate.  But r. 7 impliedly gives power  to	 the
Commissioner of Police to refuse permission to hold a public
meeting.   Therefore,  r. 7 is ultra vires s.  33  (1)	(0).
[285B-E, F-H]
Toronto	 v. Virgo [1896] A.C. 88, Ontario v.  Canada  [1896]
A.C.  348 and Birmingam and Midland Motor Motor Omnibus	 Co.
Ltd. v. Worcestershire County Council, [1967] 1 W.L.R.	409,
referred to.
(2)Also	 the  right  to hold public meeting  in	 a  public
street	is  a  fundamental right and r. 7,  which  gives  an
unguided discretion dependent on the subjective whim of	 the
authority  to  grant or refuse permission to,  hold  such  a
meeting, cannot be held to be valid. [293E]
Freedom of assembly is an essential element of a  democratic
system.	 The basic assumption in a democratic polity is that
Government shall
268
based  on the consent of the governed.	But the	 consent  of
the governed implies not only that the consent shall be free
but  also that it shall be grounded on adequate	 information
and  discussion.   At  the root of  this  concept  lies	 the
citizens  right	 to meet face to face with  others  for	 the
,discussion of their ideas and problems, and public  streets
are  the  'natural'  places for expression  of	opinion	 and
dissemination of ideas. [291E-H]
Public procession are prima facie legal but a public meeting
is  not	 one  of  the uses  for	 which	highways  have	been
dedicated.  Public meeting in open places and public streets
form'&	part of the tradition of our national life.  In	 the
pro-Independence  days such meetings have been held in	open
spaces and public streets and the people have come to regard
it as a part of the privileges and immunities.	The  framers
of  the	 Constitution were aware that public  meetings	were
being  held in public streets and that the public have	come
to  regard  it as part of their. rights	 and  privileges  as
citizens,  perhaps erroneously, but this error was  grounded
on the solid substratum of continued practice over the years
and communist error farit jus.	In the U.S. also the  basis
of'  a	citizens  privilege to use  streets  and  parks	 for
communication of views, was the continued de facto  exercise
of the right over a number of years, and fundamental  rights
in  India  of free speech and assembly are modelled  on	 the
Bill  of  Rights of the U.S. Constitution.   But  a.  public
meeting	 will be a nuisance if it appreciably obstructs	 the
road.	The real problem is reconciling the city's  function
of  providing for the. exigencies of traffic in its  streets
and for the recreation of the public in its parks, with	 its
other  obligations of providing adequate places	 for  public
discussion  in	order to safeguard the guaranteed  right  of
public	assembly.   The state and local authorities  have  a
virtual.  monopoly of every open space at which	 an  outdoor
meeting	 can be held, and they can close the street-,,	,and
park,,	entirely  to public meetings, the  practical  result
would  be that it would be impossible to hold  any  open-air
meetings  in  any  large  city.	 and  the  conferment  of  a
fundamental  right of public assembly would then  become  an
exercise in futility. [290A-C-; 292A-H]
However,  the power of the appropriate authority--to  impose
reasonable  regulations, in order to assure the	 safety	 and
convenience of the people in the use of public highways	 has
never  been  regarded as inconsistent with  the	 fundamental
right  of  assembly.  A system of licensing as	regards	 the
time  and  the manner of holding public meetings  on  public
streets	 will  not  be regarded as  an	abridgement  of	 the
fundamental  right of public assembly or of free  speech  if
definite standards are provided by the law for the  guidance
of  the	 licensing  authority.	But 'in r. 7,  there  is  no
mention	 of  the  reasons for which  an	 application  for  a
licence	 can be rejected.  The vesting of  such	 unregulated
discretionary power in a licensing authority has a ways been
considered is bad. [293B-D]
Saghir	Ahmad  v'  The State of U.P. and, Others,  [1965]  1
S.C.R.	707,  Ex-parte Laws, [1888] 21 Q.B.D. 191,  Reg.  v.
Cuninghame Craham and Burns, (1886-90) Cox's Cr.  Law Cases,
Vol. 16. 420, [1912] 2 Car s. 674, 677, Gill v., Carson	 and
Nield,	[1917]	2 K.B. 674, 677, De Morgan  v.	Metropolitan
Board  of Works, [1880] 5 Q.B.D, 155, Beatty  v.  Gillhanks.
[1882] 9 Q.B.D. 308 Burden v. Rigler and another (1911) L.R.
I K.B. 377. Harrison v. Duke of Ratland, (1893) 1 Q.B.	142,
Manzur	Hasan  v. Muhammad Zaman 52 I.A.  61,  Chandu  Salan
Patil  v.  Nyahal  Chand A.I.R. 1950 Bom.  192,	 Lowdens  v.
Keaveney, (1903) 2 I.R. 82, Davis v. Messachusetts. 167 U.S.
43  (1097) Hague v., C.I.O. 307,U.S. 496, Kunz v. New  York,
340  U.S.  290 Shuttlesworth v. Birmingham,  394  U.S.	147,
Express	 Newspapers (Private) Ltd. and Another v. The  Union
of India and Others, [1959] S.C.R. 12, Niemotko v. Maryland,
340 U.S. 208, NAACR v.
269
Button,	 371  U.S. 415 (1968), Dicey's Law  of	Constitution
(10th  Ed.) pp. 271-72, Halsbury's Law of England  (Hailsham
Ed.)  Vol.  16	p. 362 Public Meetings	and  Processions  by
Goodhart,  Cambridge Law of Journal (1936-38), Vol.  6,	 171
referred to.
(Per M. H. Beg, J.): (1) In view of the definition of public
street in s. 2(15) of the Bombay Police Act, which is  wider
than the commonly accepted meaning of a 'public street'	 and
the  purposes  for which it is deemed to be  dedicated,	 the
public	can  hold  a meeting at a place	 falling  under	 the
definition   of	 street.   The	term  'public  meeting'	  is
generally used for a gathering of persons who stand or	take
their  seats at a particular place so as to be addressed  by
somebody.  ;Such  a  meeting, if held  on  a  highway,	must
necessarily interfere with the user of the highway by others
who want to use it for the purpose for which the highway  is
dedicated.  If this is so, the Commissioner of Police  could
be  authorised to regulate it in the manner contemplated  by
r.  7,	provided there are  sufficient	safeguards,  against
misuse of such a power. [297C-E; 298E-G]
(2)In  the matter of holding public: meetings on a  public
street	the  law in India is not different from	 the  law  n
England.   There is no separate. right of  'public  meeting'
let  alone  a constitutional fundamental right	attached  to
public	streets	 which	are  dedicated	for  the  particular
purpose	 of.  passing and repassing.  Any recognition  of  a
right to hold a meeting will obviously be inconsistent	with
the  purpose  for  which public streets	 ire  dedicated.   A
meeting held on a highway will not necessarily be  'illegal.
it may be sanctioned by custom or rest on permission; but  a
mere  erroneous	 assumption can never form the	basis  of  a
right  unless buttressed by something stronger.	 It is	also
true  that there is a well recognised right of	taking,	 out
processions on public thoroughfares in India as an  incident
of the well-. understood right of their user by the  public.
But,  the right to take out a procession is  different	from
the  right  to hold a public meeting and the,  former  could
root  be converted and expanded into the latter.  The  right
to hold a public meeting may be linked with or even flow out
of  rights  under Art. 19(1) (a) and (b), yet the  right  to
hold a meeting at a particular. place must rest on the proof
of  user  of that place for the exercise of  a,	 fundamental
right  and, the right to such a user must be established  in
each  particular case quite apart from and independently  of
the fundamental, rights, guaranteed by Art. 19(1).  The	 law
in U.S. as laid down in Hague v. C.I.O. (307 U.S. 496)	also
appears to be that whatever rights can be properly exercised
by  members  of the public on a public thoroughfare  may  be
exercised there but the others could be exercised in a	park
where  a  public  meeting could	 be  held.   Even  otherwise
whatever  may be the law in U.S., there is no authority	 for
the  proposition  that there is an  unconditional  right  of
holding a public meeting at every public place, much less on
a  public  thoroughfare or street in India  as	a  necessary
incident of the. fundamental rights either of free speech or
of assembly. [294D-G; 295B-D297E-H]
Although,  the	right to hold a public meeting at  a  public
place  may not be a fundamental right by itself, yet, it  is
so closely connected with fundamental rights that a power to
regulate  it  should  not be left in a	nebulous  state.  it
should	be hedged round with sufficient	 safeguards  against
its misuse even if it is to be exercised by the Commissioner
of  Police.   But,  r.	7 is so	 worded	 as  to	 enable	 the
Commissioner  to give or refuse permission to hold a  public
meeting	 at  a	place failing within the  definition  of  "a
street"	 without  giving reasons for either a refusal  or  a
permission.  it will, therefore. be possible for him,  under
the  guise  of powers given by this rule.  to  discriminate.
when  the rule does not indicate the circumstances in  which
permission  may be given or refused.  The rule of  law	that
the  Constitution  contemplates	 demands  the  existence  of
adequate means to check posibili-
270
ties of misuse of every kind of power lodged in officials of
the  St-ate.  Therefore, the rule should be struck  down  as
contravening Art. 14, although, if the repercussions on	 the
rights guaranteed by Art. 19(1) (a) and (b) were also  taken
into  account,	it could be struck down as  an	unreasonable
restriction on those rights as well. [298G-H; 299A-G]
Saghir	Ahmmed	v.   State of U.P., A.I.R.  1954  S.C.	720,
Municipal Board, Manglaur v. Shri Mahadeoji Maharaj,  [1965]
2  S.C.R. 242, Lakshmidhar Misra & Ors. v.  Bengalal  A.I.R.
1950  P.C. 56 Halsbury's Laws of England (3rd Ed.) Vol.	 19,
p. 73 Blackwell's Law of Meetings (9th Ed.) p. 5 and Dicey's
Law of Constitution (10th Ed.) pp. 271-72, referred to.



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 152 of
1970.

Appeal by certificate from the judgment and order dated
December 12, 1969 of the Gujarat High Court at Ahmedabad in
Special Criminal Application No. 42 of 1969.
M. K. Ramamurthi, J. Ramamurthy, for the appellant.
B. Sen, P. Ramesh and S. P. Nayar, for the respondents.
The Judgment of Sikri C.J., Ray and Jaganmohan Reddy, JJ.
was delivered by Sikri, C.J. Mathew, and Beg, JJ. delivered
separate opinions.

Sikri, C.J. This appeal by certificate granted by the
Gujarat High Court raises an important question as to the
right of citizens in India to hold public meetings on public
streets, and the restrictions which can be placed on that
right.

On August 30, 1969 the appellant made an application to the
Police Commissioner, Ahmedabad, for permission to hold a
public meeting near Panch Kuva Darwaja, Ahmedabad, on Sep-
tember 4, 1969 at 8.00 p.m. in connection with the All India
students’ strike sponsored by All India Students Federation,
to be organised on September 5, 1969.

On September 2, 1969, this permission was refused because
the “application was not sent 5 days before the day of the
meeting as required by notification of the Commissioner of
Police, No. 982/66 dated February 15, 1966. “The appellant
was also informed that “holding a meeting with or without
loudspeaker, without the permission, amounts to an offence.”
On August 30, 1969 the appellant had also applied for per-
mission to hold another public meeting on September 5, 1969.
The Deputy Police Commissioner informed him on September 2.
1969, that the permission “cannot be granted inasmuch as a
meeting was held on 7-8–69 under a similar permission
whereafter certain elements had indulged in rioteering and
caused mischief to private and public properties, regarding
which a crime
271
also has been registered”. He was also informed that “in
view of the present position, it is not possible to grant
such permission in order to maintain law and order.” He was
further asked to note that “holding meeting with or without
a loudspeaker without permission amounts to an offence.”
The appellant thereupon filed a petition under Art. 226 of
the Constitution, on September 3, 1969, praying inter alia.

(1) to quash the orders mentioned above;
(2) to declare s.33(o) read with s.33(y) of
the Bombay Police Act (hereinafter called the
Act) void;

(3) to declare the rules Nos. 7 to 11, 14

and 15 of the Rules for Processions and Public
Meetings hereinafter called the Rules) void;
and
(4) to declare that the petitioner was
entitled to hold public meetings on September
4, 1969 and September 5, 1969 without
obtaining permission from the respondent.
By the time the case was heard, the two impugned orders had
become infructuous by lapse of time. The High Court,
however. examined the other contentions raised before it
because it felt that the organization, of which the
appellant was an office bearer, had to organise meetings on
a number of occasions and every time the question of
applying for permission would arise.
The relevant statutory provisions that applied to Ahmedabad
are as follows :

Bombay Police Act, 1951
“33(1) The Commissioner and the District
Magistrate, in areas under their respective
charges or any part thereof, may make, alter
or rescind rules or orders not inconsistent
with this Act for;

(n)licensing, controlling or, in order to
prevent the obstruction, inconvenience,
annoyance, risk, danger or damage of the
residents or passengers in the vicinity,
prohibiting the playing of music, the beating
of drums, tom-toms or other instruments and
blowing or sounding of horns or other noisy
instruments in or near streets or public
places;

(o)regulating the conduct of and behaviour
or action of persons constituting assemblies
and processions on or along the streets and
prescribing in the case of processions. the
routes by which, the order in which and the
times at which the same may pass;

* * * * * *
272
(y)prescribing the procedure in accordance
with which any licence or permission sought to
be obtained or required under this Act should
be applied for and fixing the fees to be
charged for any such licence or permission.”
In exercise of the powers, conferred by Clauses (n), (o)
and. (y) of sub-section (1) of Section 33 of the Bombay
Police Act, 1951 (Bom. Act XXII of 1951) read with Section
4 of the Bombay State Commissioners of Police Act of 1959
(Bom. Act LVI of 1959), the Commissioner of Police,
Ahmedabad City, with the previous sanction of the Government
of Gujarat, made the following rules for conduct, behaviour
and action of persons desirous of conducting processions or
holding or convening public meetings in the areas covered by
the Commissionerate of Police, Ahmedabad City. Rules (1) to
(6) deal with processions. Rule (6) may be reproduced.

“6. Subject to the, provisions of the
foregoing rules and subject to the imposition
of such conditions as may be deemed necessary,
a permission shall be granted, unless the
officer concerned is of opinion that the pro-
cession proposed to be organised or taken out
shall be prohibited, in which case he shall
forth with refer the application together with
his report thereon for the orders of the
Commissioner of Police, Ahmedabad City.
No permission shall be required for a bonafide
religious or marriage procession consisting of
less than 100 or a funeral procession of a
person who has died a natural death.”

Rules (7) to (13) deal with holding of public meetings.
Rule (14) and Rule (15) apply to both processions and public
meeting. Rules (7), (8), (9), (11) and (14) are reproduced
below. Rule (15) makes the infringment of rules and
conditions punishable.

.lm15
” (7). No public meeting with or without loudspeaker,
shall be- held on the public street within the jurisdiction
of the Commissionerate of the Police, Ahmedabad City unless
the necessary permission in writing has been obtained from
the officer authorised by the Commissioner of Police.
(8). The, application for permission shall be made in
writing and shall be signed by the persons who intend to
organise or promote such a meeting.

2 7 3
(9). The application shall be made to the officer
authorised to issue permission not less than 5 days before
the time, at which the public meeting is to start.
(11). The applicant or his representative shall remain
present during the Public Meeting with the permission
granted to him and shall produce the same for inspection by
any Police Officer whenever required.
(14). The organiser or organisers of the procession or
the public meeting shall on demand furnish a security of
such amount as fixed by the Commissioner of Police or any
officer authorised by the Commissioner of police in this
behalf, for the due observance of the conditions of the
permission.”

Before the High Court, it was urged on behalf of the appel-
lant as follows :

” (1). Sub-clause (o) of section 3 3 ( 1 ) of the Bombay
Police Act does not empower the Commissioner of Police to
frame rules requiring any person to obtain prior permission
for holding a meeting and the rule so framed is in excess of
the rule making power and is Consequently invalid.
(2)Sub-clause (0) of Section 33(1) of the Bombay Police
Act suffers from the vice of excessive delegation of
legislative powers, and is ultra vires Article 14 in that it
confers uncontrolled, naked and arbitrary powers on the
Commissioner of Police to grant or refuse permission at his
sweet will and pleasure without laying down any guiding
principles.

(3)Sub-clause (o) of section 33(1) and the Rules framed
thereunder are ultra vires Articles 19(1) (a) and 1 9 (11)

(b) inasmuch as they put a total ban on the fundamental
rights of freedom of speech and freedom to assemble
peaceably; and even if it be held that the rules put
restriction on the exercise of the said fundamental rights,
the same are unreasonable.”

The High Court held, regarding the first ground, that the
word ‘regulating’ “implies prohibition and, therefore, the
rule providing for prior permission which may enable the
commissioner of Police to prohibit a meeting from taking
place would fall within the ambit of clause (o). The
provision contained in clause (y) would not abridge the
meaning of the word ‘regulating’ in clause (o).”
19-L348Sup C.I./73
274
The second contention was repelled by the High Court on the
ground that “a detailed examination of the various
provisions of the Act clearly indicates the policy
underlying the Act and provides clear guidance to the
officers who have to exercise powers of framing Rules
conferred onthem.” The High Court observed that “it
cannot besaid that clause (o) confers naked, uncontrolled
and arbitrary powers on the Commissioner of Police to grant
or refuse permission at his sweet will and pleasure.”
Regarding the third ground it was held that the Rules im-
posed reasonable restrictions and were covered by Art.
19(2).

The learned counsel for the appellant submitted before us
the following propositions :-

(1) Rules 7, 13. 14 and 15 promulgated by the Commissioner
of Police on October 21, 1965 are ultra vires section 33
(1) (o) of the Bombay Police Act, 1951, as in force in
Gujarat, inasmuch has the said provisions do not
authorise framing of rules requiring the prior permission
for holding meetings.

(2)Section 33 (1) (o) of the Act is unconstitutional as it
infringes Art. 19(1) (a) and (b). The restrictions are wide
enough to cover restrictions both within and without the
limit of permissible legislative action affecting such
rights.

(3)In any event the section and the. rules impose
unreasonable restrictions on the fundamental right
guaranteed to the appellants under Art. 19(1) (a) & (b)
because

(a) the ambit of power conferred on the
Executive is very large and uncontrolled;

(b) such power is open to be exercised
arbitrarily.

(c) the restrictions imposed are excessive;

(d) the procedure and manner of imposition
are not fair and just;

(e) there are no sufficient safeguards
against the misuse of power conferred and
there is no right of representation;

(f) the section and the rules suffer from
vagueness:

(g) the restrictions are not narrowly drawn
to prevent the supposed evil and do not
satisfy the touchstone for legislation dealing
with basic freedom, namely, precision;

(h) in delegating powers to the Executive to
impose restrictions the legislature has not
provided adequate standards to pass scrutiny
by accepted tests.

275

(4) The, impugned section And rules violate Art.14 as they
enable the authorities to discriminate between persons
without just classification.

(5)Section 33(1)(o) suffers from the vice of excessive
delegation of legislative powers and is therefore void.
Coming to the first point raised by the learned counsel, it
seems to us that the word ‘regulating In s. 33(0) would
include the power to prescribed that permission in writing
should be taken a few days before the holding of a meeting
on a public street. Under s. 35(o) In(.) rule could be
prescribed prohibiting all meetings or processions. The
section proceeds on the basis that the public has ‘a right
to hold assemblies and processions on and along streets
though it is necessary to regulate the conduct and behaviour
or action of persons constituting such assemblies or
processions in order to safeguard the rights of citizens and
in order to preserve public order. The word ‘regulate’.
according to Shorter Oxford Dictionary, means, “to control,
govern, or direct by rule or regulations to subject to
guidance or restrictions”.

The impugned Rules do not prohibit the holding of meetings
but only prescribe that permission should be taken although
it is not stated on what grounds permission could be
refused. We shall deal with this aspect a little later.
It was urged before us that according to the Common Law of
England no one has a right to hold a meeting on a highway
and the same law prevails in India and, therefore, we should
read the word “regulating” to mean a right to prohibit the
holding of a meeting also. ‘Reference was made to Halsbury,
Third Edition, volume 19, where it is stated that “the right
of the public is a right to pass along a highway for the
purpose of legitimate travel, not to be on it except so far
as their presence is attributed to a reasonable and proper
use of the highway as such. (page 73. para 107).
On page 276 it is stated that “the right of passage does not
include the right torace upon the highway, and to do so
is an indictable nuisance,nor is there any right to organise
or take part in a processionor meeting which naturally
results in an obstruction and is an unreasonable user of the
highway.” In the footnote it is stated that “the right of
the public on the highway is ‘a right of passage in a
reasonable manner and there is no right to hold meetings in
the highway.”

Reference was also made to Blackwell’s Law of Meetings (9th
edn. p. 5), wherein it is stated as follows :-

“There appears to exist a view that the public
has a right to hold meetings for political and
other purposes
276
on the highway. This is an erroneous
assumption. A public highway exists for the
purpose of free, passage and free passage
only, and for purposes reasonably incidental
to this right. There can be no claim on the
part of persons who desire to assemble for the
purpose of holding a meeting to do so on the
highway. The claim is irreconcilable with the
purpose for which a highway exists.”
It is further stated at p. 6 as follows
“Although there is no right on the part of the
public to bold meetings on a highway, a
meeting is not necessarily unlawful because it
is held on a highway. Thus, it has been held
that a meeting on a public highway may be a
lawful meeting within s. 1( 1) of the Public
Meeting Act 1908. Whether or not it is
unlawful depends upon the circumstances in
which it is held, e.g., whether or not an
obstruction is caused. But the only clear
right of the public on the highway is the
right to pass and repass over it, although
many other things go by tolerance.”

We may mention that Dicey took a slightly different
position. According to Dicey’os Law of the Constitution
(Tenth Edition) pages 271-72
“The right of assembling is nothing more than
a result of the view taken by the courts as to
individual liberty of person and individual
liberty of speech. There is no special law
allowing A, B and C to meet together either in
the open air or elsewhere for a lawful
purpose, but the right of A to go where he
pleases so that he does not commit a trespass,
and to say what he likes to 13 so that his
talk is not libellous or seditious, the right
of B to do the like, and the existence of the same
rights of C, D, E and F, and so on ad
infinitum, lead to the consequence that A, B,
C, D and a thousand or ten thousand other
persons, may (as a general rule) meet together
in any place where otherwise they each have a
right to be for a lawful purpose and in a
lawful manner. A has a right to walk down the
High Street or to go on to a common. B has
the same right. C, D and all their friends
have the same right to go there also. In
other words. A, B, C and D and ten thousand
such, have a right to hold a public meeting;
and as A may say to B that he thinks an Act
ought to be passed abolishing the House of
Lords, or that the House of Lords are bound to
reject any bill modifying the Consti-
27 7
tution of their House, and as B may make the
same remark to. any of his friends, the result
ensues that A and ten thousand more may hold a
public meeting either to support the
Government or to encourage the resistance of
the Peers. Here then you have in substance
that right of public meeting for political and
other purposes which is constantly treated in
foreign countries as a special privilege to be
exercised only subject to careful
restrictions”.

It is not necessary to refer to the English authorities on
the point because in India the law has developed on
slightly different lines, especially with regard to
processions, and the Statutes of the country have treated
the right to take out processions and hold meetings on
streets in a similar fashion.

In Parthasaradiayyangar v. Chinnakrishna Ayyangar(1) it was
held that persons were “entitled to conduct religious
processions through public streets so that they do not
interfere with the ordinary use of such streets by the
public and subject to such directions as the Magistrates’
may lawfully give to prevent obstruction of the thoroughfare
or breaches of the public peace.” Reference was made in this
judgment (p. 306) to an earlier decision where the Sadar
Court, in Appeal 141 of 1857 (M.S.D. 1857, p. 219) had
declared that “the right to pass in procession through the
public streets of a town in such a way as the Magistrate
might not object to as dangerous to the public safety, was a
right inherent in every subject of the state.”
In Sundram Chetti v. The Queen(2), after referring to
certain orders of the Government and judicial opinion, the
Court observed :

” Both acknowledged the existence in every
citizen of the right to use a public highway
for processional as well as for ordinary
purpose,%. Both recognised in the
Magistrate a power to suspend and regulate,
and in the police a power to regulate the
exercise of the right.”

In Sadagopacharior v. A. Rama Rao(3), the head-note reads
“The right to conduct religious processions
through the public streets is a right
inherent in every person, provided he does
not, thereby, invade the rights of
(1) I.L.R. (1882) 5 Mad. 304; 309. (2) I.L.R. (1883) 6 Mad.
203; 215,219. (3) T.L.R. (1903) 26 Mad. 376.

278

property enjoyed by others, or cause a public
nuisance or interfere, with the ordinary use
of the streets by the public, and subject to
directions or prohibitions for the prevention
of obstructions to thoroughfares or breaches
(if the peace.”

In Vijiaraghav’a Chariar v. Emperior(l) there was a
difference of opinion. Benson, J., observed at page 585
“No doubt a highway is primarily intended for
the use of individuals passing and re-passing
along it in pursuit of their ordinary
avocations, but in every country, and
especially in India, highways have, from time
immemorial, been used for the passing and re-
passing of processions as well as ‘of
individuals and there is nothing illegal in a
procession or assembly engaging in worship
while passing along a highway, an more than in
an individual doing so.”

Benson, J. further observed at p. 587, as follows :

“The practice of using the public
highways for religious processions has existed
in India for thousands of years. History,
literature and tradition all tell us that
religious processions to the village shrines
formed a feature of the national life from the
very earliest times. That atone is sufficient
to raise a presumption that it is lawful and
to throw on those who allege it to be unlawful
the onus of showing that it is forbidden by
law, but this it admittedly is not. The law
recognizes the use of the highway by
processions as lawful: and gives the
Magistrate and superior officers of police
power to direct the conduct of assemblies and
processions through the public streets and to
regulate the use of music in connection with
them, and to prevent obstructions on the
occasion of such assemblies and proces-
sions…… The law recognises religious
processions as lawful just as much as it
recognizes other processions…….. It is
more reasonable to suppose that he would
dedicate the highway to the purposes for
which, in accordance with the custom of the
country, it would he required by the people.
The penal law of India extends a special
protection against voluntary disturbances to
all assemblies lawfully engaged in religious
worship. A procession is but an assembly in
motion and if it is, a religious procession.,
it is, in my judgment,
(1) I.L.R. (1903) 26 mad. 554.

279

entitled to the special protection given by
the Penal Code assemblies lawfully engaged in
religious worship.”

We have referred to these cases in detail because they were
approved of by the Privy Council in Manzur Hasan v. Muhammed
Zaman(l). In that case the Privy Council held :

“In India, there is a right to conduct a
religious procession with its appropriate
observances through a public street so that it
does not interfere with the ordinary use of
the street by the public, and subject to
lawful directions by the magistrates. A civil
suit for a declaration lies against those who
interfere with a religious procession or its
appropriate observance.”

In Chandu Sajan Patil v. Nvahalehand(2) the Full Bench held
that a citizen had an inherent right to conduct a
nonreligious procession through a public road.
This Court followed the decision of the Privy Council in
Shaikh Piru Bux v. Kalandi Pati (3 ). It is true these
decisions primarily deal with processions but the statutes
of the country, notably the Police Acts, deal with
assemblies and processions on the same basis, and as pointed
out by Benson, J., a procession is but an assembly in
motion.

This Court considered the question of the right of citizens
to carry on motor transport business on highways in Saghir
Ahmmad v. State of U.P.(4). The following passage from
the judgment of Venkatarama Ayyar J., in C.S.S. Motor
Service v. State Madras(5) was approved :

“The true position then is, that all public
streets and roads vest in the State, but that
the State holds them as trustees on behalf of
the public. The members of the public are
entitled as beneficiaries to use them as a
matter of right and this right is limited only
by the similar rights possessed by every other
citizen to use the pathways. The State as
trustees on behalf of the public is entitled
to impose all such limitations on the
character and extent of the user, as may be
requisite for protecting the rights of the
public generally; …. but subject to such
limitations the right of a citizen to carry on
business in transport vehicles on public
pathways can not be denied to him on the
ground that the State owns the highways.”

(1) 52 I.A. 61 (2) A.I.R. 1950 Bom. 192.
(3) Civil Appeal No. 25 of 1966; Judgment dated October 29,
1968).

(4) [1955] 1 S.C.R. 707, (5) [1952] 2 M.L, J. 894
of
280
We are unable to appreciate how this passage militates
against the contentions of the appellant. The Court was not
then concerned ‘with the use of public streets for
processions or meetings.

It seems to us that it follows from the above discussion
that in India a citizen had, before the Constitution, a
right to hold meetings on public streets subject to the
control of the appropriate authority regarding the time and
place of the meeting and subject to considerations of public
order. Therefore, we are unable to hold that the impugned
rules are ultra vires s. 3 3 (1) of the Bombay Police Act
insofar as they require prior permission for holding
meetings.

This takes us to points, (2) and (3) mentioned above. It is
not surprising that the Constitution-makers conferred a
fundamental right on all citizens ‘to assemble peaceably and
without arms’. While prior to the coming into force of the
Constitution the right to assemble could have been abridged
or taken away by law, now that cannot be done except by
imposing reasonable restrictions within Art. 19(3). But it
is urged that the right to assemble does not mean that that
right can be exercised at any and every place. This Court
held in Railway, Board v. Narinjan Singh(1) that there is no
fundamental right for any one to hold meetings in government
premises. It was observed
“The fact that the citizens of this country
have freedom of speech, freedom to assemble
peaceably and freedom to form associations or
unions does not mean that they can exercise
those freedoms in whatever place they please.”
This is true but nevertheless 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 Matharashtra 2
rightly observed :

“The right of citizens to take out processions
or to hold public meetings flows from the
right in Art. 19(1) (b) to assemble peaceably
and without arms and the right to move
anywhere in the territory of India.”

(1) [1969] 3 C.R 548, 554.

(2) [1961] 3 S.C.R. 423; 438.

281

If the right to hold public meetings flows from Art. 19 (1)
(b and Art. 19 (1) (d) it is obvious that the State cannot
impose unreasonable restrictions. It must be, kept in mind
that Art. 19(1)(b), read with Art. 13, protects citizens
against State action. It has nothing to do with the right
to assemble on private streets or property without the
consent of the owners or occupiers of the private property.
This leads us to consider whether s. 3 3 (1) (o) of the Act
and the rules violate Art. 19(1) (b). We do not think Art.
19(1) (a) is attracted on the facts of the case.
We cannot appreciate how s. 33(1)(o) violates Art. 19(1)

(b). It enables the Commissioner to make rules to regulate
the assemblies and processions. Without such rules, in
crowdedpublic streets it would be impossible for citizens
to enjoy their various rights. Indeed s. 33(1)(o) may be
said to have beenenacted in aid of the rights under Art.
19(1) (a) and 19(1)(d).

We may mention that the sub-section has nothing to do with
the formation of assemblies and processions. It deals with
persons ,is members of the assemblies and processions.
The real point in this case is whether the impugned rules
violate Art. 19(1)(b). Rule 7 does not give any guidance to
the officer authorised by the Commissioner of Police as to
the circumstances in which he can refuse permission to hold
a public meeting. Prima facie, to give an arbitrary
discretion to an officer is an unreasonable restriction. It
was urged that the Marginal Note of s. 33-power to make
rules for regulation of traffic and for preservation of
order in public place, etc.-will guide the officer. It is
doubtful whether a marginal note can be used for this
purpose, for we cannot imagine the officer referring to the
marginal note of the section and then deciding that his
discretion is limited, specially as the marginal note ends
with ‘etcetera’. It is also too much to expect him to look
at the scheme of the Act and decide that his discretion is
limited.

We may in this connection refer to Cox v. Louisians(l).
After starting that “from all evidence before us it appears
that the authorities in Baton Rouge, permit or prohibit
parades or street meetings in their completely uncontrolled
discretion” it was observed
“This Court has recognized that the lodging of
such broad discretion in a public official
allows him to determine which expressions of
view will be permitted and which will not.
This thus sanctions a device for the
(1) 13 L.Ed. 2d.471; 486 paras 15,16,17.

282

suppression of the communication of ideas and
permits the official to act as a censor. See
Saia v. New York, supra, 334 US at 562, 92 Led
at 1578. Also inherent in such a system
allowing parades or meetings only with the
prior permission of an official is the obvious
danger to the right of a person of group not
to be denied equal protection of the laws.
See Niemotko v. Maryland, supra, 340 US at
272, 284, 95 Led at 270, 277; cf Yick Wo. v.
Hopkins, 118 US 356, 30 L ed 220, 6 S Ct 1064.
It is clearly unconstitutional to enable a
public official to determine which expressions
of view will be permitted and which will not
or to engage in invidious discrimination among
persons or groups either by use of a statute
providing a system of broad discretionary
licensing power or, as in this case, the
equivalent of such a system by selective
enforcement of an extremely broad
prohibitory statute.”

	      "It is, of course,       undisputed	that
	      appropriate, limit-

ed discretion, under properly drawn statutes
or ordinances, concerning the time, place,
duration, of manner of use of the streets for
public assemblies may be vested in
administrative officials, provided that such
limited discretion is “exercised with
‘uniformity of method of treatment upon the
facts of each application, free from improper
or inappropriate considerations and from un-
fair discrimination’. . . and with a
systematic, consistent and just order
of treatment, with reference to the
convenience of public use of the
highways…….. Cox v. New Hampshire, supra,
312 US at 576, 85 L ed-at 105, 133 ALR 1396.
See Poulos v. New Hampshire, supra.

“But here it is clear that the practice in
Baton Rouge allowing unfettered discretion in
local officials in the regulation of the use
of the streets for peaceful parades and
meetings is an unwarranted abridgment of
appellant’s freedom of speech and assembly
secured to him by the First Amendment, as
applied to the States by the Fourteenth
Amendment.”

These extracts clearly bring out the dangers of conferring
arbitrary discretionary powers.

We may make it clear that there is nothing wrong in requir-
ing previous permission to be obtained before holding a
public meeting on a public street, for the right which flows
from Art.

283

19 (1) (b) is not a right to hold a meeting at any place and
time. It is a right which can be regulated in the interest
of all so that all can enjoy the right.

In our view rule 7 confers arbitrary powers on the officer
authorised by the Commissioner of Police and must be struck
down. The other Rules cannot survive because they merely
lay down the procedure for obtaining permission but it is
not necessary to strike them down for without Rule 7 they
cannot operate. Rule 14 and Rule 15 deal both with
processions and public meetings. Nothing we have said
affects the validity of these two rules as, far as
processions are concerned.

In view of this conclusion it is not necessary to decide the
other points raised by the learned counsel for the
appellants.

A number of other American cases were referred to in the
course of arguments but we do not find it useful to refer to
an of them in detail. It is, however, interesting to note
that in the United States of America the right to use
streets and parks And public places “has from ancient time
been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication
of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order;
but it must not, in the guise of regulation, be abridged or
denied.” (vide Roberts, J., in Hague v. C.I.O. (83 L. Ed.
1423 at 1436-37)]. This passage was cited with approval in
Shuttlesworth v. Birmingham (22 L. Ed. 2.nd, 162 at 168).
In the result we set aside the judgment of the High Court,
allow the appeal and declare that r. 7 of the Rules framed
by Commissioner of Police, Ahmedabad, is void as it
infringes Art. 19(1)(b) of the Constitution. We need hardly
say that it will be open to the Commissioner of Police,
Ahmedabad, to frame a proper rule or rules.
MATHEW, J. I agree with the conclusion of my Lord the chief
Justice but my reasons for that conclusion are different.
The appellant filed an application tinder Art. 226 of the
Constitution in the High Court of Gujarat at Ahmedabad,
praying for a declaration that orders contained in
Annexures, A and ‘B’ to that application, by which the
Deputy Commissioner of Police Special Branch Ahmmadabad the
2nd respondent refused to grant permission to the appellant
to hold public meetings near Panch Kuva Darwaja on the 4th
and 5th September 1969, were invalid and that rules 7 to 11,
14 and 15 framed under s.3(1)
284
of the Bombay Police Act, 1951, as applied to Saurashtra
area in Gujarat which prescribe the requirement of prior
permission and the method of applying for the same, etc.,
were ultra vires the sub-section and violative of his
fundamental right under Art. 19(1) (a) and (b). The Court
found that the principal prayer in the application, namely,
the challenge to the validity of the two orders, had become
infructuous by lapse of time as the dates on which the
intended meetings were to be held had long since passed but
considered the question whether rules 7 to 11, 14 and 15
were intra vires section 33(1) and whether they would
violate the fundamental rights of the applicant under Art.
19(1) (a) and (b) of the Constitution. The Court dismissed
the application holding that the rules were intra vires the
sub-section under which they were framed and that they did
not violate the fundamental rights of the petitioner under
Art. 19 (1) (a) or (b) This appeal is by certificate from
that judgment.

Section 33(1)(o) of the Bombay Police Act, 1951, provides
“33(1) The Commissioner and the District
Magistrate, in areas under their respective
charges or any part thereof, may make, alter
or rescind rules or orders not inconsistent
with this Act for;

xx xx xx xx xx xx xx xx xx xx

(o) regulating the conduct of and behaviour
or action of persons constituting assemblies
and processions on or along the streets and
prescribing in the case of processions, the
routes by which, the order in which and the
times at which the same may pass;”

Rule 7 of the Rules framed by the Commissioner
of Police under s. 33 (1) (o) provides :
“7. No public meeting with or without loud-
speaker, shall be held on the public street
within the jurisdiction of the Commissionerate
of Police, Ahmedabad City unless the necessary
permission in writing has been obtained from
the, officer authorised by the Commissioner of
Police.”

The appellant submitted that S. 33(1)(o) did not empower the
Commissioner or the District Magistrate to frame a rule
requiring a person to obtain prior permission for conducting
a public meeting on a public street, as such a rule would
imply that the Commissioner or the District Magistrate has
power to refuse permission for. holding such a meeting as a
power to permit
28 5
normally implies a power not to permit and so, the rule is
bad. (It was under rule 7 that the Commissioner refused
permission to hold meetings on the 4th and 5th September,
1969).

What the sub-section provides is making of rules for
‘regulating’ the conduct and behaviour, or action of persons
constituting assemblies. The sub-section presupposes an
assembly and authorises the making of rule for regulating
the conduct, behaviour or action of the persons who are
members thereof. Rule 7 impliedly gives power to the
Commissioner to refuse permission to hold a public meeting
and, when a meeting is prohibited, there is no question of
regulating the conduct, behaviour or action of persons
constituting assembly, as, ex-hypothesi, no assembly has
been constituted. The sub-section does not authorise
framing of rules to regulate the conduct, behaviour or
action or persons before an assembly is constituted. Before
an assembly is constituted, every member of the public is a
potential member of it, because every such member, if he so
choose. right become a member of the assembly. Does, then,
the sub-section authorise the making of rules to regulate
the conduct, behaviour or action of every such member,
before he becomes a member of the assembly ? I think not.
A power to “regulate’ does not normally include a power to
prohibit (see Toronto v. Virao(l), Ontario v. Canada(2). A
power to regulate implies the continued existence of that
which is to be regulated (see Birmingham and Midland Motor
Omnibus Col. Ltd. v. Worcestershire County Council(). If
rule I authorises the Commissioner to prohibit a public
meeting, is it consistent with the sub-section which
authorizes only “regulating the conduct.,. . . ” ? When the
Legislature wanted to give the rule making authority a power
to frame rules prohibiting an activity, it has taken care to
do so by the appropriate word . For instance, sub-section

(p) of s. 33(1) speaks of “prohibiting the hanging or
placing of any cord or pole across a street. . . . “,
subsection (q) of s. 33 (1) relates to “prohibiting the
placing of building materials in any street”. In these
sub-sections, the word ‘prohibit’ is used to show that the
rule making authority has power to pass a rule prohibiting
the activities therein mentioned. Similarly sub-section (x)
of s. 3 3 (1) provides for “regulating or prohibiting the
sale of any ticket The juxtaposition of these words is a
further indication to show that the legislature intended
different connotations to the words. I am not saying that a
power to regulate can never include a power to prohibit.
But the context here does not compel such
(1) [1896] A.C. 88.

(2) [1896] A.C. 348.

(3) [1967] 1 W.L.H. 409.

286

a reading. Rule 7 is, therefore, ultra vires the sub-
section. Even if the rule is ultra vires the sub-section
the appellant will not be entitled to hold public meetings
on the street in question unless the appellant has the right
in law to do so. It was, therefore, argued on behalf of the
appellant that every citizen has the fundamental right to
hold public meetings on a public street.
The respondents, however, submitted that, in India, the law
is, that there is no right, let alone a fundamental one, to
hold public meeting on public street. In Saghir Ahmmad v.
The State of U.P. and others(1), this Court said :

“According to English law, which has been
applied all along in India, a highway has its
origin, apart from statute,, in dedication,
either express or implied, by the owner of the
land of a right of passage over it to the
public and the acceptance of that right by the
public”.

The only right acquired by the public is a right to pass and
repass it at their pleasure for the purpose of legitimate
travel. Ex-parte Lewis(2), Wills, J. speaking for- the Court
said
“A claim on the part of persons so minded to
assemble in any numbers, and for so long a
time as they please to remain assembled, upon
a highway, to the detriment of others having
equal right, is in its nature irreconcilable
with the, right of free passage, and there is,
so far as we have been able to ascertain, no
authority whatever in favour of it. It was
urged that the right of public meeting, and
the right of occupying any unoccupied land or
highway that might seem appropriate to those
of her Majesty’s subjects who wish to meet
there, were, if not synonymous, at least
correlative. We fail to appreciate the
argument.”

In Reg. v. Omninghame Graham and Burns(:) the Commissioner
of Police, in the exercise of his powers vested in him under
the Metropolitan Police Act, 1839, issued an order that “no
organised procession shall be allowed to approach the
Trafalgar Square on Sunday the 13th instant”. It was argued
that he had no power to forbid an orderly meeting. But
Charles, J. in charging the jury said :

“I can find no warrant for telling you that
there is a right of public meeting either in
Trafalgar Square or any other public
thoroughfare. So far as I know the law of
England, the use of public thoroughfares is
for people to pass and repass along them.

That is the
(1) [1965] 1 S.C.R. 707, 715. (2) (1888) Law Reports 21
Q.B.D. 191
(3) (1886-90) Cox’s Criminal Law Cases. Vol. 16, 420,29-

30.
287
purpose for which they are, as we say,
dedicated by the owner of them to the use of
the public and they are not dedicated to the
public use for any other purpose that I know
of than for the purpose of passing and re-
passing;”

A meeting held on a highway, although it might be a
trespass. against the Authority in which the highway is
vested is not,, on that ground, wrongful against the members
of the public. As far as they are concerned the meeting is
a wrong only if it is a nuisance. As the public are
entitled to the unobstructed use of the highway for passing
and repassing, any meeting which appreciably obstructs the
highway would seem to constitute such a nuisance. The test
is whether it “renders the way less commodious than before
to the public”. The fact that sufficient alternative
passage space is left is no defence. “It is no defence to
show that…… though a part of the highway actually used
by the passengers is obstructed, sufficient available space
is left.” (1) Moreover, it is not necessary to prove that
any one has been obstructed; the placing of obstructions on
a public road or street in a manner calculated to create an
obstruction to traffic is an offence although no person or
carriage may have been actually obstructed. In Gill v.
Carson and IV Nield(2) Viscount Reading, C.J. said
“In my judgment it is not necessary to prove
that a person has been actually obstructed, it
is quite sufficient to prove circumstances
from which the justices can conclude that in
the ordinary course persons may be obstructed,
and that the actual use of the road was cal-
culated to obstruct even though no person was
proved to have been obstructed.”

Applying these rules to the special facts of a public
meeting in the highway, it would appear that such a meeting,
however reasonable and desirable its purposes may be, is a
nuisance if it causes any appreciable obstruction, and that
it is not necessary to prove that in fact, any one has been
prevented from passing. In De Morgan v. Metropolitan Board
of Works(3) it was held that although there is a widespread
belief that the general public has a right to hold meeting
on a common, no such right was known to the law. When it
was argued that such meetings were always permitted, Lush.
J. is reported to have said that “such uses did not
constitute a right or prove anything more than an excused or
licensed trespass”. It may be stated, therefore. that if
every unlicensed public meeting is a trespass, as against a
person
(1) Halsburly, Hailsham ed., Vol. xvi, p. 355
(2) [1917] 2 K.B. 674, 677.

(3) [1880] 5 Q.B.D. 155, 157.

288

or body of persons in whom the surface of the highway is
vested, then this obviously may limit the so called right of
public meeting to the ‘Vanishing point.
Dicey in his Law of the Constitution(1) has observed’:

“A has a right to walk down the High Street or
to go on to a common. B has the same right.

C, D and all their friends have the same right
to go there also. In other words, A, B, C and
D, and ten thousand such, have’ a right to
hold a public meeting; is
It might not follow that because A, B, C. D, etc., have a
right to walk down the High Street, they have a legal
right to hold a public meeting. Beatty v. Gillbanks(2)
which dicey cites as the leading case on the law of public
meeting was not directly concerned with this question as the
appellants there who were leading a procession through the
street intended to hold their meeting on private premises.
Dicey has himself pointed out in the Appendix to the eighth
edition of the book as follows : (3)
“Does there exist any general right of meeting
in public places? The answer is easy. No
such right is known to the law of England.
“…… But speaking in general terms the
Courts do not recognise certain spaces as set
aside for that end. In this respect, again, a
crowd of a thousand people stand in the same
position as an individual person. If A wants
to deliver a lecture, to make a speech, or to
exhibit a show, he must obtain some room or
field which he can legally use for his
purpose. He must not invade the rights of
property-i.e., commit a trespass. He must not
interfere with the convenience of the public-
i.e., create a nuisance.

“The notion that there is such a thing as a
right of meeting in public places arises from
more than one confusion or erroneous
assumption. The, right of public meeting-that
is, the right of all men to come together in a
place where they may lawfully assemble for any
lawful purpose, and especially for political
discussion-is confounded with the totally
different and falsely alleged right of every
man to use for the purpose of holding a
meeting any place which in any sense is open
to the public. The two rights, did they both
exist, are essentially different, and in many
countries are
(1) A.V. Dicey, Law of the Constitution, 10th ed., 271-272.
(2) [1882] 9 Q.B.D. 308.

(3) Appenx to Law of the Constitution 8th ed, Note’ V on
Question connected with th.- right of public meeting”, pp.
498-499.

289

regulated by totally different rules. It is
assumed again that squares, streets, or roads,
which every man may lawfully use, are
necessarily available for the holding of a
meeting. The assumption is false. A crowd
blocking up a highway will probably be a
nuisance in the legal, no less than in the
popular sense of the term, for they interfere
with the ordinary citizen’s right to use the
locality in the, way permitted to him’ by law.
Highways, indeed, are dedicated to the public
use, but they must, be used for passing and
going along them, and the legal mode of use
negatives the claim of politicians to use a
highway as a forum, just as it excludes. the
claim of actors to turn it into an open air
theatre.The crowd who collect, and the persons
who cause a crowd, for whatever purpose, to
collect in a street, create a
nuisance……….

In Burden v. Rigle’r and another(1), the evidence showed
that the urban authority. had tacitly licensed the meeting
and so it was not a trespass as against them., No evidence
was also adduced that the meeting caused any appreciable
obstruction on the highway and so there was no proof of any
nuisance. The Court held that the fact that a public
meeting is held upon a highway does not make the meeting
unlawful whether it is unlawful or not depends upon the
circumstances in which it is held e.g., whether or not an
obstruction is caused, The Court further, held that even
though there is no right to hold a meeting on a highway,
i.e., no absolute legal right, it does not necessarily
follow that, if a meeting is held, it may not be lawful.
And after referring to the decision-in Ex-parte Lewis(2)
already referred to, the Court said that the convenors of a
meeting cannot, under all circumstances, insist on holding a
meeting.

In Harrison v. Duke of Rutland(3), Lord Esher M. Observed:

“Highways are no doubt dedicated prima facie
for the purpose of passage; but things are
done upon them by everybody which are
recognised as being rightly done, and as
constituting a reasonable and usual mode of
using a highway as such.”

In Halsbury’s Laws of England(4), it is said , that. it is a
nuisance organise ‘or take part in a procession or meeting
which naturally results in an obstruction and is. an
unreasonable use of the highway
(1) [1911] L.R. 1 K.B.337
(2) [1965] 1 S.C.R. 707. 715.

(3) [1893] Q.B. 142, C.A. at 146
(4) Hailssham Edition , Vol xvi, p. 362 ” Highway”.

290

Public processions are prima facie legal. If A, B and C
have each a right to pass and repass on the highway, there
is nothing illegal in their doing so in concert, unless the
procession is illegal on some other ground (see Manzur Hasan
v. Muhammed Zaman(l) and Chandu Sajan Patil v.
Nyshalchand(2). “As ‘the public interest is paramount, it
is sometimes suggested that, on the analogy of a public
meeting, any procession which causes an appreciable
obstruction to the highway must be a public nuisance. This,
however, is not so. As a public meeting is not one of the
uses for which the highway has been dedicated,-it is a
nuisance if it appreciably obstructs the road. It is no
defence to show that sufficient available space is left if a
part of the highway actually used by passengers is
obstructed. But, and this is most important, in the case of
a procession, the test is whether in all the circumstances
such a procession is a reasonable user of the highway, and
not merely whether it causes an obstruction. Thus to take
an obvious illustration, the temporary crowding in a street
occasioned by people going to a circus or leaving it is not
a nuisance, for if such a temporary obstruction were not
permitted then no popular show, could ever be held” (see
Goodhart, Public Meetings and Processions(3). The
distinction between the use of a highway to hold a public
meeting and the use of it to conduct procession thereon is
pointed out by the author and he takes the view that no
person has a right to use a highway for holding public
meeting even though no nuisance is created. According to
him, under the law, a person can use a highway for the
purpose for which it has been dedicated i.e., to pass and
repass and any other unlicensed use, however desirable it
may be from other standpoints, is legally wrongful.
In Lowdens v. Keaveney(4), Gibson, J. said that a procession
is prima facie legal and that it differs from “the
collection of a stationary crowd” but that a procession may
become a nuisance if the right is exercised unreasonably or
with reckless disregard of the rights of others.
Justice Holmes, while he was Chief Justice of the Massa-

chusetts Supreme Court said
“For the legislature absolutely or
conditionally to forbid public speaking in a
highway or public park is no more an
infringement of the rights of a member of the
public than for the owner of a private house
to forbid it in his house. When no
Proprietary rights interfere, the legislature
may and the right of the public
(1) 52 T.A. 61.

(3) Cambridge Law Journal (1936-38), 6, 171.
(2) A.I.R. 1950 Bom. 192.

(4) (1903) 2 I.R. 82.

291

.lm15
to enter upon the public place by putting an end to the
dedication to public use. So it may take the less step of
limiting the public use to certain purposes.”
This dictum was quoted and approved by the U. S. Supreme
Court Davis v. Massachusetts(1). But later decisions of the
U.S. Supreme Court have politely distinguished the case. In
Hague v. C.I.O.(2), Justice Roberts, speaking for the
majority, said
“Wherever the title of streets and parks may
rest, they have immemorially been held in
trust for the use of the public and time out
of mind, have been used for purposes of
assembly, communicating thoughts between
citizens, and discussing public questions.
Such use of the streets and public places has,
from ancient times, been a part of the
privileges, immunities, rights and liberties
of citizens. The privilege of a citizen of
the United States to use the streets and parks
for communication of views on national
questions may be regulated in the interest of
all; it is not absolute but relative, and must
be exercised in subordination to the general
comfort and convenience and in consonance with
peace and good order; but it must not, in the
guise of regulation, be abridged or denied.”
This dictum has been followed in Kunz v. New York (3
Shuttlesworth v. Birmingham (4 ).

Freedom of assembly is an essential element of any demo-
cratic system. At the root of this concept lies the
citizens’ right to meet face to face with others for the
discussion of their ideas and problems-religious,
political,, economic or social. Public debate and
discussion take many forms including the spoken and the
printed word, the radio and the screen. But assemblies face
to face perform a function of vital significance in our
system, and are no less important at the present time for
the education of the public and the formation of opinion
than they have been in our past history. The basic
assumption in a democratic polity is that Government shall
be based on the consent of the governed. But the consent of
the governed implies not only that the consent shall be free
but also that it shall be grounded on adequate information
and discussion. Public streets are the ‘natural’ places for
expression of opinion and dissemination of ideas. Indeed it
may be argued that for some persons these places are the
only possible arenas for the effective exercise of their
freedom of speech and assembly.

(1) U.S. 43 (1897).

(2) 307 U.S. 496, 515-516.

(3) 340 U.S. 490.

(4) 394 U.S. 147, 152.

292

Public meeting in open spaces and public streets forms part
of the tradition of our national life. In the pre-
Independence days such meetings have been held in open
spaces and public streets and the people have come to regard
it as a part of their privileges and immunities. The State
and the local authority have a virtual monopoly of every
open space at which an outdoor meeting can be held. If,
therefore., the State or Municipality can constitutionally
close both its streets and its parks entirely to public
meetings, the practical result would be that it would be
impossible to hold any open air meetings in any large city.
The real problem is that of reconciling the city’s function
of providing for the exigencies of traffic in its streets
and for the recreation of the public in its parks’ with its
other obligations, of providing adequate places for public
discussion in order to safeguard the guaranteed right of
public Assembly. The assumption made by Justice Holmes is
that a city owns its parks and highways in the same sense
and with the same rights a private owner owns his property
with the right to exclude or admit anyone he pleases. That
may not accord with the concept of dedication of public
streets and parks. The parks are held for public and the
public streets are also held for the public. It is
doubtless true that the State or local authority can
regulate its property in order to serve its public purposes.
Streets and public parks exist primarily for other purposes
and the social interest promoted by untrammeled exercise of
freedom of utterance and assembly in public street must
yield to social interest which prohibition and regulation of
speech are designed to protect. But there is a
constitutional difference between reasonable regulation and
arbitrary exclusion.

The framers of the Constitution were aware that public
meetings were being held in public streets and that the
public have come to regard it as part of their rights and
privileges as citizens. It is doubtful whether, under the
common law of the land, they have any such right or
privilege but, nobody can deny the de facto exercise of the
right in the belief that such a right existed. Common error
facit jus (common error makes the law). This error was
grounded on the solid substratum of continued practice,.
over the years. The conferment of a fundamental right of
public assembly would have been an exercise in utility, if
the Government and the local authorities could legally close
all the normal places, where alone, the vast majority of the
people could exercise the right. Our fundamental rights of
free speech and assembly are modelled on the Bill of Rights
of the Constitution of the U.S.A [ see Express Newspapers
(Private) Ltd. and Another v. The Union of India and
others(1)]
(1) [1959] S.C.R 12, 121.

293

would be relevant then to look to the ambit and reach of
those rights in the United States to determinE their content
and range in India. On closer analysis, it will be found
that the basis of Justice Roberts’ Dictum in Hague v.
C.I.O.(1) is the continued de facto exercise of the right
over a number of years. I think the same reasoning can be
applied here.

The power of the appropriate authority to impose reasonable
regulation in order to assure the, safety and convenience of
the people in the use of public highways has never been
regarded as inconsistent with the fundamental right of
assembly. A system of licensing as regards the time and the
manner of holding public meetings on public street has not
been regarded as an abridgement of the fundamental right of
public assembly or of free speech. But a system of
licensing public meeting will be upheld by Courts only if
definite. standards are provided by the law for the guidance
of the licensing authority. Vesting of unregulated
discretionary power in a licensing authority has always been
considered as bad [see the cases on the point discussed in
the concurring opinion of Justice Frankfurter in Niemotko v.
MarylaNd(2)].

If there is a fundamental right to hold public meeting in a
public street, then I need hardly say that a rule like Rule
7, which gives an unguided discretion, practically dependent
upon the subjective whim of an authority to grant or refuse
permission to hold a public meeting on public street, cannot
be held to be valid. There is no mention in the rule of the
reasons for which an application for licence can be
rejected. “Broad prophylactic rules in the area of free
expression and assembly are suspect. Precision of
regulation must be the touch stone in an area so closely
touching our precious freedoms” [see NAACP v. Button(3).
I would allow the appeal.

BEG, J. I have had the advantage of reading the judgments of
Mylord the Chief Justice and my learned brother Mathew. I
would like to indicate why, despite my difficulties, I
conclude that Rule 7 of the rules made under Section 33(0)
of the Bom bay Police Act, 1961 (hereinafter referred to as
‘the Act’), is void. The difficulties I refer to arise
mainly from two considerations : firstly, it is abundantly
clear that there is no separate right of “public meeting”,
let alone a constitutional fundamental right so described,
and, in any case, there, is no such right attached to public
streets which are dedicated for the particular purpose of
passing and repassing with which any recognition of a right
to hold a meeting on a public thoroughfare will obviously be
in-

(1) 307 U.S. 496. (2) 340 US. 268
(3) 371 US. 415. 438 (1963)
294
consistent; and, secondly, although Rule 7 apparently gives
a wide discretionary power to give, or to refuse permission
to hold a meeting on a “public street”, so that it is
capable of being misused or so used as to enable
unjustifiable discrimination, yet, it is possible to find
some guidance, as the High Court of Gujarat found, in the
preamble as well as in Section 33 (0) of the Act.
Therefore, it may be possible to rely here, as the High
Court had done, upon the presumption that even the appar
ently wide discretionary powers vested by Rule 7 in
the Commissioner of Police, a highly responsible police
officer, will not be abused. It is certainly arguable with
some force that the power of the High Court; (to strike down
an improper exercise is a sufficient safeguard against its
misuse so that it may not be necessary to strike down Rule 7
at all. Furthermore, in (the case before us, a good enough
reason was given by the Commissioner to justify a refusal.
We are, however, also concerned with the validity of Rule 7
which may be relied upon for future refusals or grants of
permission which will, it is urged, effect the petitioner’s
rights.

There is doubt that a “public street”, as it is commonly
understood, is really dedicated for the use of the public
for the purpose of passing, and repassing on it and not for
any other purpose. In this respect, it appears to me that
the law in this country, as laid down by this Court in
Saghir Ahmad v. State of U.P.(1) and the Municipal. Board,
Manglaur v. Sri Mahadeoji Maharaj(2), is not different from
the Law in England found stated in Halsbury’s Laws of
England (3) , as follows :

“The right of the public is a right to ‘pass
along’ a highway for the purpose of legitimate
travel, not to ‘be on’ it, except so far as
their presence is attributable to a reasonable
and proper user of the highway as such”.

A right to use a public highway for the purpose of carrying
on transport business or other forms of trade such as
hawking, or, to take out a procession through it, is really
incidental to a reasonable user of the highway by the,-
public. It would be fully covered by the purpose for which
the public road is deemed to be dedicated. But. as regards
the supposed right to hold a “Public meeting” on a highway,
it appears to me that the following observations from
Blackwell’s “Law of Meetings” (9th Edn..p. 5), could apply
equally well here :

“There appears to exist a view that the public
has a right to hold meetings for political and
other purposes on the highway. This is an
erroneous assumption.

(1) Alit 1954 S.C. 720. (2) [1965] S.C.R. p. 242.
(3) Halsbury’s Laws of England ‘Third Edn. Vol, 19, p. 73.

295

A public highway exists for the purpose of
free passage only, and for purposes reasonably
incidental to this right. There can be no
claim on the part of persons who desire to
assembly for the purpose of holding a meeting
to do so on the highway. The claim is ir-
reconcilable with the purpose for which a
highway exists”.

I do not find it possible to accept the view that a merely
erroneous assumption can ever form the basis of a right
unless buttressed by something stronger.
No doubt a meeting held on a highway will not necessarily be
illegal. It may be sanctioned by custom or rest on permis-
sion, from an authority prescribed by statute, to put a
particular part of the public highway to an exceptional and
extraordinary user for a limited duration even though such
user may be inconsistent with the real purpose for which the
highway exists. The right has, however, to be shown to
exist or have a legal basis, in every case in which a claim
for its exercise is made, with reference to the particular
part of the highway involved.

The Privy Council pointed out, in Lakshmidhar Misra & Ors.
v. Bangalal & Ors.(1), the right to user of a particular
piece of land for a particular purpose, such as holding a
fair, may be part of the customary law of locality. Thus, a
customary right to use a highway for special purposes
sometimes may exist provided the ingredients of such a right
are established although the customary right may not be
consistent with the purpose for which the highway is
dedicated. Proof of such a customary right attaching to a
particular part of a highway must, however, be a matter of
evidence in every case. It seems clear to me that we are
not concerned with such rights as they were not set up
anywhere in the case be-fore us, and, even if such a right
had been set up, it could only be adjudicated upon
satisfactorily in a civil suit.

No doubt Dicey’s Law of the Constitution (10th Edn. p. 271-

272) contains a passage which deals with the right of a
subject to pass. through a highway and to proceed to “a
common” together with others in procession and to hold a
public meeting, for political or other purposes without
obtaining the prior permission of any authority to exercise
such a right. I am, however, unable to read into this
passage the further right of holding a public meeting on a
highway or public street. It seems to me that what is
referred to there is only the right to pass through
(1) AIR 1950 P.C. p. 56
296
a public thoroughfare in order to proceed to and hold a
meeting on “a common”. There may be a right of using “a
common” for the purpose of holding public meetings by
custom.

In the Appendix to Dicey’s “Law of the Constitution(), the
position under the English law is stated very clearly as
follows
“Does there exist any general right of meeting
in public places” The answer is easy. No such
right is known to the Law of England.

“…….. But speaking in general terms the
courts do not recognise certain spaces as set
aside for that end. In this respect, again, a
crowd of a thousand people stand in the same
position as an individual person. If A wants
to deliver a lecture, to make a speech, or to
exhibit a show, he must obtain some room or
field which he can legally use for his
purpose. He must not invade the rights of
property-i.e. commit a trespass. He must not
interfere with the convenience of the public-
i.e. create a nuisance.

“The notion that there is such a thing as a
right of meeting in public places arises from
more than one confusion or erroneous
assumption. The right of public meeting-that
is, the right of all men to come together in a
place where they may lawfully assemble for any
lawful purpose, and especially for political
discussion-is confounded with the totally
different and falsely alleged right of every
man to use for the purpose of holding a
meeting any place which in any sense is open
to the public. The two rights, did they both
exist, are essentially different, and in many
countries are regulated by totally different
rules. It is assumed again that squares,
streets, or roads, which every man may
lawfully use, are necessarily available for
the holding of a meeting. The assumption is
false. A crowd blocking up a highway will
probably be a nuisance in the legal, no less
than in the popular sense of the term, for
they interfere with the ordinary citizen’s
right to use the locality in the way permitted
to him by law. Highways, indeed are dedicated
to the public use, but they must be used for
passing and going along them, and the legal
mode of use negatives the claim of politicians
to use a highway as a forum, just a,-, it
excludes the claim of actors to turn it
(1) Dicey’s Law of the Constitution-“8th Edn. Note V on
Questions connected with the right of public meeting”, p.
498-499,
297
.lm15
into an open-air theatre. The crowd who collect, and the
persons who cause a crowd, for whatever purpose, to collect
in a street, create a nuisance……

Dicey does deal with a “right of public meeting” as though
it was an outcome of a right of assembly. But, he assumes
that an assembly, which is stationary, as distinct from one
which is moving, must be held at a place where there is
otherwise a right to hold such an assembly constituting a
“public meeting”. If the term “meeting” signified the mere
meeting of one citizen with another it could be said that
such a meeting of many citizens on a particular portion of a
public highway is included within reasonable user of the
public highway for the purpose for which it was dedicated so
long as it does not interfere unreasonably with similar
rights of others. The term “public meeting”, however, is
generally used for a gathering of persons who stand or take
their seats at a particular place so as to be addressed by
somebody who is heard by or expresses the feelings of the
persons assembled. If the term “meeting” were really
confined to what may be called a moving assembly or
procession a right to hold it could be comprehended within
the right to take out a procession which should, it seems to
me, be distinguished from what is commonly understood as a
right to hold a public meeting. Such a meeting, if held on
a highway, must necessarily interfere with the user of the
highway by others who want to use it for the purpose for
which the highway must be deemed to be dedicated.
It is true that there is a well recognised right of taking
out processions on public thoroughfares in this country as
an incident of the well understood right of their user by
the public. But, I find it very difficult to proceed
further and to hold that such a right could be extended and
converted into a right to hold a public meeting on a
thoroughfares The right to hold a public meeting may be
linked with or even flow out of rights under Article
19(1)(a) to express one’s opinions and 19(1)(b) to assemble
peaceably and without arms, just as the right to take out
processions or moving assemblies may spring from or he
inextricably connected with these rights, yet, inasmuch as
the right to hold a meeting at a particular place must rest
on the proof of user of that place for the exercise of a
fundamental right, it appears to me that the right to such a
user must be established in each particular case quite apart
from or independently of fundamental rights guaranteed by
Article 19(1) of our Constitution. it involves something
more than the exercise of a fundamental right although that
something more may be necessary for and connected with the
exercise of a fundamental right
298
In Hague v. C.I.O.(1), Roberts, J. no doubt spoke of the
general right of the public in America to use “streets and
parks …. for purposes of assembly, communicating thoughts
between citizens, and discussing public questions”. But, I
do not find here a recognition of a right to hold a, public
meeting on a public thoroughfare. The passage relied upon
by the learned Counsel for the appellant from this case
referred to rights which could be exercised in “streets and
parks”. A natural interpretation of this passage appears to
me to be that whatever rights can be properly exercised by
members of the public on a public thoroughfare may be
exercised ,there but the others could be exercised in a park
where a public meeting could be held. Whatever may be the
law in America, we have not been shown any authority for the
proposition that there is an unconditional right of holding
a public meeting at every public place, much less on a
public thoroughfare or street in this country, as a
necessary incident of the fundamental rights of either free
speech or of assembly.

If the position rested me.-rely on the commonly accepted
meaning of a “public street” and the purposes for which it
must be deemed to be dedicated it may have been possible to
argue that Rule 7 itself goes beyond the scope of the rule
making power given by Section 3 3 ( 0) inasmuch as a
stationary assembly, as a public meeting must necessarily be
so long as the assembly last, could not reasonably be within
the purview of Sec. 33(O) of the Act. But, the definition
of the public street in Section 2, sub. s. 15 of the Act
lays down :

2(15) “Street” includes any highway, bridge,
way over a causeway, viaduct, arch, quay or
wharf or any road, lane, footway, square,
court, alley or passage accessible to the
public, whether a thoroughfare or not”.

If we bear this definition in mind, it would appear that the
public could conceivably hold a meeting at a place falling
under this definition of a street. If this is so, could the
Commissioner not be authorised to regulate it in the manner
contemplated by Rule 7 ? I think he could, provided there
are sufficient safeguards against misuse of such a power.
Rule 7 is so worded as to enable the Commissioner to give or
refuse permission to hold a public meeting at a place
falling within the definition of “a Street” without the
necessity of giving reasons for either a refusal or a
permission. It will, therefore, be possible for him, under
the guise of powers given by this rule, to discriminate. If
he chooses to give no reasons either for giving the
permission or for refusing it, it will not be possible
(1) 307 U.S. 496, 515-516.

299

for a High Court or this Court to decide, without holding a
trial and taking evidence, what those reasons really are in
a particular case. Such a wide power my even enable an
exceptional user of a public thoroughfare, completely
inconsistent with the rights of the public to pass or
repass, to be made of it without sufficient justification
for it. The Commissioner may give permission to use a place
for a public meeting on a public street, which may not be
suitable for it, to influential or powerful persons but deny
it to others. Although, the right to hold a public meeting
at a public place may not be a Fundamental Right by itself,
yet, it is so closely connected with fundamental rights that
a power to regulate it should not be left in a nebulous
state. It should be hedged’ round with sufficient
safeguards against its misuse even if it is to be exercised
by the Commissioner of Police. He ought to be required to
give reasons to show why he refuses or gives the permission
for such exceptional user of a “street” as it is defined in
the Act. The rule should make clear the circumstances in
which the permission may be given or refused. Therefore,
although I have had my serious doubts as to whether we need
declare Rule 7 invalid for a contravention of Art. 19 ( 1 )

(b) , of the Constitution, yet, on fuller consideration, I
respectfully concur with Mylord the Chief Justice in
declaring it invalid because it is capable of being used
arbitrarily so as to discriminate unreasonably and
unjustiably and thus to affect the exercise of rights
conferred by Articles 19(1) (a) and (b) without sufficient
means ‘of control over possible misuse of power. The Rule
of law our Constitution contemplates demands the existence
of adequate means to check possibilities of misuse of every
kind of power lodged in officials of the State. I would
prefer to ‘strike it down for contravening Article 14 of the
Constitution although, if its’ repercussions on the rights
guaranteed by Art, 19(1)(a) and (b) were also taken into
account, it could be struck down as an unreasonable
restriction on those rights as well.

For the reasons given above, I respectfully agree with the
order proposed by Mylord the Chief Justice.
V.P.S.

2-L498 Sup CI/73
300