JUDGMENT
Y.K. Sabharwal, J.
(1) Mr. A.U. Azmi is an ex-member of Parliament and resident of Abul Fazal Enclave, New Delhi. He has come to this court claiming that he is filing this petition for the sake of peace and communal harmony in the country.
(2) Mr. Madan Lal Khurana, respondent No.4, is a Member of Parliament belonging to the Bhartiya Janata Party. Respondents 5 to 8 are stated to be the office bearers of the said political party.
(3) MR.AZMI says that posters and pamphlets issued by the Bhartiya Janata Party show that Mr.Madan Lal Khurana is organising a rally of several thousand members of the B.J.P.who may march from Hans Raj Sethi Park, Kalkaji to Okhla Zone. The rally and the march is scheduled for Thursday the 21st January 1993. According to the petitioner if the respondent are not restrained from holding the rally there would be imminent apprehension of breach of peace and danger of communal disturbance. Respondent No.1. is the Lt.Governor. Respondent No.2 is the Commissioner of Police and respondent No.3 is the Deputy Commissioner of Police, South District. The petitioner has sought directions against the police authorities to restrain the holding and organising of the rally on 21st January 1993. According to the petitioner as the proposed rally is bound to disturb tranquility and, peace and as the police authorities are duty bound to prevent the holding of any kind of communal rally which may create and inflame communal passions leading to breach of peace, a writ of mandamus be issued against the respondents 2 and 3 to restrain respondents 4 to 8 forthwith from organising the proposed rally from Kalkaji to Okhla. Further prayer in the petition is that respondents 2 and 3. should be directed to take legal action against respondents 4 to 8 preventing them from organising any kind of rallies in any part of the Union Territory of Delhi which may disturb the peace.
(4) In answer to the show cause issued by this court, respondents have put in appearance through their counsel. Mr.P.S.Sharma has filed in court today the order dated 19th January 1993 issued by the Commissioner of Police in exercise of powers conferred upon him by Section 144, Criminal Procedure Code prohibiting the holding of any public meeting, assembly of five or more persons, carrying of fire arms, banners, placards, lathies, spears, swords, sticks, brickbats, shouting of slogans, making of speeches, processions and demonstrations and pickets or dharnas in any public place without a written permission. The areas of the operation of Section 144, Criminal Procedure Code, are mentioned in the first paragraph of the said order The areas mentioned are these: “OKHLAVillage, Nai Basti, Canal Colony (U.P. Irrigation Deptt), Abul Fazal Enclave, Okhla Vihar, Noor Nagar & Noor Nagar Extn., Johri Farm, Gaffar Manjil, Battla House, Vill. Joga Bai, Gaffar Nagar, and Mahboob Nagar, Zakir Nagar; Bharat Nagar, Tamur Nagar/ Tamur Nagar, Jhuggies, Khizara Bad, Ashoka Park Road (Behind Abc Block N.F. Cly), Okhla Road (for Jmi from Mathura Road including Nmi University Area), A/B/C Blocks of New Friends Colony, Kalindi Colony, Zakirbad, Vill. Zulena, Sukhdev Vihar, Vill. Jasola, falling within the areas bounded by Bharat Nagar Road from Outer Ring Road up to Village Jolena, Outer Ring Road, Bharat Nagar Road,”T”Point along Outer Ring Road up to Gunda Nullah, along Yamuna River from Gunda Nullah up to Kalindi Kunj, Road No. 13 from Kalindi Kunj up to Mathura Road, “T” Point of Mathura Road and Road No. 13 along Mathura Road to “T’ point Okhla Moar, Okhla Road/Jamia Milia Road up to Chowk Sarai Julena.”
(5) I am constrained to notice that the order is not very happily worded and it does not state that it relates to the areas mentioned above but from the reading of the order as a whole it can be implied that it is intended to be applicable to the areas mentioned above. The order has come into force with effect from 19th January 1993 and states that it shall remain in force for a period of 15 days i.e. up to 2nd February 1993 (both days inclusive) unless withdrawn earlier.
(6) Undoubtedly the right of citizens to take out processions or to hold public meeting are more freely flows from Article 19. The aforesaid right is,however, circumscribed by reasonable restrictions which may be imposed in exercise of power under Article 19 (3) and (5) of the Constitution of India. By issuing the prohibitory order, as noticed above, the holding of rallies, demonstration and procession in the areas mentioned in the prohibitory order have been prohibited. In view of the said order. Mr.Sud, appearing for Mr.Madan Lal Khurana and other respondents belonging to Bhartiya Janata Party has given an undertaking on their behalf that no rally, demonstration or procession will be taken out in the areas. mentioned in the order issued under Section 144; Criminal Procedure Code.
(7) I have no doubt that the police force would do its duty and take all preventive steps to ensure that breach of communal harmony does not take place and the law and order is properly maintained and the violators of prohibitory order are firmly and severely dealt with in accordance with law.
(8) It is further directed that in case respondents 4 to 8 hold proposed demonstration or rally on 21st January 1993 in any area to which the prohibitory order is not applicable the said respondents would ensure that the rally or demonstration does not in any manner create any communal or other disturbance or does not create any law and order problem. In these areas too, the police authorities would be required to act firmly and strictly against the miscreants in accordance with law.
(9) The petition is disposed of in the above terms.
Jaspal Singh, J.
(10) I find myself in the same white sheet as my learned brother and feel honoured to join my own voice with his. However, I am adding a few words of my own, necessitated as they have been, by the provocation, if I may say so, provided by the submission that in the matter like this, the Judges have no role to play.
(11) Gone are the days of a traditional passive judge acting like “a political, economic, and social eunuch, and having no interests in the world outside his court.”** That is a myth.*** Judges are a guarantee of security to the weak against the strong and to the individual against the community. They present a shield against the irresponsibility and irrationality of popular action, whether of opinion or of violence.
(12) Today, when unleashed passion has eaten into the sinews ‘of our life, when the nation is sitting on a volcano of hatred, fundamentalism and fanaticism and the ends as well as the means seem to have both become unholy, we cannot remain ensconced comfortably in our cozy chambers, We live in no ivory towers. We even refuse to. Law, after all, is not a confidence trick. Its majesty must respond and reverberate, more so, when the right to live in peace and with honour and dignity may be in jeopardy. In such a situation we either respond or perish in the esteem of men and our God.
(13) We respond.