{"id":237224,"date":"1972-09-15T00:00:00","date_gmt":"1972-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/himat-lal-k-shah-vs-commissioner-of-police-on-15-september-1972"},"modified":"2015-02-18T04:06:03","modified_gmt":"2015-02-17T22:36:03","slug":"himat-lal-k-shah-vs-commissioner-of-police-on-15-september-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/himat-lal-k-shah-vs-commissioner-of-police-on-15-september-1972","title":{"rendered":"Himat Lal K. Shah vs Commissioner Of Police, … on 15 September, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Himat Lal K. Shah vs Commissioner Of Police, … on 15 September, 1972<\/div>\n
Equivalent citations: 1973 AIR 87, \t\t 1973 SCR (2) 266<\/div>\n
Author: S Sikri<\/div>\n
Bench: Sikri, S.M. (Cj), Ray, A.N., Reddy, P. Jaganmohan, Mathew, Kuttyil Kurien, Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nHIMAT LAL K. SHAH\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF POLICE, AHMEDABAD & ANR.\n\nDATE OF JUDGMENT15\/09\/1972\n\nBENCH:\nSIKRI, S.M. (CJ)\nBENCH:\nSIKRI, S.M. (CJ)\nRAY, A.N.\nREDDY, P. JAGANMOHAN\nMATHEW, KUTTYIL KURIEN\nBEG, M. HAMEEDULLAH\n\nCITATION:\n 1973 AIR   87\t\t  1973 SCR  (2) 266\n 1973 SCC  (1) 227\n CITATOR INFO :\n RF\t    1973 SC 106\t (140)\n D\t    1974 SC1940\t (46)\n RF\t    1975 SC1505\t (2)\n R\t    1989 SC1988\t (31)\n\n\nACT:\nConstitution  of India, 1950, Arts. 19(1) (a), (b) and\t(d)-\nRight of citizens to hold public meetings on public streets-\nIf fundamental right.\nBombay\tPolice\tAct, 1951, s. 33(1) (O) and r.\t7  of  Rules\nframed\t thereunder-Rule  requiring  prior  permission\t for\nholding\t meetings-Rules\t if  ultra  vires  section-Rule,  if\nviolates fundamental rights.\n\n\n\nHEADNOTE:\nThe  appellant\twhose application for permission to  hold  a\npublic meeting on a public street was rejected contended  in\na writ petition in the High Court, (1) that the rules framed\nby  the\t first respondent under s.33(1) (O)  of\t the  Bombay\npolice Act. 1951,  were ultra vires section in that the sub-\nsection does not authorise framing of rules requiring  prior\npermission for holding meetings and (2) that the sub-section\nand  the  rules\t were violative of  the\t fundamental  rights\nguaranteed  under art.19(1) (a)and (b) of the  constitution.\nThe High Court dismissed the petition.\nHELD  : (per Curiam) : Rule 7 of the rules is  void.  [283F;\n293E; 299D]\n(Per   S.  M.Sikri,  C.J.,  A.N.   Ray\tand  P.\t  Jaganmohan\nReddy,JJ):\n(1)The\timpugned rules are not ultra vies s\/33 (1)  in\tso\nfar  as they require prior permission for holding  meetings,\n[280B-C]\nSub-section 33 (1) (0) proceeds on the basis that the public\nhas a right to hold assemblies and take processions on\tand,\nalong  sawn though It is necessary to regulate\tthe  conduct\nand  behaviour\tor  action  of'\t persons  constituting\tsuch\nassemblies  or processions in order to safeguard the  rights\nof citizens and in order to preserve public order.  The word\n'regulate'  would  include  the\t power\tto  prescribe\tthat\npermission in writing should be taken a few days before\t the\nholding of a meeting on a public street.  The impugned rules\ndo  not prohibit the holding of meetings but only  prescribe\nthat permission should be taken. [275B-E]\n(2)(a)\tSection 33(1) (0) does not violate Art.\t 19(1)\t(b),\nand  Art.  19(i) (a) is not attracted to the facts  of\t'the\ncase.  The dub-section has nothing to do with the  formation\nof assemblies and processions but only deals with persons as\nmembers\t of  assemblies\t and  processions.   The  subsection\nenables\t the  Commissioner  to make rules  to  regulate\t the\nassemblies and processions.  Without such rules, in  crowded\npublic streets, it would be impossible for citizens to enjoy\ntheir  various rights.\tIndeed, the section may be  said  to\nhave been enacted in aid of the rights under Art. 19\n(1)  (a) and 19(1) (d). [281B-D]\n(b)It  could not be contended by the 'respondent  that\tas\nunder the Common Law of England no one has a right to hold a\nmeeting\t on a highway, and the same law prevails  in  India.\nand therefore, the word 'regulate' means a right to prohibit\nthe  holding  of  a meeting also.  In  India,  the  law\t has\ndeveloped  on  slightly different lines, and  a\t citizen  in\nIndia had, before the Constitution, a right to hold meetings\non public streets subject to the control of the appropriate\nauthority  regarding the time and place of the meetings\t and\nsubject to considerations of public\n267\norder  While  prior  to\t the  coming into  force  of   the\nConstitution, the right to assemble could have been abridged\nor  taken  away by law, after the coming into force  of\t the\nConstitution,  the  right  cannot  be  abridged\t except\t  by\nimposing reasonable restrictions.  There is nothing wrong in\nrequiring  prior permission to be obtained before holding  a\npublic\tmeeting a public street, for the Tight\twhich  flows\nfrom  Art. 19(1)(b) is not a right to hold a meeting at\t any\nplace and time.\t But, the State can only make regulations in\naid  of the right of assembly of each citizen and  can\tonly\nimpose\treasonable  restrictions in the interest  of  public\norder. in the present case, however, r. 7 does not give\t any\nguidance  to the officer authorised by the  Commissioner  of\nPolice\tas  to\tthe circumstances in  which  he\t can  refuse\npermission to hold a public meeting.  The officer cannot  be\nexpected  to read the marginal note to s. 33 or to  look  at\nthe  scheme of the Act to spell out the limitations  on\t his\ndiscretion.   Therefore, the rule, which  confers  arbitrary\npowers\ton the authorised officer must be struck down.\t The\nother  rules  which  merely  lay  down\tthe  procedure\t for\nobtaining   permission\tcannot\tsurvive,  but,\tit  is\t not\nnecessary  to  strike them down, for, 'without\tr.  7,\tthey\ncannot operate.\t Rule's 14 and 15 deal both with processions\nand  public  meetings  and  their validity,  in\t so  far  as\nprocessions  are concerned, is not affected. [281D-G;  282H;\n283A-C]\nParthasaradiayyangar-  v.  Chinnakrishna  Ayyangar,   I.L.R.\n[1882] 5 Mad. 304, Sundram Chetti v. The Queen I.L.R. [1883]\n6 Mad. 203, Sudagopachariar v. A. Rama Rao, I.L.R. [1903] 26\nMad.  376, Vijiraghava Chariar v. Emperor, I.L.R. [1903]  26\nMad,  554 Hasan v. Muhameed Zaman, 52 J.A. 61, Chandu  Sajan\nPatil v. Nyahalchand, A.I.R. 1950 Bom. 192, Shaikh Piru\t Bux\nv. Kalandi Pati, (Civil Appeal No.<\/a> 25 of 1966 dated  October\n29,  1968,  Saghir Ahmad v. State of U.P.,<\/a> [1955]  1  S.C.R.\n107,  C.S.S.  Motor  Service v. State of  Madras,  [1952]  2\nM.L.J. 894, Railway Board v. Narinjan Singh, [1969] 3 S.C.R.\n548,  Babulal Parata v. State of Maharashtra, [1961]  S.C.R.\n423, Cox v. Louisiana, 13 L. Ed. 21, 471, Hagua v. C.I.O. 83\nL. Ed. 1423, Blackwell's Law of Meetings (9th Edn. P.  5)\nand Dicey's Law of the Constitution (10th Ed.) p.p.  271-72,\nreferred to,\n(Per  K. K. Mathew J.): (1) What s. 33 (1) (O)\tprovides  is\nmaking of rules\t for regulating' the conduct and  behaviour,\nor  action  of persons constituting  assemblies.   The\tsub-\nsection\t presupposes, an assembly and authorises the  making\nof  rules for 'regulating' the conduct, behaviour or  action\nof the persons who arc members thereof.\t A power to regulate\nimplies\t the  continued\t existence of that which  is  to  be\nregulated.  The power normally doe,, not include a power  to\nprohibit.  The juxtaposition, of the words 'regulating'\t and\n'prohibiting'  in s. 33 (1) (x) and the express rant  of  a\npower to prohibit to the rule making authority in s. 33\t (1)\n(p)  and (q) indicate that the context in which r. 7  occurs\nshows  that a power to prohibit is not contemplated  by\t the\npower  to regulate.  But r. 7 impliedly gives power  to\t the\nCommissioner of Police to refuse permission to hold a public\nmeeting.   Therefore,  r. 7 is ultra vires s.  33  (1)\t(0).\n[285B-E, F-H]\nToronto\t v. Virgo [1896] A.C. 88, Ontario v.  Canada  [1896]\nA.C.  348 and Birmingam and Midland Motor Motor Omnibus\t Co.\nLtd. v. Worcestershire County Council, [1967] 1 W.L.R.\t409,\nreferred to.\n(2)Also\t the  right  to hold public meeting  in\t a  public\nstreet\tis  a  fundamental right and r. 7,  which  gives  an\nunguided discretion dependent on the subjective whim of\t the\nauthority  to  grant or refuse permission to,  hold  such  a\nmeeting, cannot be held to be valid. [293E]\nFreedom of assembly is an essential element of a  democratic\nsystem.\t The basic assumption in a democratic polity is that\nGovernment shall\n268\nbased  on the consent of the governed.\tBut the\t consent  of\nthe governed implies not only that the consent shall be free\nbut  also that it shall be grounded on adequate\t information\nand  discussion.   At  the root of  this  concept  lies\t the\ncitizens  right\t to meet face to face with  others  for\t the\n,discussion of their ideas and problems, and public  streets\nare  the  'natural'  places for expression  of\topinion\t and\ndissemination of ideas. [291E-H]\nPublic procession are prima facie legal but a public meeting\nis  not\t one  of  the uses  for\t which\thighways  have\tbeen\ndedicated.  Public meeting in open places and public streets\nform'&\tpart of the tradition of our national life.  In\t the\npro-Independence  days such meetings have been held in\topen\nspaces and public streets and the people have come to regard\nit as a part of the privileges and immunities.\tThe  framers\nof  the\t Constitution were aware that public  meetings\twere\nbeing  held in public streets and that the public have\tcome\nto  regard  it as part of their. rights\t and  privileges  as\ncitizens,  perhaps erroneously, but this error was  grounded\non the solid substratum of continued practice over the years\nand communist error farit jus.\tIn the U.S. also the  basis\nof'  a\tcitizens  privilege to use  streets  and  parks\t for\ncommunication of views, was the continued de facto  exercise\nof the right over a number of years, and fundamental  rights\nin  India  of free speech and assembly are modelled  on\t the\nBill  of  Rights of the U.S. Constitution.   But  a.  public\nmeeting\t will be a nuisance if it appreciably obstructs\t the\nroad.\tThe real problem is reconciling the city's  function\nof  providing for the. exigencies of traffic in its  streets\nand for the recreation of the public in its parks, with\t its\nother  obligations of providing adequate places\t for  public\ndiscussion  in\torder to safeguard the guaranteed  right  of\npublic\tassembly.   The state and local authorities  have  a\nvirtual.  monopoly of every open space at which\t an  outdoor\nmeeting\t can be held, and they can close the street-,,\t,and\npark,,\tentirely  to public meetings, the  practical  result\nwould  be that it would be impossible to hold  any  open-air\nmeetings  in  any  large  city.\t and  the  conferment  of  a\nfundamental  right of public assembly would then  become  an\nexercise in futility. [290A-C-; 292A-H]\nHowever,  the power of the appropriate authority--to  impose\nreasonable  regulations, in order to assure the\t safety\t and\nconvenience of the people in the use of public highways\t has\nnever  been  regarded as inconsistent with  the\t fundamental\nright  of  assembly.  A system of licensing as\tregards\t the\ntime  and  the manner of holding public meetings  on  public\nstreets\t will  not  be regarded as  an\tabridgement  of\t the\nfundamental  right of public assembly or of free  speech  if\ndefinite standards are provided by the law for the  guidance\nof  the\t licensing  authority.\tBut 'in r. 7,  there  is  no\nmention\t of  the  reasons for which  an\t application  for  a\nlicence\t can be rejected.  The vesting of  such\t unregulated\ndiscretionary power in a licensing authority has a ways been\nconsidered is bad. [293B-D]\nSaghir\tAhmad  v'  The State of U.P. and, Others,  [1965]  1\nS.C.R.\t707,  Ex-parte Laws, [1888] 21 Q.B.D. 191,  Reg.  v.\nCuninghame Craham and Burns, (1886-90) Cox's Cr.  Law Cases,\nVol. 16. 420, [1912] 2 Car s. 674, 677, Gill v., Carson\t and\nNield,\t[1917]\t2 K.B. 674, 677, De Morgan  v.\tMetropolitan\nBoard  of Works, [1880] 5 Q.B.D, 155, Beatty  v.  Gillhanks.\n[1882] 9 Q.B.D. 308 Burden v. Rigler and another (1911) L.R.\nI K.B. 377. Harrison v. Duke of Ratland, (1893) 1 Q.B.\t142,\nManzur\tHasan  v. Muhammad Zaman 52 I.A.  61,  Chandu  Salan\nPatil  v.  Nyahal  Chand A.I.R. 1950 Bom.  192,\t Lowdens  v.\nKeaveney, (1903) 2 I.R. 82, Davis v. Messachusetts. 167 U.S.\n43  (1097) Hague v., C.I.O. 307,U.S. 496, Kunz v. New  York,\n340  U.S.  290 Shuttlesworth v. Birmingham,  394  U.S.\t147,\nExpress\t Newspapers (Private) Ltd. and Another v. The  Union\nof India and Others,<\/a> [1959] S.C.R. 12, Niemotko v. Maryland,\n340 U.S. 208, NAACR v.\n269\nButton,\t 371  U.S. 415 (1968), Dicey's Law  of\tConstitution\n(10th  Ed.) pp. 271-72, Halsbury's Law of England  (Hailsham\nEd.)  Vol.  16\tp. 362 Public Meetings\tand  Processions  by\nGoodhart,  Cambridge Law of Journal (1936-38), Vol.  6,\t 171\nreferred to.\n(Per M. H. Beg, J.): (1) In view of the definition of public\nstreet in s. 2(15) of the Bombay Police Act, which is  wider\nthan the commonly accepted meaning of a 'public street'\t and\nthe  purposes  for which it is deemed to be  dedicated,\t the\npublic\tcan  hold  a meeting at a place\t falling  under\t the\ndefinition   of\t street.   The\tterm  'public  meeting'\t  is\ngenerally used for a gathering of persons who stand or\ttake\ntheir  seats at a particular place so as to be addressed  by\nsomebody.  ;Such  a  meeting, if held  on  a  highway,\tmust\nnecessarily interfere with the user of the highway by others\nwho want to use it for the purpose for which the highway  is\ndedicated.  If this is so, the Commissioner of Police  could\nbe  authorised to regulate it in the manner contemplated  by\nr.  7,\tprovided there are  sufficient\tsafeguards,  against\nmisuse of such a power. [297C-E; 298E-G]\n(2)In  the matter of holding public: meetings on a  public\nstreet\tthe  law in India is not different from\t the  law  n\nEngland.   There is no separate. right of  'public  meeting'\nlet  alone  a constitutional fundamental right\tattached  to\npublic\tstreets\t which\tare  dedicated\tfor  the  particular\npurpose\t of.  passing and repassing.  Any recognition  of  a\nright to hold a meeting will obviously be inconsistent\twith\nthe  purpose  for  which public streets\t ire  dedicated.   A\nmeeting held on a highway will not necessarily be  'illegal.\nit may be sanctioned by custom or rest on permission; but  a\nmere  erroneous\t assumption can never form the\tbasis  of  a\nright  unless buttressed by something stronger.\t It is\talso\ntrue  that there is a well recognised right of\ttaking,\t out\nprocessions on public thoroughfares in India as an  incident\nof the well-. understood right of their user by the  public.\nBut,  the right to take out a procession is  different\tfrom\nthe  right  to hold a public meeting and the,  former  could\nroot  be converted and expanded into the latter.  The  right\nto hold a public meeting may be linked with or even flow out\nof  rights  under Art. 19(1) (a) and (b), yet the  right  to\nhold a meeting at a particular. place must rest on the proof\nof  user  of that place for the exercise of  a,\t fundamental\nright  and, the right to such a user must be established  in\neach  particular case quite apart from and independently  of\nthe fundamental, rights, guaranteed by Art. 19(1).  The\t law\nin U.S. as laid down in Hague v. C.I.O. (307 U.S. 496)\talso\nappears to be that whatever rights can be properly exercised\nby  members  of the public on a public thoroughfare  may  be\nexercised there but the others could be exercised in a\tpark\nwhere  a  public  meeting could\t be  held.   Even  otherwise\nwhatever  may be the law in U.S., there is no authority\t for\nthe  proposition  that there is an  unconditional  right  of\nholding a public meeting at every public place, much less on\na  public  thoroughfare or street in India  as\ta  necessary\nincident of the. fundamental rights either of free speech or\nof assembly. [294D-G; 295B-D297E-H]\nAlthough,  the\tright to hold a public meeting at  a  public\nplace  may not be a fundamental right by itself, yet, it  is\nso closely connected with fundamental rights that a power to\nregulate  it  should  not be left in a\tnebulous  state.  it\nshould\tbe hedged round with sufficient\t safeguards  against\nits misuse even if it is to be exercised by the Commissioner\nof  Police.   But,  r.\t7 is so\t worded\t as  to\t enable\t the\nCommissioner  to give or refuse permission to hold a  public\nmeeting\t at  a\tplace failing within the  definition  of  \"a\nstreet\"\t without  giving reasons for either a refusal  or  a\npermission.  it will, therefore. be possible for him,  under\nthe  guise  of powers given by this rule.  to  discriminate.\nwhen  the rule does not indicate the circumstances in  which\npermission  may be given or refused.  The rule of  law\tthat\nthe  Constitution  contemplates\t demands  the  existence  of\nadequate means to check posibili-\n270\nties of misuse of every kind of power lodged in officials of\nthe  St-ate.  Therefore, the rule should be struck  down  as\ncontravening Art. 14, although, if the repercussions on\t the\nrights guaranteed by Art. 19(1) (a) and (b) were also  taken\ninto  account,\tit could be struck down as  an\tunreasonable\nrestriction on those rights as well. [298G-H; 299A-G]\nSaghir\tAhmmed\tv.   State of U.P., A.I.R.  1954  S.C.\t720,\nMunicipal Board, Manglaur v. Shri Mahadeoji Maharaj,<\/a>  [1965]\n2  S.C.R. 242, Lakshmidhar Misra & Ors. v.  Bengalal  A.I.R.\n1950  P.C. 56 Halsbury's Laws of England (3rd Ed.) Vol.\t 19,\np. 73 Blackwell's Law of Meetings (9th Ed.) p. 5 and Dicey's\nLaw of Constitution (10th Ed.) pp. 271-72, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 152 of
\n1970.\n<\/p>\n
Appeal\tby  certificate from the judgment and  order  dated
\nDecember 12, 1969 of the Gujarat High Court at Ahmedabad  in
\nSpecial Criminal Application No. 42 of 1969.
\nM.   K. Ramamurthi, J. Ramamurthy, for the appellant.
\nB.   Sen, P. Ramesh and S. P. Nayar, for the respondents.
\nThe  Judgment of Sikri C.J., Ray and Jaganmohan\t Reddy,\t JJ.
\nwas delivered by Sikri, C.J. Mathew, and Beg, JJ.  delivered
\nseparate opinions.\n<\/p>\n
Sikri,\tC.J.  This  appeal by  certificate  granted  by\t the
\nGujarat\t High Court raises an important question as  to\t the
\nright of citizens in India to hold public meetings on public
\nstreets,  and the restrictions which can be placed  on\tthat
\nright.\n<\/p>\n
On August 30, 1969 the appellant made an application to\t the
\nPolice\tCommissioner,  Ahmedabad, for permission to  hold  a
\npublic\tmeeting near Panch Kuva Darwaja, Ahmedabad, on\tSep-
\ntember 4, 1969 at 8.00 p.m. in connection with the All India
\nstudents’ strike sponsored by All India Students Federation,
\nto be organised on September 5, 1969.\n<\/p>\n
On  September 2, 1969, this permission was  refused  because
\nthe  “application was not sent 5 days before the day of\t the
\nmeeting\t as required by notification of the Commissioner  of
\nPolice, No. 982\/66 dated February 15, 1966.  “The  appellant
\nwas  also informed that “holding a meeting with\t or  without
\nloudspeaker, without the permission, amounts to an offence.”
\nOn  August 30, 1969 the appellant had also applied for\tper-
\nmission to hold another public meeting on September 5, 1969.
\nThe Deputy Police Commissioner informed him on September  2.
\n1969,  that the permission “cannot be granted inasmuch as  a
\nmeeting\t was  held  on 7-8–69 under  a\t similar  permission
\nwhereafter  certain elements had indulged in rioteering\t and
\ncaused mischief to private and public properties,  regarding
\nwhich a crime
\n271<\/span>
\nalso  has been registered”.  He was also informed  that\t “in
\nview  of the present position, it is not possible  to  grant
\nsuch permission in order to maintain law and order.” He\t was
\nfurther asked to note that “holding meeting with or  without
\na loudspeaker without permission amounts to an offence.”
\nThe  appellant thereupon filed a petition under Art. 226  of
\nthe Constitution, on September 3, 1969, praying inter alia.\n<\/p>\n
\t      (1)   to quash the orders mentioned above;
\n\t      (2)   to declare s.33(o) read with s.33(y)  of
\n\t      the Bombay Police Act (hereinafter called\t the
\n\t      Act) void;\n<\/p>\n
\t      (3)   to\tdeclare the rules Nos. 7 to  11,  14<\/span><\/p>\n
\t      and 15 of the Rules for Processions and Public
\n\t      Meetings\thereinafter called the Rules)  void;
\n\t      and
\n\t      (4)   to\tdeclare\t that  the  petitioner\t was
\n\t      entitled to hold public meetings on  September
\n\t      4,   1969\t and  September\t 5,   1969   without
\n\t      obtaining permission from the respondent.
\nBy the time the case was heard, the two impugned orders\t had
\nbecome\tinfructuous  by\t lapse of  time.   The\tHigh  Court,
\nhowever.  examined  the other contentions raised  before  it
\nbecause\t it  felt  that\t the  organization,  of\t which\t the
\nappellant was an office bearer, had to organise meetings  on
\na  number  of  occasions  and every  time  the\tquestion  of
\napplying for permission would arise.
\nThe relevant statutory provisions that applied to  Ahmedabad
\nare as follows :\n<\/p>\n
Bombay Police Act, 1951
\n\t      “33(1)  The  Commissioner\t and  the   District
\n\t      Magistrate,  in areas under  their  respective
\n\t      charges  or any part thereof, may make,  alter
\n\t      or  rescind rules or orders  not\tinconsistent
\n\t      with this Act for;\n<\/p>\n
\t      (n)licensing,  controlling or, in order  to
\n\t      prevent\tthe   obstruction,    inconvenience,
\n\t      annoyance,  risk,\t danger or  damage  of\t the
\n\t      residents\t or  passengers\t in  the   vicinity,
\n\t      prohibiting the playing of music, the  beating
\n\t      of  drums, tom-toms or other  instruments\t and
\n\t      blowing  or sounding of horns or\tother  noisy
\n\t      instruments  in  or  near\t streets  or  public
\n\t      places;\n<\/p>\n
\t      (o)regulating the conduct of and\tbehaviour
\n\t      or  action of persons constituting  assemblies
\n\t      and  processions on or along the\tstreets\t and
\n\t      prescribing  in the case of  processions.\t the
\n\t      routes  by which, the order in which  and\t the
\n\t      times at which the same may pass;\n<\/p>\n
\t      *\t  *    *    *\t*    *
\n\t      272<\/span>
\n\t      (y)prescribing the procedure in  accordance
\n\t      with which any licence or permission sought to
\n\t      be obtained or required under this Act  should
\n\t      be  applied  for\tand fixing the\tfees  to  be
\n\t      charged for any such licence or permission.”
\nIn  exercise  of the powers, conferred by Clauses  (n),\t (o)
\nand.  (y)  of sub-section (1) of Section 33  of\t the  Bombay
\nPolice Act, 1951 (Bom.\tAct XXII of 1951) read with  Section
\n4  of the Bombay State Commissioners of Police Act  of\t1959
\n(Bom.\tAct  LVI  of  1959),  the  Commissioner\t of  Police,
\nAhmedabad City, with the previous sanction of the Government
\nof Gujarat, made the following rules for conduct,  behaviour
\nand action of persons desirous of conducting processions  or
\nholding or convening public meetings in the areas covered by
\nthe Commissionerate of Police, Ahmedabad City.\tRules (1) to
\n(6) deal with processions.  Rule (6) may be reproduced.\n<\/p>\n
\t      “6.   Subject  to\t the,  provisions   of\t the
\n\t      foregoing rules and subject to the  imposition
\n\t      of such conditions as may be deemed necessary,
\n\t      a\t permission  shall be  granted,\t unless\t the
\n\t      officer concerned is of opinion that the\tpro-
\n\t      cession proposed to be organised or taken\t out
\n\t      shall  be prohibited, in which case  he  shall
\n\t      forth with refer the application together with
\n\t      his  report  thereon  for the  orders  of\t the
\n\t      Commissioner of Police, Ahmedabad City.
\n\t      No permission shall be required for a bonafide
\n\t      religious or marriage procession consisting of
\n\t      less  than  100 or a funeral procession  of  a
\n\t      person who has died a natural death.”\n<\/p><\/blockquote>\n
Rules  (7)  to (13) deal with holding  of  public  meetings.
\nRule (14) and Rule (15) apply to both processions and public
\nmeeting.  Rules (7), (8), (9), (11) and (14) are  reproduced
\nbelow.\t Rule  (15)  makes the\tinfringment   of  rules\t and
\nconditions punishable.\n<\/p>\n
.lm15
\n”   (7).   No public meeting with  or  without\tloudspeaker,
\nshall be- held on the public street within the\tjurisdiction
\nof the Commissionerate of the Police, Ahmedabad City  unless
\nthe  necessary permission in writing has been obtained\tfrom
\nthe officer authorised by the Commissioner of Police.
\n(8). The,  application for permission shall be made  in
\nwriting\t and  shall be signed by the persons who  intend  to
\norganise or promote such a meeting.\n<\/p>\n
2 7 3
\n(9). The  application  shall  be made  to  the\tofficer
\nauthorised  to issue permission not less than 5 days  before
\nthe time, at which the public meeting is to start.
\n(11). The  applicant or his representative shall  remain
\npresent\t during\t the  Public  Meeting  with  the  permission
\ngranted to him and shall produce the same for inspection  by
\nany Police Officer whenever required.
\n(14). The  organiser or organisers of the procession  or
\nthe  public  meeting shall on demand furnish a\tsecurity  of
\nsuch  amount as fixed by the Commissioner of Police  or\t any
\nofficer\t authorised  by the Commissioner of police  in\tthis
\nbehalf,\t for  the due observance of the\t conditions  of\t the
\npermission.”\n<\/p>\n
Before the High Court, it was urged on behalf of the  appel-
\nlant as follows :\n<\/p>\n
”  (1).\t Sub-clause (o) of section 3 3 ( 1 ) of\t the  Bombay
\nPolice\tAct does not empower the Commissioner of  Police  to
\nframe rules requiring any person to obtain prior  permission
\nfor holding a meeting and the rule so framed is in excess of
\nthe rule making power and is Consequently invalid.
\n(2)Sub-clause  (0) of Section 33(1) of the  Bombay  Police
\nAct  suffers  from  the\t vice  of  excessive  delegation  of
\nlegislative powers, and is ultra vires Article 14 in that it
\nconfers\t uncontrolled,\tnaked and arbitrary  powers  on\t the
\nCommissioner of Police to grant or refuse permission at\t his
\nsweet  will  and pleasure without laying  down\tany  guiding
\nprinciples.\n<\/p>\n
(3)Sub-clause  (o) of section 33(1) and the  Rules  framed
\nthereunder  are ultra vires Articles 19(1) (a) and 1 9\t(11)\n<\/p>\n
(b)  inasmuch  as they put a total ban\ton  the\t fundamental
\nrights\tof  freedom  of\t speech\t and  freedom  to   assemble
\npeaceably;  and\t even  if  it be held  that  the  rules\t put
\nrestriction on the exercise of the said fundamental  rights,
\nthe same are unreasonable.”\n<\/p>\n
The  High Court held, regarding the first ground,  that\t the
\nword  ‘regulating’ “implies prohibition and, therefore,\t the
\nrule  providing\t for prior permission which may\t enable\t the
\ncommissioner  of  Police to prohibit a meeting\tfrom  taking
\nplace  would  fall  within the ambit  of  clause  (o).\t The
\nprovision  contained  in clause (y) would  not\tabridge\t the
\nmeaning of the word ‘regulating’ in clause (o).”
\n19-L348Sup C.I.\/73
\n274<\/span>
\nThe second contention was repelled by the High Court on\t the
\nground\t that  “a  detailed  examination  of   the   various
\nprovisions   of\t the  Act  clearly  indicates\tthe   policy
\nunderlying  the\t Act  and provides  clear  guidance  to\t the
\nofficers  who  have  to exercise  powers  of  framing  Rules
\nconferred onthem.”  The\t High  Court  observed\tthat  “it
\ncannot besaid  that clause (o) confers naked,  uncontrolled
\nand arbitrary powers on the Commissioner of Police to  grant
\nor refuse permission at his sweet will and pleasure.”
\nRegarding  the third ground it was held that the  Rules\t im-
\nposed  reasonable  restrictions\t and were  covered  by\tArt.
\n19(2).\n<\/p>\n
The  learned counsel for the appellant submitted  before  us
\nthe following propositions :-\n<\/p>\n
(1)  Rules 7, 13. 14 and 15 promulgated by the\tCommissioner
\nof   Police  on October 21, 1965 are ultra vires section  33
\n(1) (o) of     the  Bombay Police Act, 1951, as in force  in
\nGujarat, inasmuch has\t the   said   provisions   do\t not
\nauthorise  framing of rules requiring the  prior  permission
\nfor holding meetings.\n<\/p>\n
(2)Section 33 (1) (o) of the Act is unconstitutional as it
\ninfringes Art. 19(1) (a) and (b).  The restrictions are wide
\nenough\tto  cover restrictions both within and\twithout\t the
\nlimit  of  permissible\tlegislative  action  affecting\tsuch
\nrights.\n<\/p>\n
(3)In  any  event  the\tsection\t and  the.  rules   impose
\nunreasonable   restrictions   on   the\t fundamental   right
\nguaranteed  to\tthe appellants under Art. 19(1)\t (a)  &\t (b)
\nbecause\n<\/p>\n
\t      (a)   the\t ambit\tof power  conferred  on\t the
\n\t      Executive is very large and uncontrolled;\n<\/p>\n
\t      (b)   such  power\t is  open  to  be  exercised
\n\t      arbitrarily.\n<\/p>\n
\t      (c)   the restrictions imposed are excessive;\n<\/p>\n
\t      (d)   the\t procedure and manner of  imposition
\n\t      are not fair and just;\n<\/p>\n
\t      (e)   there   are\t no  sufficient\t  safeguards
\n\t      against  the  misuse of  power  conferred\t and
\n\t      there is no right of representation;\n<\/p>\n
\t      (f)   the\t section and the rules\tsuffer\tfrom
\n\t      vagueness:\n<\/p>\n
\t      (g)   the restrictions are not narrowly  drawn
\n\t      to  prevent  the\tsupposed  evil\tand  do\t not
\n\t      satisfy the touchstone for legislation dealing
\n\t      with basic freedom, namely, precision;\n<\/p>\n
\t      (h)   in delegating powers to the Executive to
\n\t      impose  restrictions the legislature  has\t not
\n\t      provided\tadequate standards to pass  scrutiny
\n\t      by accepted tests.\n<\/p>\n
275<\/span><\/p>\n
(4) The, impugned section And rules violate Art.14 as they
\nenable\tthe  authorities to   discriminate  between  persons
\nwithout just classification.\n<\/p>\n
(5)Section  33(1)(o)  suffers from the vice  of\t excessive
\ndelegation of legislative powers and is therefore void.
\nComing to the first point raised by the learned counsel,  it
\nseems  to  us that the word ‘regulating In  s.\t33(0)  would
\ninclude\t the power to prescribed that permission in  writing
\nshould\tbe taken a few days before the holding of a  meeting
\non  a  public street.  Under s. 35(o) In(.)  rule  could  be
\nprescribed  prohibiting\t all meetings or  processions.\t The
\nsection\t proceeds on the basis that the public has ‘a  right
\nto  hold  assemblies and processions on\t and  along  streets
\nthough it is necessary to regulate the conduct and behaviour
\nor  action  of\tpersons\t constituting  such  assemblies\t  or
\nprocessions in order to safeguard the rights of citizens and
\nin  order  to preserve public order.  The  word\t ‘regulate’.
\naccording to Shorter Oxford Dictionary, means, “to  control,
\ngovern,\t or  direct  by rule or regulations  to\t subject  to
\nguidance or restrictions”.\n<\/p>\n
The  impugned Rules do not prohibit the holding of  meetings
\nbut only prescribe that permission should be taken  although
\nit  is\tnot  stated  on what  grounds  permission  could  be
\nrefused.  We shall deal with this aspect a little later.
\nIt  was urged before us that according to the Common Law  of
\nEngland\t no one has a right to hold a meeting on  a  highway
\nand the same law prevails in India and, therefore, we should
\nread  the word “regulating” to mean a right to prohibit\t the
\nholding of a meeting also.  ‘Reference was made to Halsbury,
\nThird Edition, volume 19, where it is stated that “the right
\nof  the\t public is a right to pass along a highway  for\t the
\npurpose of legitimate travel, not to be on it except so\t far
\nas  their presence is attributed to a reasonable and  proper
\nuse of the highway as such. (page 73. para 107).
\nOn page 276 it is stated that “the right of passage does not
\ninclude the right torace upon the highway, and to do so
\nis an indictable nuisance,nor is there any right to organise
\nor take part in a processionor\tmeeting\t which\t naturally
\nresults in an obstruction and is an unreasonable user of the
\nhighway.”  In the footnote it is stated that “the  right  of
\nthe  public  on\t the highway is ‘a right  of  passage  in  a
\nreasonable manner and there is no right to hold meetings  in
\nthe highway.”\n<\/p>\n
Reference was also made to Blackwell’s Law of Meetings\t(9th
\nedn. p. 5), wherein it is stated as follows :-\n<\/p>\n
\t      “There appears to exist a view that the public
\n\t      has a right to hold meetings for political and
\n\t      other purposes
\n\t      276<\/span>
\n\t      on   the\thighway.   This\t is   an   erroneous
\n\t      assumption.   A public highway exists for\t the
\n\t      purpose  of  free, passage  and  free  passage
\n\t      only,  and for purposes reasonably  incidental
\n\t      to  this right.  There can be no claim on\t the
\n\t      part of persons who desire to assemble for the
\n\t      purpose  of holding a meeting to do so on\t the
\n\t      highway.\tThe claim is irreconcilable with the
\n\t      purpose for which a highway exists.”
\n\t      It is further stated at p. 6 as follows
\n\t      “Although there is no right on the part of the
\n\t      public  to  bold\tmeetings  on  a\t highway,  a
\n\t      meeting is not necessarily unlawful because it
\n\t      is held on a highway.  Thus, it has been\theld
\n\t      that  a meeting on a public highway may  be  a
\n\t      lawful  meeting within s. 1( 1) of the  Public
\n\t      Meeting  Act  1908.   Whether  or\t not  it  is
\n\t      unlawful\tdepends\t upon the  circumstances  in
\n\t      which  it\t is held, e.g., whether\t or  not  an
\n\t      obstruction  is  caused.\tBut the\t only  clear
\n\t      right  of\t the public on the  highway  is\t the
\n\t      right  to\t pass and repass over  it,  although
\n\t      many other things go by tolerance.”\n<\/p><\/blockquote>\n
We  may\t mention  that\tDicey  took  a\tslightly   different
\nposition.   According  to Dicey’os Law of  the\tConstitution
\n(Tenth Edition) pages 271-72
\n\t      “The right of assembling is nothing more\tthan
\n\t      a result of the view taken by the courts as to
\n\t      individual  liberty of person  and  individual
\n\t      liberty  of speech.  There is no\tspecial\t law
\n\t      allowing A, B and C to meet together either in
\n\t      the  open\t air  or  elsewhere  for  a   lawful
\n\t      purpose,\tbut  the right of A to go  where  he
\n\t      pleases so that he does not commit a trespass,
\n\t      and  to  say what he likes to 13 so  that\t his
\n\t      talk is not libellous or seditious, the  right
\n\t      of B to do the like, and the existence of\t the same
\n rights of C, D, E and F, and so  on  ad
\n\t      infinitum, lead to the consequence that A,  B,
\n\t      C,  D  and a thousand or\tten  thousand  other
\n\t      persons, may (as a general rule) meet together
\n\t      in any place where otherwise they each have  a
\n\t      right  to\t be for a lawful purpose  and  in  a
\n\t      lawful manner.  A has a right to walk down the
\n\t      High  Street or to go on to a common.   B\t has
\n\t      the  same right.\tC, D and all  their  friends
\n\t      have  the\t same right to go  there  also.\t  In
\n\t      other  words.  A, B, C and D and ten  thousand
\n\t      such,  have a right to hold a public  meeting;
\n\t      and  as A may say to B that he thinks  an\t Act
\n\t      ought  to\t be passed abolishing the  House  of
\n\t      Lords, or that the House of Lords are bound to
\n\t      reject any bill modifying the Consti-
\n\t      27 7
\n\t      tution  of their House, and as B may make\t the
\n\t      same remark to. any of his friends, the result
\n\t      ensues that A and ten thousand more may hold a
\n\t      public   meeting\t either\t  to   support\t the
\n\t      Government  or to encourage the resistance  of
\n\t      the  Peers.  Here then you have  in  substance
\n\t      that right of public meeting for political and
\n\t      other purposes which is constantly treated  in
\n\t      foreign countries as a special privilege to be
\n\t      exercised\t   only\t   subject    to     careful
\n\t      restrictions”.\n<\/p>\n
It  is not necessary to refer to the English authorities  on
\nthe\t  point\t because in India the law has  developed  on
\nslightly   different  lines,  especially  with\t regard\t  to
\nprocessions,  and the Statutes of the country  have  treated
\nthe  right  to\ttake out processions and  hold\tmeetings  on
\nstreets in a similar fashion.\n<\/p>\n
In Parthasaradiayyangar v. Chinnakrishna Ayyangar(1) it\t was
\nheld  that  persons  were  “entitled  to  conduct  religious
\nprocessions    through\tpublic streets so that they  do\t not
\ninterfere  with\t the  ordinary use of such  streets  by\t the
\npublic\tand subject to such directions as  the\tMagistrates’
\nmay lawfully give to prevent obstruction of the thoroughfare
\nor breaches of the public peace.” Reference was made in this
\njudgment  (p.  306) to an earlier decision where  the  Sadar
\nCourt, in Appeal 141 of 1857 (M.S.D. 1857, p. 219)     had
\ndeclared  that “the right to pass in procession through\t the
\npublic\tstreets of a town in such a way as  the\t Magistrate
\nmight not object to as dangerous to the public safety, was a
\nright inherent in every subject of the state.”
\nIn  Sundram  Chetti  v. The  Queen(2),\tafter  referring  to
\ncertain\t  orders of the Government and judicial opinion, the
\nCourt observed :\n<\/p>\n
\t      ”\t Both  acknowledged the existence  in  every
\n\t      citizen  of the right to use a public  highway
\n\t      for  processional\t as  well  as  for  ordinary
\n\t      purpose,%.     Both    recognised\t   in\t the
\n\t      Magistrate  a power to suspend  and  regulate,
\n\t      and  in  the police a power  to  regulate\t the
\n\t      exercise of the right.”\n<\/p><\/blockquote>\n
In Sadagopacharior v. A. Rama Rao(3), the head-note reads
\n\t      “The  right to conduct  religious\t processions
\n\t      through\t the  public  streets  is  a   right
\n\t      inherent\tin  every person, provided  he\tdoes
\n\t      not, thereby, invade the rights of
\n(1) I.L.R. (1882) 5 Mad. 304; 309.  (2) I.L.R. (1883) 6 Mad.
\n203; 215,219. (3) T.L.R. (1903) 26 Mad. 376.\n<\/p>\n
278<\/span><\/p>\n
\t      property enjoyed by others, or cause a  public
\n\t      nuisance\tor interfere, with the ordinary\t use
\n\t      of  the streets by the public, and subject  to
\n\t      directions or prohibitions for the  prevention
\n\t      of obstructions to thoroughfares or breaches
\n\t      (if the peace.”\n<\/p>\n
In   Vijiaraghav’a  Chariar  v.\t Emperior(l)  there  was   a
\ndifference of opinion.\tBenson, J., observed at page 585
\n\t      “No doubt a highway is primarily intended\t for
\n\t      the use of individuals passing and  re-passing
\n\t      along   it  in  pursuit  of   their   ordinary
\n\t      avocations,   but\t  in  every   country,\t and
\n\t      especially in India, highways have, from\ttime
\n\t      immemorial, been used for the passing and\t re-
\n\t      passing\tof  processions\t as  well   as\t ‘of
\n\t      individuals and there is nothing illegal in  a
\n\t      procession  or  assembly engaging\t in  worship
\n\t      while passing along a highway, an more than in
\n\t      an individual doing so.”\n<\/p>\n
\t      Benson, J. further observed at p. 587, as follows\t :\n<\/p>\n
\t      “The    practice\tof  using  the\t      public
\n\t      highways for religious processions has existed
\n\t      in  India\t for thousands of  years.   History,
\n\t      literature  and  tradition all  tell  us\tthat
\n\t      religious\t processions to the village  shrines
\n\t      formed a feature of the national life from the
\n\t      very earliest times.  That atone is sufficient
\n\t      to  raise a presumption that it is lawful\t and
\n\t      to throw on those who allege it to be unlawful
\n\t      the  onus of showing that it is  forbidden  by
\n\t      law,  but this it admittedly is not.  The\t law
\n\t      recognizes   the\t use  of  the\thighway\t  by
\n\t      processions   as\t lawful:   and\t gives\t the
\n\t      Magistrate  and  superior officers  of  police
\n\t      power to direct the conduct of assemblies\t and
\n\t      processions through the public streets and  to
\n\t      regulate\tthe use of music in connection\twith
\n\t      them,  and  to  prevent  obstructions  on\t the
\n\t      occasion\t of  such  assemblies  and   proces-
\n\t      sions……   The\t law  recognises   religious
\n\t      processions  as  lawful  just as\tmuch  as  it
\n\t      recognizes  other\t processions……..  It  is
\n\t      more  reasonable\tto  suppose  that  he  would
\n\t      dedicate\tthe  highway  to  the  purposes\t for
\n\t      which,  in accordance with the custom  of\t the
\n\t      country,\tit would he required by the  people.
\n\t      The  penal  law  of India\t extends  a  special
\n\t      protection  against voluntary disturbances  to
\n\t      all  assemblies lawfully engaged in  religious
\n\t      worship.\t A procession is but an assembly  in
\n\t      motion and if it is, a religious\tprocession.,
\n\t      it is, in my judgment,
\n(1)  I.L.R. (1903) 26 mad. 554.\n<\/p>\n
     279<\/span><\/p>\n
 entitled  to the special protection given  by
\n\t      the Penal Code assemblies lawfully engaged  in
\n\t      religious worship.”\n<\/p>\n
We have referred to these cases in detail because they\twere
\napproved of by the Privy Council in Manzur Hasan v. Muhammed
\nZaman(l). In that case the Privy Council held :\n<\/p>\n
\t\t    “In India, there is a right to conduct a
\n\t      religious\t procession  with  its\t appropriate
\n\t      observances through a public street so that it
\n\t      does  not interfere with the ordinary  use  of
\n\t      the  street  by  the public,  and\t subject  to
\n\t      lawful directions by the magistrates. A  civil
\n\t      suit for a declaration lies against those\t who
\n\t      interfere\t with a religious procession or\t its
\n\t\t\t    appropriate observance.”\n<\/p><\/blockquote>\n
In Chandu Sajan Patil v. Nvahalehand(2) the Full Bench held
\nthat   a  citizen  had\tan  inherent  right  to\t conduct   a
\nnonreligious   procession through a public road.
\nThis  Court  followed the decision of the Privy\t Council  in
\nShaikh\tPiru  Bux  v. Kalandi Pati<\/a> (3 ). It  is\t true  these
\ndecisions primarily  deal with processions but the  statutes
\nof the country,\t    notably  the  Police  Acts,\t deal\twith
\nassemblies and processions on the same basis, and as pointed
\nout by Benson, J., a procession is but\t an   assembly\t  in
\nmotion.\n<\/p>\n
This Court considered the question of the right of  citizens
\nto  carry on motor transport business on highways in  Saghir
\nAhmmad\t  v.  State of U.P.(4). The following  passage\tfrom
\nthe judgment   of  Venkatarama\tAyyar J.,  in  C.S.S.  Motor
\nService v. State    Madras(5) was approved :\n<\/p>\n
\t      “The  true position then is, that\t all  public
\n\t      streets and roads vest in the State, but\tthat
\n\t      the State holds them as trustees on behalf  of
\n\t      the  public.  The members of  the\t public\t are
\n\t      entitled\tas  beneficiaries to use them  as  a
\n\t      matter of right and this right is limited only
\n\t      by the similar rights possessed by every other
\n\t      citizen to use the   pathways.  The  State  as
\n\t      trustees\ton behalf of the public is  entitled
\n\t      to   impose  all\tsuch  limitations   on\t the
\n\t      character\t and extent of the user, as  may  be
\n\t      requisite\t for  protecting the rights  of\t the
\n\t      public  generally;  …. but subject  to\tsuch
\n\t      limitations the right of a citizen to carry on
\n\t      business\tin  transport  vehicles\t on   public
\n\t      pathways\tcan  not  be denied to\thim  on\t the
\n\t      ground that the State owns     the highways.”\n<\/p><\/blockquote>\n
 (1) 52 I.A. 61\t\t    (2) A.I.R. 1950 Bom. 192.
\n(3)  Civil Appeal No. 25 of 1966; Judgment dated October 29,
\n1968).\n<\/p>\n
(4) [1955] 1 S.C.R. 707,\t  (5) [1952] 2 M.L, J. 894
\nof
\n280<\/span>
\nWe  are\t unable\t to appreciate how  this  passage  militates
\nagainst the contentions of the appellant.  The Court was not
\nthen   concerned  ‘with\t the  use  of  public  streets\t for
\nprocessions or meetings.\n<\/p>\n
It  seems  to us that it follows from the  above  discussion
\nthat  in  India a citizen had, before  the  Constitution,  a
\nright  to  hold meetings on public streets  subject  to\t the
\ncontrol of the appropriate authority regarding the time\t and
\nplace of the meeting and subject to considerations of public
\norder.\t Therefore, we are unable to hold that the  impugned
\nrules  are ultra vires s. 3 3 (1) of the Bombay\t Police\t Act
\ninsofar\t as  they  require  prior  permission  for   holding
\nmeetings.\n<\/p>\n
This takes us to points, (2) and (3) mentioned above.  It is
\nnot  surprising\t that the  Constitution-makers\tconferred  a
\nfundamental right on all citizens ‘to assemble peaceably and
\nwithout arms’.\tWhile prior to the coming into force of\t the
\nConstitution the right to assemble could have been  abridged
\nor  taken  away by law, now that cannot be  done  except  by
\nimposing reasonable restrictions within Art. 19(3).  But  it
\nis urged that the right to assemble does not mean that\tthat
\nright  can be exercised at any and every place.\t This  Court
\nheld in Railway, Board v. Narinjan Singh(1) that there is no
\nfundamental right for any one to hold meetings in government
\npremises.  It was observed
\n\t      “The  fact that the citizens of  this  country
\n\t      have  freedom of speech, freedom\tto  assemble
\n\t      peaceably and freedom to form associations  or
\n\t      unions  does not mean that they  can  exercise
\n\t      those freedoms in whatever place they please.”
\nThis  is  true\tbut nevertheless the  State  cannot  by\t law
\nabridge\t or take away the right of assembly  by\t prohibiting
\nassembly on every public street or public place.  The  State
\ncan only make regulations in aid of the right of assembly of
\neach citizen and can only impose reasonable restrictions  in
\nthe interest of public order.\n<\/p>\n
This  Court  in Babulal Parate v. State\t of  Matharashtra  2
\nrightly observed :\n<\/p>\n
\t      “The right of citizens to take out processions
\n\t      or  to  hold public meetings  flows  from\t the
\n\t      right in Art. 19(1) (b) to assemble  peaceably
\n\t      and  without  arms  and  the  right  to\tmove
\n\t      anywhere in the territory of India.”\n<\/p><\/blockquote>\n
(1)  [1969] 3 C.R 548, 554.\n<\/p>\n
(2) [1961] 3 S.C.R. 423;  438.\n<\/p>\n
281<\/span><\/p>\n
If the right to hold public meetings flows from Art. 19\t (1)
\n(b  and Art. 19 (1) (d) it is obvious that the State  cannot
\nimpose unreasonable restrictions.  It must be, kept in\tmind
\nthat  Art.  19(1)(b), read with Art. 13,  protects  citizens
\nagainst\t State action.\tIt has nothing to do with the  right
\nto  assemble  on  private streets or  property\twithout\t the
\nconsent of the owners or occupiers of the private property.
\nThis leads us to consider whether s. 3 3 (1) (o) of the\t Act
\nand the rules violate Art. 19(1) (b).  We do not think\tArt.
\n19(1) (a) is attracted on the facts of the case.
\nWe  cannot  appreciate how s. 33(1)(o) violates\t Art.  19(1)\n<\/p>\n
(b).  It enables the Commissioner to make rules to  regulate
\nthe  assemblies\t and processions.  Without  such  rules,  in
\ncrowdedpublic streets it would be impossible for citizens
\nto  enjoy  their various rights. Indeed s. 33(1)(o)  may  be
\nsaid to have beenenacted in aid of the rights under  Art.
\n19(1) (a) and 19(1)(d).\n<\/p>\n
We  may mention that the sub-section has nothing to do\twith
\nthe formation of assemblies and processions.  It deals\twith
\npersons ,is members of the assemblies and processions.
\nThe  real point in this case is whether the  impugned  rules
\nviolate Art. 19(1)(b).\tRule 7 does not give any guidance to
\nthe  officer authorised by the Commissioner of Police as  to
\nthe circumstances in which he can refuse permission to\thold
\na  public  meeting.   Prima  facie,  to\t give  an  arbitrary
\ndiscretion to an officer is an unreasonable restriction.  It
\nwas  urged  that the Marginal Note of s.  33-power  to\tmake
\nrules  for  regulation of traffic and  for  preservation  of
\norder  in public place, etc.-will guide the officer.  It  is
\ndoubtful  whether  a  marginal note can\t be  used  for\tthis
\npurpose, for we cannot imagine the officer referring to\t the
\nmarginal  note\tof the section and then\t deciding  that\t his
\ndiscretion  is limited, specially as the marginal note\tends
\nwith ‘etcetera’.  It is also too much to expect him to\tlook
\nat  the scheme of the Act and decide that his discretion  is
\nlimited.\n<\/p>\n
We  may\t in this connection refer to  Cox  v.  Louisians(l).
\nAfter starting that “from all evidence before us it  appears
\nthat  the  authorities in Baton Rouge,\tpermit\tor  prohibit
\nparades or street meetings in their completely\tuncontrolled
\ndiscretion” it was observed
\n\t      “This Court has recognized that the lodging of
\n\t      such  broad  discretion in a  public  official
\n\t      allows  him to determine which expressions  of
\n\t      view  will  be permitted and which  will\tnot.
\n\t      This thus sanctions a device for the
\n(1) 13 L.Ed. 2d.471; 486 paras 15,16,17.\n<\/p>\n
282<\/span><\/p>\n
\t      suppression of the communication of ideas\t and
\n\t      permits the official to act as a censor.\t See
\n\t      Saia v. New York, supra, 334 US at 562, 92 Led
\n\t      at  1578.\t  Also\tinherent in  such  a  system
\n\t      allowing\tparades\t or meetings only  with\t the
\n\t      prior permission of an official is the obvious
\n\t      danger  to the right of a person of group\t not
\n\t      to  be  denied equal protection of  the  laws.
\n\t      See  Niemotko  v. Maryland, supra, 340  US  at
\n\t      272,  284, 95 Led at 270, 277; cf Yick Wo.  v.
\n\t      Hopkins, 118 US 356, 30 L ed 220, 6 S Ct 1064.
\n\t      It  is  clearly unconstitutional to  enable  a
\n\t      public official to determine which expressions
\n\t      of  view will be permitted and which will\t not
\n\t      or to engage in invidious discrimination among
\n\t      persons  or groups either by use of a  statute
\n\t      providing\t a  system  of\tbroad  discretionary
\n\t      licensing\t power\tor,  as in  this  case,\t the
\n\t      equivalent of   such  a  system  by  selective
\n\t      enforcement of an extremely    broad
\n\t      prohibitory statute.”\n<\/p>\n
\t      \"It is, of course,       undisputed\tthat\n\t      appropriate, limit-\n<\/pre>\n
\t      ed  discretion, under properly drawn  statutes
\n\t      or  ordinances,  concerning the  time,  place,
\n\t      duration, of manner of use of the streets\t for
\n\t      public\tassemblies   may   be\tvested\t  in
\n\t      administrative  officials, provided that\tsuch
\n\t      limited\tdiscretion   is\t  “exercised\twith
\n\t      ‘uniformity  of method of treatment  upon\t the
\n\t      facts of each application, free from  improper
\n\t      or  inappropriate considerations and from\t un-
\n\t      fair   discrimination’.\t.  .  and   with   a
\n\t      systematic,  consistent  and  just  order
\n\t      of   treatment,\twith   reference   to\t the
\n\t      convenience    of\t   public   use\t   of\t the
\n\t      highways…….. Cox v. New Hampshire,  supra,
\n\t      312  US at 576, 85 L ed-at 105, 133 ALR  1396.
\n\t      See Poulos v. New Hampshire, supra.\n<\/p>\n
\t      “But  here  it is clear that the\tpractice  in
\n\t      Baton Rouge allowing unfettered discretion  in
\n\t      local  officials in the regulation of the\t use
\n\t      of  the  streets\tfor  peaceful  parades\t and
\n\t      meetings\tis  an\tunwarranted  abridgment\t  of
\n\t      appellant’s  freedom  of speech  and  assembly
\n\t      secured  to  him by the  First  Amendment,  as
\n\t      applied  to  the\tStates\tby  the\t  Fourteenth
\n\t      Amendment.”\n<\/p>\n
These  extracts clearly bring out the dangers of  conferring
\narbitrary discretionary powers.\n<\/p>\n
We may make it clear that there is nothing wrong in  requir-
\ning  previous  permission to be obtained  before  holding  a
\npublic meeting on a public street, for the right which flows
\nfrom Art.\n<\/p>\n
283<\/span><\/p>\n
19 (1) (b) is not a right to hold a meeting at any place and
\ntime.  It is a right which can be regulated in the  interest
\nof all so that all can enjoy the right.\n<\/p>\n
In  our view rule 7 confers arbitrary powers on the  officer
\nauthorised by the Commissioner of Police and must be  struck
\ndown.\tThe other Rules cannot survive because\tthey  merely
\nlay  down the procedure for obtaining permission but  it  is
\nnot  necessary to strike them down for without Rule  7\tthey
\ncannot\toperate.   Rule\t 14  and  Rule\t15  deal  both\twith
\nprocessions  and  public  meetings.  Nothing  we  have\tsaid
\naffects\t the  validity\tof  these  two\trules  as,  far\t  as
\nprocessions are concerned.\n<\/p>\n
In view of this conclusion it is not necessary to decide the
\nother\tpoints\traised\tby  the\t learned  counsel  for\t the
\nappellants.\n<\/p>\n
A  number  of other American cases were referred to  in\t the
\ncourse of arguments but we do not find it useful to refer to
\nan  of them in detail.\tIt is, however, interesting to\tnote
\nthat  in  the  United States of America\t the  right  to\t use
\nstreets\t and parks And public places “has from ancient\ttime
\nbeen  a\t part  of the  privileges,  immunities,\t rights\t and
\nliberties  of citizens.\t The privilege of a citizen  of\t the
\nUnited States to use the streets and parks for communication
\nof  views  on  national questions may be  regulated  in\t the
\ninterest of all; it is not absolute, but relative, and\tmust
\nbe  exercised  in subordination to the general\tcomfort\t and
\nconvenience,  and in consonance with peace and\tgood  order;
\nbut it must not, in the guise of regulation, be abridged  or
\ndenied.”  (vide Roberts, J., in Hague v. C.I.O. (83  L.\t Ed.
\n1423 at 1436-37)].  This passage was cited with approval  in
\nShuttlesworth v. Birmingham (22 L. Ed. 2.nd, 162 at 168).
\nIn  the result we set aside the judgment of the High  Court,
\nallow  the appeal and declare that r. 7 of the Rules  framed
\nby  Commissioner  of  Police,  Ahmedabad,  is  void  as\t  it
\ninfringes Art. 19(1)(b) of the Constitution.  We need hardly
\nsay  that  it will be open to the  Commissioner\t of  Police,
\nAhmedabad, to frame a proper rule or rules.
\nMATHEW, J. I agree with the conclusion of my Lord the  chief
\nJustice but my reasons for that conclusion are different.
\nThe  appellant filed an application tinder Art. 226  of\t the
\nConstitution  in  the High Court of  Gujarat  at  Ahmedabad,
\npraying\t  for  a  declaration  that  orders   contained\t  in
\nAnnexures,  A  and  ‘B’ to that application,  by  which\t the
\nDeputy Commissioner of Police Special Branch Ahmmadabad\t the
\n2nd respondent refused to grant permission to the  appellant
\nto  hold public meetings near Panch Kuva Darwaja on the\t 4th
\nand 5th September 1969, were invalid and that rules 7 to 11,
\n14 and 15 framed under s.3(1)
\n284<\/span>
\nof  the\t Bombay Police Act, 1951, as applied  to  Saurashtra
\narea  in  Gujarat which prescribe the requirement  of  prior
\npermission  and the method of applying for the same, etc.,
\nwere  ultra  vires  the sub-section  and  violative  of\t his
\nfundamental  right under Art. 19(1) (a) and (b).  The  Court
\nfound that the principal prayer in the application,  namely,
\nthe challenge to the validity of the two orders, had  become
\ninfructuous  by\t lapse\tof time as the dates  on  which\t the
\nintended meetings were to be held had long since passed\t but
\nconsidered  the\t question whether rules 7 to 11, 14  and  15
\nwere  intra  vires  section 33(1)  and\twhether\t they  would
\nviolate\t the fundamental rights of the applicant under\tArt.
\n19(1) (a) and (b) of the Constitution.\tThe Court  dismissed
\nthe application holding that the rules were intra vires\t the
\nsub-section  under which they were framed and that they\t did
\nnot  violate the fundamental rights of the petitioner  under
\nArt.  19 (1) (a) or (b) This appeal is by  certificate\tfrom
\nthat judgment.\n<\/p>\n
Section 33(1)(o) of the Bombay Police Act, 1951, provides
\n\t      “33(1)  The  Commissioner\t and  the   District
\n\t      Magistrate,  in areas under  their  respective
\n\t      charges  or any part thereof, may make,  alter
\n\t      or  rescind rules or orders  not\tinconsistent
\n\t      with this Act for;\n<\/p>\n
\t      xx xx xx xx xx xx xx xx xx xx\n<\/p>\n
\t      (o)   regulating the conduct of and  behaviour
\n\t      or  action of persons constituting  assemblies
\n\t      and  processions on or along the\tstreets\t and
\n\t      prescribing  in the case of  processions,\t the
\n\t      routes  by which, the order in which  and\t the
\n\t      times at which the same may pass;”\n<\/p>\n
\t      Rule 7 of the Rules framed by the Commissioner
\n\t      of Police under s. 33 (1) (o) provides :
\n\t      “7.  No public meeting with or  without  loud-
\n\t      speaker,\tshall be held on the  public  street
\n\t      within the jurisdiction of the Commissionerate
\n\t      of Police, Ahmedabad City unless the necessary
\n\t      permission  in writing has been obtained\tfrom
\n\t      the, officer authorised by the Commissioner of
\n\t      Police.”\n<\/p>\n
The appellant submitted that S. 33(1)(o) did not empower the
\nCommissioner  or  the District Magistrate to  frame  a\trule
\nrequiring a person to obtain prior permission for conducting
\na  public meeting on a public street, as such a\t rule  would
\nimply  that the Commissioner or the District Magistrate\t has
\npower to refuse permission for. holding such a meeting as  a
\npower to permit
\n28 5
\nnormally  implies a power not to permit and so, the rule  is
\nbad.  (It  was under rule 7 that  the  Commissioner  refused
\npermission  to hold meetings on the 4th and  5th  September,
\n1969).\n<\/p>\n
What  the  sub-section\tprovides  is  making  of  rules\t for
\n‘regulating’ the conduct and behaviour, or action of persons
\nconstituting  assemblies.   The sub-section  presupposes  an
\nassembly  and authorises the making of rule  for  regulating
\nthe  conduct,  behaviour or action of the  persons  who\t are
\nmembers\t thereof.   Rule  7 impliedly  gives  power  to\t the
\nCommissioner  to refuse permission to hold a public  meeting
\nand,  when a meeting is prohibited, there is no question  of
\nregulating  the\t conduct,  behaviour or\t action\t of  persons
\nconstituting  assembly,\t as, ex-hypothesi, no  assembly\t has
\nbeen  constituted.   The  sub-section  does  not   authorise
\nframing\t of  rules  to regulate the  conduct,  behaviour  or
\naction or persons before an assembly is constituted.  Before
\nan assembly is constituted, every member of the public is  a
\npotential member of it, because every such member, if he  so
\nchoose. right become a member of the assembly.\tDoes,  then,
\nthe  sub-section authorise the making of rules\tto  regulate
\nthe  conduct,  behaviour  or action of\tevery  such  member,
\nbefore he becomes a member of the assembly ? I think not.
\nA  power to “regulate’ does not normally include a power  to
\nprohibit (see Toronto v. Virao(l), Ontario v. Canada(2).   A
\npower  to regulate implies the continued existence  of\tthat
\nwhich  is to be regulated (see Birmingham and Midland  Motor
\nOmnibus\t Col.  Ltd. v. Worcestershire County Council().\t  If
\nrule  I\t authorises the Commissioner to\t prohibit  a  public
\nmeeting,  is  it  consistent  with  the\t sub-section   which
\nauthorizes only “regulating the conduct.,. . . ” ? When\t the
\nLegislature wanted to give the rule making authority a power
\nto frame rules prohibiting an activity, it has taken care to
\ndo  so by the appropriate word . For  instance,\t sub-section\n<\/p>\n
(p)  of\t s.  33(1) speaks of  “prohibiting  the\t hanging  or
\nplacing\t of  any  cord or pole across a street.\t .  .  .  “,
\nsubsection (q) of  s.  33 (1) relates  to  “prohibiting\t the
\nplacing\t of  building materials\t  in any street”.  In  these
\nsub-sections,  the word ‘prohibit’ is used to show that\t the
\nrule  making authority has power to pass a rule\t prohibiting
\nthe activities therein mentioned.  Similarly sub-section (x)
\nof  s. 3 3 (1) provides for “regulating or  prohibiting\t the
\nsale  of  any ticket The juxtaposition of these words  is  a
\nfurther\t indication  to show that the  legislature  intended
\ndifferent connotations to the words.  I am not saying that a
\npower  to  regulate can never include a power  to  prohibit.
\nBut the context here does not compel such
\n(1) [1896] A.C. 88.\n<\/p>\n
(2) [1896] A.C. 348.\n<\/p>\n
(3) [1967] 1 W.L.H. 409.\n<\/p>\n
286<\/span><\/p>\n
a  reading.   Rule  7 is, therefore, ultra  vires  the\tsub-
\nsection.   Even if the rule is ultra vires  the\t sub-section
\nthe  appellant will not be entitled to hold public  meetings
\non the street in question unless the appellant has the right
\nin law to do so.  It was, therefore, argued on behalf of the
\nappellant  that every citizen has the fundamental  right  to
\nhold public meetings on a public street.
\nThe respondents, however, submitted that, in India, the\t law
\nis, that there is no right, let alone a fundamental one,  to
\nhold  public meeting on public street.\tIn Saghir Ahmmad  v.
\nThe State of U.P. and others(1), this Court said :\n<\/p>\n
\t      “According  to  English law,  which  has\tbeen
\n\t      applied all along in India, a highway has\t its
\n\t      origin,  apart from statute,,  in\t dedication,
\n\t      either express or implied, by the owner of the
\n\t      land  of\ta right of passage over\t it  to\t the
\n\t      public and the acceptance of that right by the
\n\t      public”.\n<\/p><\/blockquote>\n
The only right acquired by the public is a right to pass and
\nrepass\tit at their pleasure for the purpose  of  legitimate
\ntravel. Ex-parte Lewis(2), Wills, J. speaking for- the Court
\nsaid
\n\t      “A  claim on the part of persons so minded  to
\n\t      assemble\tin  any numbers, and for so  long  a
\n\t      time as they please to remain assembled,\tupon
\n\t      a\t highway, to the detriment of others  having
\n\t      equal  right, is in its nature  irreconcilable
\n\t      with the, right of free passage, and there is,
\n\t      so  far as we have been able to ascertain,  no
\n\t      authority\t whatever in favour of it.   It\t was
\n\t      urged  that the right of public  meeting,\t and
\n\t      the right of occupying any unoccupied land  or
\n\t      highway  that might seem appropriate to  those
\n\t      of  her  Majesty’s subjects who wish  to\tmeet
\n\t      there,  were,  if\t not  synonymous,  at  least
\n\t      correlative.    We  fail\tto  appreciate\t the
\n\t      argument.”\n<\/p>\n
In  Reg. v. Omninghame Graham and Burns(:) the\tCommissioner
\nof Police, in the exercise of his powers vested in him under
\nthe Metropolitan Police Act, 1839, issued an order that\t “no
\norganised  procession  shall  be  allowed  to  approach\t the
\nTrafalgar Square on Sunday the 13th instant”.  It was argued
\nthat  he  had no power to forbid an  orderly  meeting.\t But
\nCharles, J. in charging the jury said :\n<\/p>\n
\t      “I  can find no warrant for telling  you\tthat
\n\t      there  is a right of public meeting either  in
\n\t      Trafalgar\t  Square   or\tany   other   public
\n\t      thoroughfare.   So  far as I know the  law  of
\n\t      England,\tthe use of public  thoroughfares  is
\n\t      for  people  to pass and\trepass\talong  them.<\/p><\/blockquote>\n
\t      That is the
\n(1)  [1965]  1 S.C.R. 707, 715.\t (2) (1888) Law\t Reports  21
\nQ.B.D. 191
\n(3)  (1886-90)\tCox’s Criminal Law Cases.  Vol. 16,  420,29-\n<\/p>\n
30.
\n287<\/span>
\n\t      purpose  for  which  they\t are,  as  we\tsay,
\n\t      dedicated\t by the owner of them to the use  of
\n\t      the  public and they are not dedicated to\t the
\n\t      public  use for any other purpose that I\tknow
\n\t      of  than\tfor the purpose of passing  and\t re-
\n\t      passing;”\n<\/p>\n
A  meeting  held  on  a highway,  although  it\tmight  be  a
\ntrespass.  against  the Authority in which  the\t highway  is
\nvested is not,, on that ground, wrongful against the members
\nof the public.\tAs far as they are concerned the meeting  is
\na  wrong  only\tif  it is a nuisance.\tAs  the\t public\t are
\nentitled to the unobstructed use of the highway for  passing
\nand  repassing, any meeting which appreciably obstructs\t the
\nhighway would seem to constitute such a nuisance.  The\ttest
\nis  whether it “renders the way less commodious than  before
\nto  the\t public”.   The\t fact  that  sufficient\t alternative
\npassage\t space is left is no defence.  “It is no defence  to
\nshow  that…… though a part of the highway actually\tused
\nby the passengers is obstructed, sufficient available  space
\nis  left.” (1) Moreover, it is not necessary to\t prove\tthat
\nany one has been obstructed; the placing of obstructions  on
\na public road or street in a manner calculated to create  an
\nobstruction  to traffic is an offence although no person  or
\ncarriage may have been actually\t   obstructed.\t In Gill  v.
\nCarson and IV Nield(2) Viscount Reading,     C.J. said
\n\t      “In  my judgment it is not necessary to  prove
\n\t      that a person has been actually obstructed, it
\n\t      is  quite sufficient to prove  circumstances
\n\t      from  which the justices can conclude that  in
\n\t      the ordinary course persons may be obstructed,
\n\t      and  that the actual use of the road was\tcal-
\n\t      culated to obstruct even though no person\t was
\n\t      proved to have been obstructed.”\n<\/p>\n
Applying  these\t rules\tto the special\tfacts  of  a  public
\nmeeting in the highway, it would appear that such a meeting,
\nhowever\t reasonable and desirable its purposes may be, is  a
\nnuisance if it causes any appreciable obstruction, and\tthat
\nit is not necessary to prove that in fact, any one has\tbeen
\nprevented  from passing. In De Morgan v. Metropolitan  Board
\nof Works(3) it was held that although there is a  widespread
\nbelief\tthat the general public has a right to hold  meeting
\non  a common, no such right was known to the law.   When  it
\nwas  argued that such meetings were always permitted,  Lush.
\nJ.  is\treported  to  have said\t that  “such  uses  did\t not
\nconstitute a right or prove anything more than an excused or
\nlicensed  trespass”.  It may be stated, therefore.  that  if
\nevery unlicensed public meeting is a trespass, as against  a
\nperson
\n(1) Halsburly, Hailsham ed., Vol. xvi, p. 355
\n(2) [1917] 2 K.B. 674, 677.\n<\/p>\n
(3) [1880] 5 Q.B.D. 155, 157.\n<\/p>\n
288<\/span><\/p>\n
or  body  of persons in whom the surface of the\t highway  is
\nvested, then this obviously may limit the so called right of
\npublic meeting to the ‘Vanishing point.
\nDicey in his Law of the Constitution(1) has observed’:\n<\/p>\n
\t      “A has a right to walk down the High Street or
\n\t      to  go on to a common.  B has the same  right.<\/p><\/blockquote>\n
\t      C, D and all their friends have the same right
\n\t      to go there also.\t In other words, A, B, C and
\n\t      D,  and  ten thousand such, have’ a  right  to
\n\t      hold a public meeting; is
\nIt  might not follow that because A, B, C. D, etc.,  have  a
\nright to walk down the\t High  Street,\tthey  have  a  legal
\nright to hold a public meeting.\t   Beatty  v.\tGillbanks(2)
\nwhich dicey cites as the leading case\ton the law of public
\nmeeting was not directly concerned with this question as the
\nappellants  there who were leading a procession through\t the
\nstreet\tintended to hold their meeting on private  premises.
\nDicey has himself pointed out in the Appendix to the  eighth
\nedition of the book as follows : (3)
\n\t      “Does there exist any general right of meeting
\n\t      in  public  places?  The answer is  easy.\t  No
\n\t      such right is known  to the law of England.
\n\t      “……  But  speaking in\t general  terms\t the
\n\t      Courts do\t not recognise certain spaces as set
\n\t      aside for that end.  In this respect, again, a
\n\t      crowd  of a thousand people stand in the\tsame
\n\t      position as an individual person.\t If A  wants
\n\t      to deliver a lecture, to make a speech, or  to
\n\t      exhibit  a show, he must obtain some  room  or
\n\t      field  which  he\tcan  legally  use  for\t his
\n\t      purpose.\t He  must not invade the  rights  of
\n\t      property-i.e., commit a trespass.\t He must not
\n\t      interfere with the convenience of the  public-
\n\t      i.e., create a nuisance.\n<\/p>\n
\t      “The  notion that there is such a thing  as  a
\n\t      right of meeting in public places arises\tfrom
\n\t      more   than   one\t  confusion   or   erroneous
\n\t      assumption.  The, right of public meeting-that
\n\t      is, the right of all men to come together in a
\n\t      place where they may lawfully assemble for any
\n\t      lawful  purpose, and especially for  political
\n\t      discussion-is  confounded\t with  the   totally
\n\t      different\t and falsely alleged right of  every
\n\t      man  to  use  for the  purpose  of  holding  a
\n\t      meeting any place which in any sense is  open
\n\t      to the public.  The two rights, did they\tboth
\n\t      exist, are essentially different, and in\tmany
\n\t      countries are
\n(1)  A.V. Dicey, Law of the Constitution, 10th ed., 271-272.
\n(2)  [1882] 9 Q.B.D. 308.\n<\/p>\n
(3)  Appenx  to Law of the Constitution 8th ed, Note’  V  on
\nQuestion  connected with th.- right of public meeting”,\t pp.
\n498-499.\n<\/p>\n
\t\t\t    289<\/span><\/p>\n
\t      regulated\t by totally different rules.  It  is
\n\t      assumed again that squares, streets, or roads,
\n\t      which   every  man  may  lawfully\t  use,\t are
\n\t      necessarily  available  for the holding  of  a
\n\t      meeting.\t The assumption is false.   A  crowd
\n\t      blocking\tup  a highway  will  probably  be  a
\n\t      nuisance\tin  the legal, no less than  in\t the
\n\t      popular sense of the term, for they  interfere
\n\t      with  the ordinary citizen’s right to use\t the
\n\t      locality in the, way permitted to him’ by law.
\n\t      Highways, indeed, are dedicated to the  public
\n\t      use,  but they must, be used for\tpassing\t and
\n\t      going  along them, and the legal mode  of\t use
\n\t      negatives\t the claim of politicians to  use  a
\n\t      highway  as a forum, just as it excludes.\t the
\n\t      claim  of actors to turn it into an  open\t air
\n\t      theatre.The crowd who collect, and the persons
\n\t      who  cause a crowd, for whatever\tpurpose,  to
\n\t      collect\t  in\ta    street,\tcreate\t   a
\n\t      nuisance……….\n<\/p>\n
In  Burden  v. Rigle’r and another(1), the  evidence  showed
\nthat  the urban authority. had tacitly licensed the  meeting
\nand  so it was not a trespass as against them., No  evidence
\nwas  also  adduced that the meeting caused  any\t appreciable
\nobstruction on the highway and so there was no proof of\t any
\nnuisance.   The\t Court\theld that the  fact  that  a  public
\nmeeting\t is  held upon a highway does not make\tthe  meeting
\nunlawful  whether  it is unlawful or not  depends  upon\t the
\ncircumstances  in which it is held e.g., whether or  not  an
\nobstruction  is\t caused, The Court further, held  that\teven
\nthough\tthere  is no right to hold a meeting on\t a  highway,
\ni.e.,  no  absolute  legal right, it  does  not\t necessarily
\nfollow\tthat,  if a meeting is held, it may not\t be  lawful.
\nAnd  after  referring to the decision-in  Ex-parte  Lewis(2)
\nalready referred to, the Court said that the convenors of a
\nmeeting cannot, under all circumstances, insist on holding a
\nmeeting.\n<\/p>\n
In Harrison v. Duke of Rutland(3), Lord Esher M. Observed:\n<\/p>\n
\t      “Highways\t are no doubt dedicated prima  facie
\n\t      for the purpose of   passage;  but things\t are
\n\t      done upon them by everybody    which\t are
\n\t      recognised  as  being  rightly  done,  and  as
\n\t      constituting  a reasonable and usual  mode  of
\n\t      using a highway as such.”\n<\/p><\/blockquote>\n
In Halsbury’s Laws of England(4), it is said , that. it is a
\nnuisance  organise ‘or take part in a procession or  meeting
\nwhich  naturally  results  in  an  obstruction\tand  is.  an
\nunreasonable use of the highway
\n(1) [1911] L.R. 1 K.B.337
\n(2) [1965] 1 S.C.R. 707. 715.\n<\/p>\n
(3) [1893] Q.B. 142, C.A. at 146
\n(4) Hailssham Edition , Vol xvi, p. 362 ” Highway”.\n<\/p>\n
290<\/span><\/p>\n
Public\tprocessions  are prima facie legal.  If A, B  and  C
\nhave  each a right to pass and repass on the highway,  there
\nis nothing illegal in their doing so in concert, unless\t the
\nprocession is illegal on some other ground (see Manzur Hasan
\nv.   Muhammed\tZaman(l)   and\t Chandu\t  Sajan\t  Patil\t  v.
\nNyshalchand(2).\t  “As ‘the public interest is paramount,  it
\nis  sometimes  suggested that, on the analogy  of  a  public
\nmeeting,   any\tprocession  which  causes   an\t appreciable
\nobstruction to the highway must be a public nuisance.  This,
\nhowever,  is not so.  As a public meeting is not one of\t the
\nuses  for  which  the highway has been\tdedicated,-it  is  a
\nnuisance  if it appreciably obstructs the road.\t It is\tno
\ndefence to show that sufficient available space is left if a
\npart   of  the\thighway\t actually  used\t by  passengers\t  is
\nobstructed.  But, and this is most important, in the case of
\na  procession, the test is whether in all the  circumstances
\nsuch  a procession is a reasonable user of the highway,\t and
\nnot  merely whether it causes an obstruction.  Thus to\ttake
\nan obvious illustration, the temporary crowding in a  street
\noccasioned by people going to a circus or leaving it is\t not
\na  nuisance,  for if such a temporary obstruction  were\t not
\npermitted  then\t no popular show, could ever be\t held”\t(see
\nGoodhart,   Public   Meetings\tand   Processions(3).\t The
\ndistinction  between the use of a highway to hold  a  public
\nmeeting\t and the use of it to conduct procession thereon  is
\npointed\t out  by the author and he takes the  view  that  no
\nperson\thas  a\tright to use a highway\tfor  holding  public
\nmeeting\t even though no nuisance is created.   According  to
\nhim,  under  the  law, a person can use a  highway  for\t the
\npurpose\t for which it has been dedicated i.e., to  pass\t and
\nrepass\tand any other unlicensed use, however  desirable  it
\nmay be from other standpoints, is legally wrongful.
\nIn Lowdens v. Keaveney(4), Gibson, J. said that a procession
\nis  prima  facie  legal\t and  that  it\tdiffers\t from\t“the
\ncollection of a stationary crowd” but that a procession\t may
\nbecome a nuisance if the right is exercised unreasonably  or
\nwith reckless disregard of the rights of others.
\nJustice\t Holmes,  while he was Chief Justice of\t the  Massa-<\/p>\n
chusetts Supreme Court said
\n\t      “For    the    legislature    absolutely\t  or
\n\t      conditionally  to forbid public speaking in  a
\n\t      highway\tor  public  park  is  no   more\t  an
\n\t      infringement of the rights of a member of\t the
\n\t      public  than for the owner of a private  house
\n\t      to   forbid   it\tin  his\t house.\t   When\t  no
\n\t      Proprietary rights interfere, the\t legislature
\n\t      may and the right of the public
\n(1)  52 T.A. 61.\n<\/p>\n
(3)  Cambridge Law Journal (1936-38), 6, 171.
\n(2)  A.I.R. 1950 Bom. 192.\n<\/p>\n
(4)  (1903) 2 I.R. 82.\n<\/p>\n
291<\/span><\/p>\n
.lm15
\nto  enter  upon the public place by putting an\tend  to\t the
\ndedication  to public use.  So it may take the less step  of
\nlimiting the public use to certain purposes.”
\nThis  dictum  was quoted and approved by the U.\t S.  Supreme
\nCourt Davis v. Massachusetts(1).  But later decisions of the
\nU.S. Supreme Court have politely distinguished the case.  In
\nHague v.  C.I.O.(2),  Justice  Roberts,\t speaking  for\t the
\nmajority, said
\n\t      “Wherever\t the title of streets and parks\t may
\n\t      rest,  they  have immemorially  been  held  in
\n\t      trust  for the use of the public and time\t out
\n\t      of  mind,\t have  been  used  for\tpurposes  of
\n\t      assembly,\t  communicating\t  thoughts   between
\n\t      citizens,\t and  discussing  public  questions.
\n\t      Such use of the streets and public places has,
\n\t      from  ancient  times,  been  a  part  of\t the
\n\t      privileges,  immunities, rights and  liberties
\n\t      of  citizens.  The privilege of a\t citizen  of
\n\t      the United States to use the streets and parks
\n\t      for   communication  of  views   on   national
\n\t      questions may be regulated in the interest  of
\n\t      all; it is not absolute but relative, and must
\n\t      be  exercised in subordination to the  general
\n\t      comfort and convenience and in consonance with
\n\t      peace and good order; but it must not, in\t the
\n\t      guise of regulation, be abridged or denied.”
\nThis  dictum  has  been\t followed in Kunz  v.  New  York  (3
\nShuttlesworth v. Birmingham (4 ).\n<\/p>\n
Freedom\t of  assembly is an essential element of  any  demo-
\ncratic\tsystem.\t  At  the  root of  this  concept  lies\t the
\ncitizens’  right  to meet face to face with others  for\t the
\ndiscussion   of\t  their\t  ideas\t  and\t problems-religious,
\npolitical,,   economic\t or  social.   Public\tdebate\t and
\ndiscussion  take  many forms including the  spoken  and\t the
\nprinted word, the radio and the screen.\t But assemblies face
\nto  face  perform a function of vital  significance  in\t our
\nsystem,\t and are no less important at the present  time\t for
\nthe  education\tof the public and the formation\t of  opinion
\nthan  they  have  been\tin  our\t past  history.\t  The  basic
\nassumption  in a democratic polity is that Government  shall
\nbe based on the consent of the governed.  But the consent of
\nthe governed implies not only that the consent shall be free
\nbut  also that it shall be grounded on adequate\t information
\nand discussion.\t Public streets are the ‘natural’ places for
\nexpression of opinion and dissemination of ideas.  Indeed it
\nmay  be\t argued that for some persons these places  are\t the
\nonly  possible\tarenas for the effective exercise  of  their
\nfreedom of speech and assembly.\n<\/p>\n
(1) U.S. 43 (1897).\n<\/p>\n
(2) 307 U.S. 496, 515-516.\n<\/p>\n
(3) 340 U.S. 490.\n<\/p>\n
(4) 394 U.S. 147, 152.\n<\/p>\n
292<\/span><\/p>\n
Public meeting in open spaces and public streets forms\tpart
\nof  the\t tradition  of our national  life.   In\t the  pre-
\nIndependence  days  such  meetings have been  held  in\topen
\nspaces and public streets and the people have come to regard
\nit as a part of their privileges and immunities.  The  State
\nand  the  local authority have a virtual monopoly  of  every
\nopen  space  at which an outdoor meeting can be\t held.\t If,
\ntherefore.,  the State or Municipality can  constitutionally
\nclose  both  its streets and its parks\tentirely  to  public
\nmeetings,  the\tpractical result would be that it  would  be
\nimpossible to hold any open air meetings in any large  city.
\nThe real problem is that of reconciling the city’s  function
\nof  providing for the exigencies of traffic in\tits  streets
\nand for the recreation of the public in its parks’ with\t its
\nother  obligations, of providing adequate places for  public
\ndiscussion  in\torder to safeguard the guaranteed  right  of
\npublic\tAssembly.  The assumption made by Justice Holmes  is
\nthat  a city owns its parks and highways in the\t same  sense
\nand  with the same rights a private owner owns his  property
\nwith the right to exclude or admit anyone he pleases.\tThat
\nmay  not  accord with the concept of  dedication  of  public
\nstreets\t and parks.  The parks are held for public  and\t the
\npublic\tstreets\t are  also  held  for  the  public.   It  is
\ndoubtless  true\t that  the  State  or  local  authority\t can
\nregulate its property in order to serve its public purposes.
\nStreets and public parks exist primarily for other  purposes
\nand the social interest promoted by untrammeled exercise  of
\nfreedom\t of  utterance and assembly in\tpublic\tstreet\tmust
\nyield to social interest which prohibition and regulation of
\nspeech\t are   designed\t to  protect.\tBut   there   is   a
\nconstitutional difference between reasonable regulation\t and
\narbitrary exclusion.\n<\/p>\n
The  framers  of  the Constitution were\t aware\tthat  public
\nmeetings  were\tbeing held in public streets  and  that\t the
\npublic\thave come to regard it as part of their\t rights\t and
\nprivileges  as citizens.  It is doubtful whether, under\t the
\ncommon\tlaw  of\t the  land, they  have\tany  such  right  or
\nprivilege but, nobody can deny the de facto exercise of\t the
\nright in the belief that such a right existed.\tCommon error
\nfacit  jus  (common error makes the law).   This  error\t was
\ngrounded  on  the solid substratum of  continued  practice,.
\nover  the years.  The conferment of a fundamental  right  of
\npublic\tassembly would have been an exercise in utility,  if
\nthe Government and the local authorities could legally close
\nall the normal places, where alone, the vast majority of the
\npeople could exercise the right.  Our fundamental rights  of
\nfree speech and assembly are modelled on the Bill of  Rights
\nof  the Constitution of the U.S.A [ see\t Express  Newspapers
\n(Private)  Ltd.\t and  Another  v. The  Union  of  India\t and
\nothers<\/a>(1)]
\n(1)  [1959] S.C.R 12, 121.\n<\/p>\n
293<\/span><\/p>\n
would  be  relevant then to look to the ambit and  reach  of
\nthose rights in the United States to determinE their content
\nand  range in India.  On closer analysis, it will  be  found
\nthat  the  basis  of Justice Roberts’  Dictum  in  Hague  v.
\nC.I.O.(1)  is the continued de facto exercise of  the  right
\nover  a number of years.  I think the same reasoning can  be
\napplied here.\n<\/p>\n
The power of the appropriate authority to impose  reasonable
\nregulation in order to assure the, safety and convenience of
\nthe  people  in the use of public highways  has\t never\tbeen
\nregarded  as  inconsistent  with the  fundamental  right  of
\nassembly.  A system of licensing as regards the time and the
\nmanner\tof holding public meetings on public street has\t not
\nbeen regarded as an abridgement of the fundamental right  of
\npublic\tassembly  or  of  free\tspeech.\t  But  a  system  of
\nlicensing  public meeting will be upheld by Courts  only  if
\ndefinite. standards are provided by the law for the guidance
\nof   the  licensing  authority.\t  Vesting   of\t unregulated
\ndiscretionary power in a licensing authority has always been
\nconsidered  as bad [see the cases on the point discussed  in
\nthe concurring opinion of Justice Frankfurter in Niemotko v.
\nMarylaNd(2)].\n<\/p>\n
If there is a fundamental right to hold public meeting in a
\npublic street, then I need hardly say that a rule like\tRule
\n7, which gives an unguided discretion, practically dependent
\nupon the  subjective whim of an authority to grant or refuse
\npermission to hold a public meeting on public street, cannot
\nbe held to be valid.  There is no mention in the rule of the
\nreasons\t for  which  an\t application  for  licence  can\t  be
\nrejected.   “Broad  prophylactic rules in the area  of\tfree
\nexpression   and   assembly  are  suspect.    Precision\t  of
\nregulation  must  be the touch stone in an area\t so  closely
\ntouching our precious freedoms” [see NAACP v. Button(3).
\nI would allow the appeal.\n<\/p>\n
BEG, J. I have had the advantage of reading the judgments of
\nMylord\tthe Chief Justice and my learned brother Mathew.   I
\nwould  like  to\t indicate why, despite\tmy  difficulties,  I
\nconclude  that Rule 7 of the rules made under Section  33(0)
\nof the Bom  bay Police Act, 1961 (hereinafter referred to as
\n‘the  Act’),  is void.\tThe difficulties I  refer  to  arise
\nmainly\tfrom two considerations : firstly, it is  abundantly
\nclear  that there is no separate right of “public  meeting”,
\nlet  alone a constitutional fundamental right so  described,
\nand, in any case, there, is no such right attached to public
\nstreets\t which are dedicated for the particular\t purpose  of
\npassing and repassing with which any recognition of a  right
\nto hold a meeting on a public thoroughfare will obviously be
\nin-\n<\/p>\n
(1) 307 U.S. 496.\t      (2) 340 US. 268
\n(3)  371 US. 415. 438 (1963)
\n294<\/span>
\nconsistent; and, secondly, although Rule 7 apparently  gives
\na wide discretionary power to give, or to refuse  permission
\nto  hold  a  meeting on a “public street”,  so\tthat  it  is
\ncapable\t of  being  misused  or\t so   used  as\tto  enable
\nunjustifiable  discrimination, yet, it is possible  to\tfind
\nsome  guidance, as the High Court of Gujarat found,  in\t the
\npreamble  as  well  as\tin  Section  33\t (0)  of  the\tAct.
\nTherefore,  it\tmay be possible to rely here,  as  the\tHigh
\nCourt\thad  done,  upon  the  presumption  that  even\t the appar
\nently  wide discretionary powers vested by Rule\t 7  in
\nthe  Commissioner  of Police, a\t highly\t responsible  police
\nofficer, will not be abused.  It is certainly arguable\twith
\nsome force that the power of the High Court; (to strike down
\nan  improper exercise is a sufficient safeguard against\t its
\nmisuse so that it may not be necessary to strike down Rule 7
\nat all.\t Furthermore, in (the case before us, a good  enough
\nreason\twas given by the Commissioner to justify a  refusal.
\nWe are, however, also concerned with the validity of Rule  7
\nwhich  may be relied upon for future refusals or  grants  of
\npermission which will, it is urged, effect the\tpetitioner’s
\nrights.\n<\/p>\n
There  is  doubt that a “public street”, as it\tis  commonly
\nunderstood,  is really dedicated for the use of\t the  public
\nfor the purpose of passing, and repassing on it and not\t for
\nany  other purpose.  In this respect, it appears to me\tthat
\nthe  law  in  this country, as laid down by  this  Court  in
\nSaghir Ahmad v. State of U.P.<\/a>(1) and the Municipal.   Board,
\nManglaur v. Sri Mahadeoji Maharaj<\/a>(2), is not different\tfrom
\nthe  Law  in  England found stated  in\tHalsbury’s  Laws  of
\nEngland (3) , as follows :\n<\/p>\n
\t      “The  right of the public is a right to  ‘pass
\n\t      along’ a highway for the purpose of legitimate
\n\t      travel,  not to ‘be on’ it, except so  far  as
\n\t      their presence is attributable to a reasonable
\n\t      and proper user of the highway as such”.\n<\/p><\/blockquote>\n
A right to use a public highway for the purpose of  carrying
\non  transport  business\t or other forms\t of  trade  such  as
\nhawking, or, to take out a procession through it, is  really
\nincidental  to\ta reasonable user of the  highway  by  the,-
\npublic.\t It would be fully covered by the purpose for  which
\nthe public road is deemed to be dedicated.  But. as  regards
\nthe supposed right to hold a “Public meeting” on a  highway,
\nit  appears  to\t me that  the  following  observations\tfrom
\nBlackwell’s  “Law of Meetings” (9th Edn..p. 5), could  apply
\nequally well here :\n<\/p>\n
\t      “There appears to exist a view that the public
\n\t      has a right to hold meetings for political and
\n\t      other  purposes  on the highway.\tThis  is  an
\n\t      erroneous assumption.\n<\/p><\/blockquote>\n
(1) Alit 1954 S.C. 720.\t      (2) [1965] S.C.R. p. 242.
\n(3) Halsbury’s Laws of England ‘Third Edn.  Vol, 19, p. 73.\n<\/p>\n
295<\/span><\/p>\n
\t      A\t public\t highway exists for the\t purpose  of
\n\t      free passage only, and for purposes reasonably
\n\t      incidental  to  this right.  There can  be  no
\n\t      claim  on\t the part of persons who  desire  to
\n\t      assembly for the purpose of holding a  meeting
\n\t      to  do  so on the highway.  The claim  is\t ir-
\n\t      reconcilable  with the purpose for which\t a
\n\t      highway exists”.\n<\/p>\n
I  do not find it possible to accept the view that a  merely
\nerroneous  assumption  can ever form the basis\tof  a  right
\nunless buttressed by something stronger.
\nNo doubt a meeting held on a highway will not necessarily be
\nillegal.  It may be sanctioned by custom or rest on  permis-
\nsion,  from  an authority prescribed by statute,  to  put  a
\nparticular part of the public highway to an exceptional\t and
\nextraordinary  user for a limited duration even though\tsuch
\nuser may be inconsistent with the real purpose for which the
\nhighway\t exists.   The right has, however, to  be  shown  to
\nexist or have a legal basis, in every case in which a  claim
\nfor  its exercise is made, with reference to the  particular
\npart of the highway involved.\n<\/p>\n
The  Privy Council pointed out, in Lakshmidhar Misra &\tOrs.
\nv.  Bangalal  & Ors.(1), the right to user of  a  particular
\npiece  of land for a particular purpose, such as  holding  a
\nfair, may be part of the customary law of locality.  Thus, a
\ncustomary  right  to  use a  highway  for  special  purposes
\nsometimes may exist provided the ingredients of such a right
\nare  established  although the customary right\tmay  not  be
\nconsistent  with  the  purpose\tfor  which  the\t highway  is
\ndedicated.   Proof of such a customary right attaching to  a
\nparticular  part of a highway must, however, be a matter  of
\nevidence  in every case.  It seems clear to me that  we\t are
\nnot  concerned\twith  such rights as they were\tnot  set  up
\nanywhere  in the case be-fore us, and, even if such a  right
\nhad  been  set\tup,  it\t could\tonly  be  adjudicated\tupon
\nsatisfactorily in a civil suit.\n<\/p>\n
No doubt Dicey’s Law of the Constitution (10th Edn. p.\t271-\n<\/p>\n
272)  contains\ta passage which deals with the\tright  of  a
\nsubject\t to  pass. through a highway and to  proceed  to  “a
\ncommon”\t together  with others in procession and to  hold  a
\npublic\tmeeting,  for political or  other  purposes  without
\nobtaining the prior permission of any authority to  exercise
\nsuch  a\t right.\t  I am, however, unable to  read  into\tthis
\npassage\t the further right of holding a public meeting on  a
\nhighway\t or  public  street.  It seems to me  that  what  is
\nreferred to there is only the right to pass through
\n(1)  AIR 1950 P.C. p. 56
\n296<\/span>
\na  public  thoroughfare in order to proceed to\tand  hold  a
\nmeeting\t on  “a common”.  There may be a right of  using  “a
\ncommon”\t for  the  purpose of  holding\tpublic\tmeetings  by
\ncustom.\n<\/p>\n
In  the Appendix to Dicey’s “Law of the Constitution(),\t the
\nposition  under\t the English law is stated very\t clearly  as
\nfollows
\n\t      “Does there exist any general right of meeting
\n\t      in public places” The answer is easy.  No such
\n\t      right is known to the Law of England.\n<\/p>\n
\t      “……..\t But speaking in general  terms\t the
\n\t      courts do not recognise certain spaces as\t set
\n\t      aside for that end.  In this respect, again, a
\n\t      crowd  of a thousand people stand in the\tsame
\n\t      position as an individual person.\t If A  wants
\n\t      to deliver a lecture, to make a speech, or  to
\n\t      exhibit  a show, he must obtain some  room  or
\n\t      field  which  he\tcan  legally  use  for\t his
\n\t      purpose.\t He  must not invade the  rights  of
\n\t      property-i.e. commit a trespass.\tHe must\t not
\n\t      interfere with the convenience of the  public-
\n\t      i.e. create a nuisance.\n<\/p>\n
\t      “The  notion that there is such a thing  as  a
\n\t      right of meeting in public places arises\tfrom
\n\t      more   than   one\t  confusion   or   erroneous
\n\t      assumption.  The right of public\tmeeting-that
\n\t      is, the right of all men to come together in a
\n\t      place where they may lawfully assemble for any
\n\t      lawful  purpose, and especially for  political
\n\t      discussion-is  confounded\t with  the   totally
\n\t      different\t and falsely alleged right of  every
\n\t      man  to  use  for the  purpose  of  holding  a
\n\t      meeting  any place which in any sense is\topen
\n\t      to the public.  The two rights, did they\tboth
\n\t      exist, are essentially different, and in\tmany
\n\t      countries\t are regulated by totally  different
\n\t      rules.   It  is assumed  again  that  squares,
\n\t      streets,\t or  roads,  which  every  man\t may
\n\t      lawfully\tuse, are necessarily  available\t for
\n\t      the  holding of a meeting.  The assumption  is
\n\t      false.   A  crowd blocking up a  highway\twill
\n\t      probably\tbe a nuisance in the legal, no\tless
\n\t      than  in\tthe popular sense of the  term,\t for
\n\t      they  interfere  with the\t ordinary  citizen’s
\n\t      right to use the locality in the way permitted
\n\t      to him by law.  Highways, indeed are dedicated
\n\t      to  the public use, but they must be used\t for
\n\t      passing  and going along them, and  the  legal
\n\t      mode of use negatives the claim of politicians
\n\t      to  use  a highway as a forum,  just  a,-,  it
\n\t      excludes the claim of actors to turn it
\n(1)  Dicey’s  Law of the Constitution-“8th Edn.\t Note  V  on
\nQuestions  connected with the right of public  meeting”,  p.
\n498-499,
\n297<\/span>
\n.lm15
\ninto  an open-air theatre.  The crowd who collect,  and\t the
\npersons who cause a crowd, for whatever purpose, to  collect
\nin a street, create a nuisance……\n<\/p>\n
Dicey  does deal with a “right of public meeting” as  though
\nit  was an outcome of a right of assembly.  But, he  assumes
\nthat an assembly, which is stationary, as distinct from\t one
\nwhich  is  moving, must be held at a place  where  there  is
\notherwise  a right to hold such an assembly  constituting  a
\n“public meeting”.  If the term “meeting” signified the\tmere
\nmeeting\t of one citizen with another it could be  said\tthat
\nsuch a meeting of many citizens on a particular portion of a
\npublic\thighway\t is included within reasonable user  of\t the
\npublic highway for the purpose for which it was dedicated so
\nlong  as  it does not interfere\t unreasonably  with  similar
\nrights\tof others.  The term “public meeting”,\thowever,  is
\ngenerally used for a gathering of persons who stand or\ttake
\ntheir  seats at a particular place so as to be addressed  by
\nsomebody  who is heard by or expresses the feelings  of\t the
\npersons\t assembled.   If  the  term  “meeting”\twere  really
\nconfined  to  what  may\t be  called  a\tmoving\tassembly  or
\nprocession  a right to hold it could be comprehended  within
\nthe right to take out a procession which should, it seems to
\nme,  be distinguished from what is commonly understood as  a
\nright to hold a public meeting.\t Such a meeting, if held  on
\na  highway, must necessarily interfere with the user of\t the
\nhighway\t by  others who want to use it for the\tpurpose\t for
\nwhich the highway must be deemed to be dedicated.
\nIt  is true that there is a well recognised right of  taking
\nout  processions on public thoroughfares in this country  as
\nan  incident of the well understood right of their  user  by
\nthe  public.   But,  I find it\tvery  difficult\t to  proceed
\nfurther and to hold that such a right could be extended\t and
\nconverted  into\t a  right  to hold a  public  meeting  on  a
\nthoroughfares  The  right to hold a public  meeting  may  be
\nlinked\twith  or  even\tflow out  of  rights  under  Article
\n19(1)(a) to express one’s opinions and 19(1)(b) to  assemble
\npeaceably  and without arms, just as the right to  take\t out
\nprocessions  or\t moving\t assemblies may spring\tfrom  or  he
\ninextricably  connected with these rights, yet, inasmuch  as
\nthe right to hold a meeting at a particular place must\trest
\non  the\t proof of user of that place for the exercise  of  a
\nfundamental right, it appears to me that the right to such a
\nuser must be established in each particular case quite apart
\nfrom  or independently of fundamental rights  guaranteed  by
\nArticle\t 19(1)\tof our Constitution. it\t involves  something
\nmore than the exercise of a fundamental right although\tthat
\nsomething  more may be necessary for and connected with\t the
\nexercise of a fundamental right
\n298<\/span>
\nIn  Hague  v. C.I.O.(1), Roberts, J. no doubt spoke  of\t the
\ngeneral\t right of the public in America to use “streets\t and
\nparks …. for purposes of assembly, communicating  thoughts
\nbetween citizens, and discussing public questions”.  But,  I
\ndo not find here a recognition of a right to hold a,  public
\nmeeting\t on a public thoroughfare.  The passage relied\tupon
\nby  the\t learned Counsel for the appellant  from  this\tcase
\nreferred to rights which could be exercised in “streets\t and
\nparks”.\t A natural interpretation of this passage appears to
\nme  to be that whatever rights can be properly exercised  by
\nmembers\t of  the  public on a  public  thoroughfare  may  be
\nexercised ,there but the others could be exercised in a park
\nwhere  a public meeting could be held.\tWhatever may be\t the
\nlaw in America, we have not been shown any authority for the
\nproposition that there is an unconditional right of  holding
\na  public  meeting  at every public place, much\t less  on  a
\npublic\tthoroughfare  or  street  in  this  country,  as   a
\nnecessary incident of the fundamental rights of either\tfree
\nspeech or of assembly.\n<\/p>\n
If  the\t position rested me.-rely on the  commonly  accepted
\nmeaning\t of a “public street” and the purposes for which  it
\nmust be deemed to be dedicated it may have been possible  to
\nargue  that Rule 7 itself goes beyond the scope of the\trule
\nmaking\tpower  given  by  Section 3 3 (\t 0)  inasmuch  as  a
\nstationary assembly, as a public meeting must necessarily be
\nso long as the assembly last, could not reasonably be within
\nthe  purview of Sec. 33(O) of the Act.\tBut, the  definition
\nof  the\t public street in Section 2, sub. s. 15 of  the\t Act
\nlays down :\n<\/p>\n
\t      2(15)  “Street” includes any highway,  bridge,
\n\t      way  over a causeway, viaduct, arch,  quay  or
\n\t      wharf  or\t any road,  lane,  footway,  square,
\n\t      court,  alley  or passage\t accessible  to\t the
\n\t      public, whether a thoroughfare or not”.\n<\/p><\/blockquote>\n
If we bear this definition in mind, it would appear that the
\npublic\tcould conceivably hold a meeting at a place  falling
\nunder this definition of a street.  If this is so, could the
\nCommissioner not be authorised to regulate it in the  manner
\ncontemplated  by Rule 7 ? I think he could,  provided  there
\nare sufficient safeguards against misuse of such a power.
\nRule 7 is so worded as to enable the Commissioner to give or
\nrefuse\tpermission  to\thold a public  meeting\tat  a  place
\nfalling\t within\t the definition of “a  Street”\twithout\t the
\nnecessity  of  giving  reasons for either  a  refusal  or  a
\npermission.  It will, therefore, be possible for him,  under
\nthe guise of powers given by this rule, to discriminate.  If
\nhe  chooses  to\t give  no  reasons  either  for\t giving\t the
\npermission or for refusing it, it will not be possible
\n(1)  307 U.S. 496, 515-516.\n<\/p>\n
299<\/span><\/p>\n
for a High Court or this Court to decide, without holding  a
\ntrial and taking evidence, what those reasons really are  in
\na  particular  case.  Such a wide power my  even  enable  an
\nexceptional  user  of  a  public  thoroughfare,\t  completely
\ninconsistent  with  the\t rights of the\tpublic\tto  pass  or
\nrepass,\t to be made of it without  sufficient  justification
\nfor it.\t The Commissioner may give permission to use a place
\nfor  a public meeting on a public street, which may  not  be
\nsuitable for it, to influential or powerful persons but deny
\nit to others.  Although, the right to hold a public  meeting
\nat a public place may not be a Fundamental Right by  itself,
\nyet, it is so closely connected with fundamental rights that
\na  power  to regulate it should not be left  in\t a  nebulous
\nstate.\t  It  should  be  hedged’  round   with\t  sufficient
\nsafeguards against its misuse even if it is to be  exercised
\nby  the Commissioner of Police.\t He ought to be required  to
\ngive reasons to show why he refuses or gives the  permission
\nfor such exceptional user of a “street” as it is defined  in
\nthe  Act.  The rule should make clear the  circumstances  in
\nwhich  the permission may be given or  refused.\t  Therefore,
\nalthough I have had my serious doubts as to whether we\tneed
\ndeclare Rule 7 invalid for a contravention of Art. 19 ( 1  )\n<\/p>\n
(b)  , of the Constitution, yet, on fuller consideration,  I
\nrespectfully  concur  with  Mylord  the\t Chief\tJustice\t  in
\ndeclaring  it  invalid because it is capable of\t being\tused
\narbitrarily   so   as  to  discriminate\t  unreasonably\t and
\nunjustiably and\t thus  to affect the  exercise\tof  rights
\nconferred  by Articles 19(1) (a) and (b) without  sufficient
\nmeans  ‘of control over possible misuse of power.  The\tRule
\nof  law our Constitution contemplates demands the  existence
\nof adequate means to check possibilities of misuse of  every
\nkind  of  power lodged in officials of the State.   I  would
\nprefer to ‘strike it down for contravening Article 14 of the
\nConstitution  although, if its’ repercussions on the  rights
\nguaranteed  by\tArt, 19(1)(a) and (b) were also\t taken\tinto
\naccount,  it  could  be\t struck\t down  as  an\tunreasonable
\nrestriction on those rights as well.\n<\/p>\n
For  the reasons given above, I respectfully agree with\t the
\norder proposed by Mylord the Chief Justice.
\nV.P.S.\n<\/p>\n
2-L498 Sup CI\/73
\n300<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Himat Lal K. Shah vs Commissioner Of Police, … on 15 September, 1972 Equivalent citations: 1973 AIR 87, 1973 SCR (2) 266 Author: S Sikri Bench: Sikri, S.M. (Cj), Ray, A.N., Reddy, P. Jaganmohan, Mathew, Kuttyil Kurien, Beg, M. Hameedullah PETITIONER: HIMAT LAL K. SHAH Vs. RESPONDENT: COMMISSIONER OF POLICE, AHMEDABAD […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-237224","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHimat Lal K. Shah vs Commissioner Of Police, ... on 15 September, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/himat-lal-k-shah-vs-commissioner-of-police-on-15-september-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Himat Lal K. 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