HIMAT LAL K. SHAH v. COMMISSIONER OF POLICE, AHMEDABAD & ANR.

266 A HIMAT LAL K. SHAH _v._ COMMISSIONER OF POLICE, AHMEDABAD & ANR. _September_ 15, 1972 [S; M. SIKJU, C.J., A. N. RAY, P. JAGANMOHAN REDDY, K. K. MATHEW AND M. H. BEG, JJ.] B _Co11stit11tio11_ _of_ _India._ 1950, _Art.I'._ 19(1) _(a),_ _(b)_ _and_ _(d)-Right_ _af_ _citizens to hole/ puhlic nieetings_ _on_ _public_,<;lre~t.r-lf _fundanzental right·_ _Bombay Police_ _Act._ 1951, _s._ 33(1) (OJ _and r._ 7 _of R11/es_ _framed there•_ _under-Rule_ _requi'ring prior pennission for holding meetings-Rules_ _if_ ultra vires _section-Rule,_ _if_ _violates fundanzental rights._ ' . Th~ appellant, whose application for permission to hold a public meet· ing en a public street was rejected. contended in a writ petition in the C, High Court, (I) that the rules framed. by the first respondent under s.33(1) (0) of the Bombay Police Act, 1951, were _ultra vires_ the section ·in that the sub-section does not authorise framing of rules requiring prior permission for ho.lding meetings; and (2) that the sub-section and the rules were violative of the fundamental rights guaranteed under Art. )9(1) (a) and (b) of the Constitution. The High Court .dismissed the petition. Jn appeal to this Court, D HELD : _(per_ _Curit1111)_ : Rule 7 of the rules is void. [283F; 293E; 2990] _(Per_ S. M. Sikri, CJ., A .• N. Ray and P. Jaganmohan Reddy,.JJ) : C !) The impugned rules are not _ultra_ _vires_ s. 33 (I) in so far as they require prior permission for holding meetings. r2SOB-CJ Sub-section 33(1) (0) proceeds on the basis th,.t the public has a right. E to he.Id assemblies and tukc processions on and along streets though It is necessary to _re11u/ute_ the conduct and behaviour or action of persons con•tituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word 'regulate' v.ou!O include the power to prescribe that permission in writing should be taken a few days before the holding of a meeting on a public street. The impugned rules do not prohibit the holding of meetings but only F prescrihe that permission should be taken. [275B-E) (2)(a) Section 33(1) (0) does not viola.le Art. 19(1) (b), and Art. 19 ( l) (a) is noJ attracted to the facts of the case. The sub-section has nothing to do with the formation of assemf,Jies and prOCOSllions but only Ueal'i \\·ith persons as members o'f assemblies and processions. The sub~ 1:iection enables the Con1n1issioner to n1ake rules to regulate .. the assemblies and processions. Without such rules, in crowded public streets, it would he iplpossible for citizens to enjoy their various rights. Indeed, the section '/1'°Y be said to have been enacted in aid of the rights under Art. 19 (!) ia) and 19(1) (d). f281B-D) G .. ( h) h could not he contended hy the respondent that as under the Common I.aw of England no one has a right to hold a meeting on a highv.ay. and the sacne law prevails in Jndia. and therefore, the word 'rcl"ulate' means a right to prohibit the holding of a meeting also:· In India, the law has developed on slightly different lines, and a citizen in ff India ·had. before the Constitution .. [1] a right to hold meetings on public <trier< <Ubjcct to the control of the appropriate authority regarding .the 'time ~ind phtce of the meetings and suhject to considerations of public **A** **B** c D I F G H H. L. SHAH _v._ COMM&. OF POLICE 267 **order.** **While** **prior** **to** **the** **coming** **ii::tto** **force** **of** **the** **Constitution,** th~ right to assemble eould have been abridged or taken away by law, after the com:ng into force of the Constitution, the right earinot be abridged oxcept by imposing reasonable restrictions. There is nothing wrong . in requiring prior permission to be obtained before holding a public meeting on ii public street, for the right which ftows from Art. 19( I) (b) i• not a right to hold a meeting at -any place and time. But, the State can only make regulations in aid elf the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. In the present case, however, r. 7 docs not g;ve any guidance to the officer authorised by the Commissioner of Police as to the circumstances in which be can refuse permission to hold a public meeting. The officer cannot be expected to read .the marginal note to s. 33 or to look at the ;cheme of the Act to spell out the limitations on h:s discretion. Thorc· fore. the rule. which. confers arbitrary powers on the authorised officer must be struck down. The other rules which merely lay down the proce du~e for obtaining permission CBiRROt survive, but, it is not necessary to ;tnke them down. for, without r. 7, 'they cannot operate. Rules. 14 and 15 deal both with. proces~ions and public meetings and their validit)\ .. in so far as processions are concerned, is not affected ['810-G· '"'H· 183A..C] . - ' -~- . _Parthasaradiayya1111i;r_ v. _Chinnakrishna_ _Ay,vanRar,_ l.L.R. 1.1882] _5_ Mad. 304, _S11ndram_ _Clretti_ v. _The_ _Q11een_ I.L.R. [1883] 6 Mad. 203, _S11da11opa._ _cliariar_ v. _A. Rama_ _Rao._ l.L.R. [,1903] 26 Mad. 376. _Vijiragh•·va_ _Chariar_ v. _Emperor,_ I.L.R. 11903] 26 Mad, 554 _Hasan_ v. _Muhameed Zaman,_ 52 I.A. 61, _Clrand11_ _Sajan_ _Patil_ v: Ny~halclrand, A.l.R. 1950 Born. 1.92, _Shaikh_ _Piru_ _Bux_ v. _Kalandi_ _Pati,_ (Civil Appeal No. 25 of 1966 dated October 29, 1968. _Saghir_ _Ahmad_ v. _State_ _of_ _U.P.._ [1955] 1 S.C.R. 107. _C.S.S. Motor Service_ v. _State_ _of_ _Madras,_ [1952] 2 M.L.J. 894, _Rail·_ _way_ _Board_ v. _Narinjan_ _SinRh._ [1969] 3 S.C.R. 548, _Babula/_ _Parara_ v. _State_ _of_ _MaharashtNI._ [1961] S.C.R. 423, _Cox_ v. _Louisiam1._ 13 L. Ed. 21. 471. _Ha111w_ v. _C.1.0._ 83 L. Ed. 1423. _Blackwtll's Law_ _ot_ _MeetinR.•_ (9th Edn. p. ~) ""cl _Dice.r's_ _Law_ _of_ _t/1<•_ _Constitution_ (10th Ed.) p.p. 271-72, referred to. _!Per_ K. K. Mathew J.): (I) Whats. 33 (!) (0) provides is making of rules for regulating' the conduct and behaviour, or action of persons cons,ituting assemblies. The sub~ection pre-supposes an assembly an~ authorises the making of rules for 'regulating' lhe conduct, behaviour or action of the persons who arc mrmbcrs thereof. A power to regulate implies the continued existence of· that which i' to be regulat<!d. The power _narma/ly_ does n'ot include a power tci prohibit. The iuxtaposition of the words 'regulating' and 'prohibiting' in s. 33 (I) (x) and the expr~s grant of a oower to prohibit to the rule making authority ins. 33(1Hol and (q) ;:n<Ji~ate that the context in which r. 7 occurs shows that a power to prohibit is not contemplated by the power to regulate. But r. 7 impliedly gives power to the CommisSioner of Police to refuse permission to hold a public meeting. Therefore, r. 7 is _11/trc._ _vires_ s. 33(1 )(0). [285B~~· F·H] _Toronto_ v. _Virgo_ (1896] A.C. 88. _Ontario_ v. _Cwada_ [1896] _A.C._ 348 and _Birminglu1m_ _anti Midland Motor Omnibus_ _Co._ _Ltd._ v. _Worce"tershire_ _Co11nt,v_ _Co11ncil,_ [1967] I W.L.R. 409, referred to. ' 12) Also the right to hold public meeting in a public street is a fundamental right and r. 7, which gives an unguided discretion dependent on the subjective whim of the authority. to grant or refuse permission to hofd such a meeting, cannot be held to be valid. [293El Freedom of a!Sembly is an essential eleme:~t of a democratic system. The basic assumption in a democratic! polity is that Government s)lall he 268 SUPREME COURT REPORTS [1973] 2 s.c.Jt. based Qn the consent of the governed .. But the consent of th,e governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. · At the root of this concept lies the citizen;' right to meet face to face with others for the discussion of their ideas ~.Problems, and public streets are the 'natural' plaoes for expression of opimon and dissemination of ideas. [291E-H] Public procession are _prima facie_ legal but a public meeting is not one of the uses for which highways have been dedicated. Public meeting in open places $d public street< forms part o~ the tradition of ou~ national life. In the pre-Independence days such ineetillg.; have been held in open spaces and publJc streets and the people have come to regard it as a part of their privileges and immunities. The framers of the .O>nstitutfon were aware that public meeti:ngs were being held in public ~treets and that the public have come to regard it as part of their rights and privileges as citimlS. pcrhap• erroneously, . but this error was grounded on the ~olid **c<1uhstratum** **of** **continued** **practice** **over** **the** **years** **and** _**co1nnutnis**_ _**e"or**_ _**facit**_ _ju.<._ In the U.S. ~lso the basis of a citizens privilege to use streets and park• **fOr** **commun·ication** **of views,** **was** **the** **con•inued** _**de facto**_ **excrci!"t** **of** **the** right over a number of years, and fundamental rights in India of free speech :ind ;issembly arc modelled on lhc Bill of Righls of the U.S. Constitutiori. Bui a public meeting will be a nuisance if it appreciably obstructs the roa<i. The real problem is ree()nciling the city's function of providing for the **exigcncici;** **of** **traffic** **in** **its** **streets** **and** **for** **the** **recreation** **of** **the** **public** **i--:** **it:'** park.•. wilh it.• other ohligations of providing adequate places fOr public discus.ion in order lo safeguard the guaranteed right of public assembly. **The** **sta1C** **and** **loc<1I** **authoritic'\ have a virtual rnonOpoly** **of every open** ~pace at which an outdoor meeting can be held. and they can close the. streets '1nd park• enlirelv 10 public meetings. the practical result would be that it would he impossihlc lo hold any opcn·air meetings in any lorge city. a11d the conferment of a fundame1r.·tal right of public assembly would then become an exercise in futility. [290A-C; 292A-HJ **However.** **the** **power** **of** **the** **appropriate** **authority** _**t·o**_ _**in1pose**_ retaonubl~ _**r£'1J1tlatio11\',**_ **in** **order** **to** **assure** **the** **safety** **and** **convcnicncl!** **of** **fhc** **people** **in** the u•c of public highways has never been regarded as inc.~11,istent with the furt!amental right of assembly. A system of licensin~ a• regarus .the time arid the manner of holding public meeting.• on ptoblic streets will n.ot he regarded as an abridgement of the fl>.n<famcntal right. of public assembly or of free speech if definite standards are provided hy the law for the guidance of the liccming authonty. But 'in r. 7, there is no mention of the rca<ons for which an application for a licence can be rejected. The **vesting** **of** **such** **unrcgU1atcd** **discretionary** **power** **in** **a** **licensing** **outhority** ~is always hccn considered "'. bad. [293B-DJ _St1Rhir_ _Alimud_ v. _The_ _Swtc'_ _of_ _U.P._ t111<I _Others,_ Ll965] I .Sl.C.R. 707, _Ex-partr Lewis,_ 11888] 21 Q.B.D. 191. _Ref/._ v. _Cunin11hame_ _Craham_ _and_ _Bums._ ( 1886-90) Cox's Cr. Law Cases, Vol. 16. 420. ti 912.] 2 Cars. 674, ·677, Gill v .. _Carso11_ _and Nield,_ [1917] 2 K.B. 674, 677, _De_ _MorJ?all_ v. _Metropo/ita11_ _Board_ _of_ _Works._ [1880] 5 ·Q.B.D. 155, _Heatly_ v. _Gil/banks._ T 1882] 9 Q.B.D. 308 _Burden_ v. _Rill/er am/ another_ ( 191 I) LR. I K.B. J77. _**Tl<1rriso11-**_ **v.** _**Duke of**_ _**Rutl<1nd,**_ **(1893)** **1 Q.B. 142,** _**Manzur**_ _**Hasan**_ **v.** Mu~ _lia11111uu/_ _Zt1111a11_ 52 I.A. 61, _Clra1tdu_ _Sa!w Patil_ v. _Nyalwl_ _Clia11d_ A.LR. 1950 Born. 192, _Lowdem_ v. _Keavem•y,_ (1903) 2 l.R. 82, _Davi.I'_ v. _Me"sa-_ _rl111setts._ 167 U.S. 43 ( 1097) _Ha11ue_ v .. _CJ.0._ 307 U.S. 496, _K1111z_ v. _New_ _York._ 340 U.S. 290 _S'111ttlcrn<ortlr_ v. _BirminJ?lram,_ 394 U.S. 147, _Express_ _Newspapers (Private) Ltd. and Another_ v. _The Union_ _of India and Others._ f1959] S.C.R. 12. _Niemotko_ v. _Maryland,_ 340 U.S. 208, _NAACR_ v. **B** c **D** E F G **H** H •. L. SHAH _v._ OOMMR. OF ·POLICE 26& B c **D** E F G H _Bu11on,_ 371 U.S. 415 (1968), _Dicey"s_ _Law_ _of_ _Constitution_ (10th Ed.) pp. 271-72, _Halsbury"s_ _Law_ _of_ _England (Hai/sham_ Ed.) v'ol. 16 p. 362 _Public Meetings and Processions by Good/lart, Cambridge_ _Law_ _of Joumal_ (1936-38), Vol. 6, 171 referred to. _(Per_ M. H. Beg, J.): (1) In view of the definition of public street in s. 2(15) of the Bombay Police Act, which is wider than the <pmrnonly ae1:epted mean;.rrg of a 'public street' and the purpo,es for which it is deemed to be dedicated, the public can hold a meeting at a place falling under the deliniti-On of street. The term 'public meeting' is generaUy used for a gathering of persons· who stand or take their seals at a particular place so as to be addressed by somebody. Such a meedn¥, _it_ held on a highway, must nece:sarily interfere with the user of the highway by others who wa:at to use it for the purpose for whi~h the highway is dedicated. If this is so. the Commissioner of Police could be authorised to regulate it in the manner contemplated by r. 7, provided there are sufficient safeguards against misuse _of_ such a power. [297C-E; 298E-G] . ( 2) In the matter of holding public meetinj!S on a public street tho law in India is not different from the law n E:ngJand. There is no sep~ate right of ·public meeting' Jet alone a constitutional fundamental right attached to public streets which are dedicated for the particular purpose of passing and repassin¥. Any recognitio,n of a right to hold a meetmg will obviously be inconsistent with the purpose for which public streets are dedicated. A meeting held on a highway will not necessarily be "illegal. It **may** **be** **sanctioned** **by** **custom** **or** **rest** **on** **permission;** **but** **a** **mere** **errcmeous.** hold a public meeting may be linked with or CVf'.Jl flow out of rights under Art. 19( I) (a) and (b), yet the right to hold a meeting at a partiC)Jlar place must rest on the proof of user of that place for the exercise of. a fundamental right and, the right to such a user mu·.t be established in each particular case quite apart from and independentlv of the fundamental rights, guaranteed by Art. 19(1). The law in U.S. as laid down in Hague v. C.1.0. (307 U.S .. 496) also appears to be that whatever rights can be properly exercised by members of the public· on a public thoroughfare may be exercised there but the others could be exercised in a park where a public meeting could be held. Even otherwise, whatever may be the law in U.S., there is no authority for the proposition that ther~ is an uncbnditional right of holdi_ng a public meeting at every public place, much less on a public thoroughfare or street in India as a necessary incident Cf{ the fundamental rights either of free speech or of assembly. [2940-G; 295B-D: 297E-H] Although. the right to hold a public meeting at a public place may not be a fundamental right by itself, yet, it is so closely connected with fundamental rights that a power to regulate it should not be left in a nebulous. state. II should be hedged round with sufficient safeguards aga~t its misuse even if it "is to be exercised by the Commissioner of Poliqe. But, r. 7 is so worded as to enable the Commi<sioner to give or refuse permission to hold a public meeting at a place falling within the definition of "a street" without giving reaso:i>s for either a refusal or a permission. It will, therefore. be possible for him, under the gui•e 'of powers given by this rule. to discriminate, when the rule does not indicate the circumstances in which perm"ission mav be given or ~used. The rule of law that the C®stitution contemplates demands the existence of adequate means to check possihili· assumption can never form the basis of a right unless buttressed by some- 1 thing •lrongcr. It is also true that there is a well-recognised right of taking out processions on public <horoughfares in Jnpia as an incident of the wellunderstood right of their user by the public. But, the right to take out a procession is different from the right ta hold a public meeting and the former could cot be converted and oxpanded into the latter. The right t<> _**270**_ SUPREME COURT REPORTS [1973] 2 S.C.R. tic, of misuse of every kind of power lodged in officials of the St-ate. Therefore. the rule should be struck down as contraveni:ng Art. 14. although, if the rcpercuss:ons on the rights guaranteed by Art. 19(1)(a) and ibl **·\\ere** **<!1** **o** **taken** **into** **account,** **it** **could** **be** **struck** **dO\\'n** **as** **an** **unreasonable** rcstrictioo on those rights as well. [298G-H: 299A·uJ _S<1g/1ir_ _Ahmed_ v. _St<1te_ _of_ _U.P .._ A.LR. 1954 S.C. 7:0, _Municipal Board ._ _.'>1a111rla11r_ v. _Shri Mailadeoji_ _Mailarc.j,_ [1965] 2 S.C.R. 242. _Lahhmidilar_ _Misra_ & _Ors._ v. _Benga/a(A.l.R ._ . 1950 P.C. 56 _Halsbury's Lah's_ _of_ _Enghmd_ (3rd Ed.) Vol. 19, p. 73 _Blackwell's Law_ _of Meetings_ (9th Ed.) p. 5 and _Dicey'.' Law_ _of Co11stit11tio11_ (10th Ed.) pp. 271-72, referred to. **A** CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 152 of 1970. Appeal by certificate from the juC:gment and ordkr dated c December 12, 1969 of the Gujarat High Court at, Ahmedabad in Special Cri1ninal Application No. 42 of 1969. _M._ _K._ _Ramamurthi,_ _J._ _Ramamurthy,_ for the appellant. _H,_ _Sen,_ _P._ _Ramesh_ and _S._ _P._ _Nayar,_ for the respondents. The Judgment of Sikri C.J., Ray and Jaganmohan Reddy. JJ. was delivered by Sikri. C.J. Mathew, and Be2, **JJ.** delivered separate opinions. **Sikri,** **C.J.** This appeal by certificate granted by the Gujarat High Court raises an important question as to the· right of citi· zens in India to hold public meetings on public streets, and the restrictions which can be placed on that right. On August 30, l 969 the appellant made an application to the Police Commissioner, Ahmedabad, for permission to hold ;1 public meeting near Panch Kuva Darwaja, Ahmedabad. on September 4, 1969 at 8 .00 p.m. in connection with the All India students' strike sponsored by All India Students Federation, to be -0rganised on September 5, 1969. <!>n September 2, 1969, this permission was refused because the ·:application was not sent 5 days before the day of the meeting as required by notification of the Commissioner of Police. No. 982/66 dated February 15, 1966. "The appellant was also informed that ·"holding a meeting with or without loudspeaker, without the permission, amounts to an offence." On August 30, 1969 the appellant had also applied for permission to hold another public meeting on September 5, 1969. The Deputy Police CoJT'_'Uissioner informed him on September 2. 1969. that the penni~sion "cannot be granted inasmuch as a meeting was held on 7-e-69 under a similar permission where· after certain elements had indulged in rioteering :md caused mis· chief to private and public properties, regarding which a crime **D** E **F** **G** **H** ## I A 8 c D E F G H H. L, .SHAH _v._ COMMR, OF POLICE _(Sikri,_ C.J.) 271 also has been registered". He was also informed that "in vie\\ of the present position, it is not possible to grant such permission in order to maintain law and order." He was further asked to note that "holding meeting with or without a- loudspeaker witl!.ou·t permission amounts to an offence." :Tue appellant thereupon filed a petitio1~ under Art. 226 of th~ Constitution, on September 3, 1969, praymg _inter_ _alia._ ( l) to quash the orders mention~d above; (2) to declare s.33(o) read with s.33(y) of the Bom public meetings on September 4, 1969 and Septem ber 5, 1969 without obtaining permission from the respondent. By the time the case was heard, the two in1pugned orders bad become infn1ctuous by lapse of time. The High Court, however. examined the other contentions raised before it because it felt that th_e organization, of which the appellant was an office bearer, had to organise meetings on a number of occasions and every time the question of applying for permission would arise. The relevant statutory provisions that applied to Ahmcdabad are as follows : _Bombay_ _Police_ _Act,_ 1951 "33 ( 1) The Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, a)ter or rescind rules or orders not inconsistent with this Act for; - 0 . - 0 - _c_ (n) licensing, controlling or, in order to prevent the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers in the vicinity, prohibiting the playing of music, the beating of drums, tom-toms or other instruments and blowing or sounding of horns or other noisy instruments in or near streets or public places; ( o) regulating the conduct of and behaviour or actioD of persons constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes by which, the order in which and the times ai which the same may pass; bay Police Act (hereinafter called the Act)- void~ ( 3) to declare the rules Nos. 7 to II, 14 and 15 of the Rules for Processions and Public Meetings hereinafter called the Rules) void; and ( 4) to declare that the petitioner was entitled to hokl - - - - - 272 SUPREME COURT REPORTS **jl973]** 2 S.«;:.R. . ( y) prescribing the procedure in accordance **with** which any licence or pennission sought to **be** obtained or required under this Act should be applied for and fixing the fees to be charged for any such licence or permission." In exercise of the powers, conferred by Clauses (n), (o) and ( _y)_ of sub-section ( 1) of Section 33 of the Bombay Police Act, 1951 (Born. Act XXI! of 1951) read with Section 4 of the Bombay State Commissioners of Police Act of 1959 (Born. Act LVI of 1959 ), the Commissioner of Police, .Ahmedabad . City, v.ith the previous sanction of the Government of Gujarat, made the following rules for conduct. behaviour and action of persons desirous oCtonducting processions or holding or convening public meetings in the areas covered by the Commissionerate of Police, Ahmedabad City. Rules (l ) to ( 6) deal with processions. Rule (6) may be reproduced. "6. Subject lo the provisions of the foregoing rules and subject to the imposition of such conditions as may be deemed necessary, a pennission shalt be granted, unless the officer concerned is of opinion that the procession proposed to be organised or taken out shall be prohibited, in which case he shall forth with refer the application together with his report thereon for the orders of the Commissioner of Police, Ahmedabad City. No permission shall be required for a bonafide religious or marriage procession consisting of less than I 00 or a funeral procession of a person who has died a natural death." Rules ( 7) to ( 13) deal with holding of public meetings. Rule (l 4) and Rule ( 15) apply to both processions and public meeting. Rules'(7), (8), .(9), (11) and (14) are reproduced below. Rule (15) makes the infringment of rules and conditions punishable. "(7). No public meeting with or without loudspeaker, shall be held on (he public street within the jurisdiction of the_. Commissionerate of the Police. Ahmedabad City unless the necessary permission in writing has been obtained from the officer authorised by the Commissioner of Police. ( 8) . The application for permission shall be made in writing and shall be signed by the persons who intend to organise or promote such a meeting. **A** **B** c **D** E **F** G **H** B _fJ_ E G ;H H. L. SHAH _v._ COMMR. OF POLICE _(Sikri,_ _C.J.)_ 273 ( 9). The application shall be made to the officer authori3ed to issue permission not less thaJJ 5 days.before the time, at which the public meeting is to start. (I I). The applicant or his representative shall remain present during the Public Meeting with the per mission granted to him :md shall produce the same for inspection by any Police Ollicer whenever required. (14). The organiser or organisers of the procession or the public mcctin'! shall on demand furnish a security of such amount as fixed by the Commissioner of Police or any officer authorised by the Commissioner o, - -.1.1ce in this behalf, for the due observance of the conditions of the permission." Before the High Court, it was urged on behalf of the appellant as follows : "(I). Sub-clause _(_ o) of section 33 (I) of the Bombay Police Act does not empower the Commissioner 0f Police to frame rules requiring any person to obtain prior permission for holding a meeting and the rule so frap1e<l is in excess of the rule making power and is Consequently invalid. ( 2) Sub-clause ( o) of Section 33 (I) of the Bombay Police Act suffers from the vice of excessive delegation of legislative powers, and is _ultra_ _vires_ Article 14 in that it confers uncontrolled, naked and arbitrary powers on the Commissioner of Police to grant or refuse permission at his sweet will and pleasure without laying down any guiding principles. (3) Sub-clause (o) of section 33(1) and the Rules framed thereunder are _ultra_ _vires_ Articles 19 ( 1) (a) and J 9( I) (b) inasmuch as· they put a total ban on the fundamental rights of freedom of speech and freedom to assemble pea~eably; and even if it be held that the rules put restriction on the exercise of the said fundamental rights, the same are unreasonable." The High Court held, regarding the first ground, that the \\Ord 'regulating'· "implies prohibition and, therefore, the rule providing for prior pennission which may enable the Commis>ioner of Police to prohibit a meeting from taking place would foll within the ambit of clause ( o). The provision contained in clause (y) would not abridge the meaning of the word 'regulating' in clause ( o) ." i 9-L348Sup.C.T./73 274 SUPREME COURT REPORTS [1973] 2 S.C.R. The second contention was repelled by the High Court on the ground that "a detailed examination of the various provisions of the Act clearly indicates the policy underlying thji Act and provides clear guidance to the officers who have to exercise powers of framing Rules conferred on them." The High Court observed that "il cannot be said that clause ( o) confers naked, uncontrolled and arbitrary powers on the Commissioner of Police to grant or refu,~ permission at his sweet will and pleasure." Regarding the third ground it was held that. the Rules imposed reasonable restrictions and were covered by Art. 19(2). The learned counsel for the appellant submitted before us the following propositions : ( 1) Rules 7, 13. 14 and 15 promulgated by the Commissioner of Police on October 21, 1965 are _ultra_ _vires_ section 33 (1 )( o) of the Bombay Police Act, 1951, as in force in Gujarat, inasmuch as the said provisions do not authorise framing of rules requiring· the prior permission for holding meetings. (2) Section 33 ( 1) ( o) of the Act is unconstitutional as it infringes Art. 19(1)(a) and (b). The restrictions are wide enough to cover restrictions both within and without the limit of pennissible legislative action affecting such rights. (3) In any event the section and tl;g rules impose unreasonable restrictions on the fundamental right guaranteed to the appellants under Art. 19(l)(a) & (b) because (a) the ambit of power conferred on the Executive is very large and uncontrolled; (b) such power is open to be exercised arbitrarily; A B c D E F _G_ ( c) the restrictions imposed are excessive; (d) the procedure and manner of imposition are not fair and just; ( e) there are no sufficient safeguards againstthe mis use of power conferred and there is no right of representation; (f) the section and the rules suffer from vagueness: (g) the restrictions are not narrowly drawn to pre vent -the supposed evil and do not satisfy the touchstone for legislation dealing with basic freedom, namely, precision; (h) in delegating powers to the Executive to impose H restrictions the legislature has not provided adequate standards to pass scrutiny by accepted tests. B c _.D_ E F G H H. L, SHAH _V._ COMMR. OF POLICE _(Sikri, C.J.)_ 275 ( 4) The impugned section and rules violate Art. 14 as they enable the authorities to discriminate between persci'ns without just classification. ( 5) Section 33 (1) ( o) suffers from the vice of excessive delegation of legislative powers and is theref<;>re void. Coming to the first point raised by the learned counsel, it seems to us that the word 'regulating' in s. ~3 ( o) would include the power to prescribed that permission in "'iiting should be taken a few days before the holding <•l a .meeting on a public street. Under s. 33 ( o) no rul~ coulll be prescribed prohibiting all meetiAgs or processions. Tho section proceeds on the basis that the public has a right to held assemblies and processions on and along streets though it is nece1>sary to regulate the conduct and behaviour or action of persons constituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. The word 'regulate', according to Shorter Oxford Dictionary, means, "to control, govern, or direct by rule or reg11lations; to subject to guidance or restrictions". fhe impugned Rules <lo not prohibit the holding of meetings but only prescribe that permi1sion should be taken although it is not stated on what grounds permbslon could be refused. We shall deal with this aspect a little later. It was urged before us that according to the Common Law of England no one has a right to hold a meeting on a highway and the same law prevails in India and, therefore, we should read the word "regulating" to mean a right to prohibit the holding of a meeting also. Reference was made to Halsbury, Third Edition, volume 19, where it is stated that "the right of the public is a right to pass along a highway for the purpose of legitimate travel, not to be on it except so far as their presence is attributed to a reasonable and proper use of the highway as such. (page-73, para 107). On page 276 it is stated that "the right of passage does not include the right to race upou the highway, and to do so is an indictable nuisance, nor is there any right to organise or take part in a procession or meeting which naturally results in an obstruction and is an unreasonable user of the highway." In the footnote it is stated that "the right of the public on the highway is a right of passage in a reasonable manner and there is no right to hold meetings in the highway." Reference was also made to Blackwell's Law of Meetings (9th edn. p. 5), wherein it is stated as follows : "There appears to exist a view that the public has a right to hold meetings for political and other purposes 276 SUPREME COURT REPORTS [1973) 2 S.C.R. on the highway. This is un erroneous assumption. A public highway exists for the purpose of free passage and free passage only, and for purposes reasonably incidental to this right. There can be no claim on the part of persons who desire to assemble for the purpose of holding a meeting to do so on the highway. The daim is irreconcilable with the purpos~ for which a highway exists." It is further stated at p. 6 as follows : "Although there is no right on the part of the public to hold meetings on a highway, a meeting is not necessarily unlawful because it is held on a highway. Thus, it has been held that a meeting on a public highway may be a lawful meeting within s. 1 ( 1) of the Public Meeting Act 1908. Whether or not it is unlawful depends upon the circumstances in which it is held, _e.g.,_ whether or not an obstruction is caused. But the only dear right of the public on the highway is the right to pass and repass over it, although many other things go by tolerance." We may mention that Dicey took a slightly different position. According to Dicey'os Law of the Constitution (Tenth Edition) pages 271-72 : "The right of assembling is nothing more than a result of the view taken by the courts as to individual l!berty of person and individual liberty of speech. There is no special Jaw allowing A, B and C to me~t together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B so that his talk is not libellous or seditious, . the right of B to do the like, and the existence of the san1e rights of C, D, E and F, and so on _ad infinitum,_ lead to the consequence that A, B, C, D and a thousand or ten thousand other persons, may (as a general rule) meet together in any ?lace where otherwise• they each have a right to be for a lawful purpose and in a lawful manner. A has a right to walk down the High Street or to go on to a common. .B has the same right. C, D and all their friends have the same right to go there also. In oth~r words, A, B. C and D and ten thousand such, have a right to hold a public meeting; and as A may say to B that he thinks an Act ought to be passed abolisl1ing the House of Lord~. or that the House of Lords are bound to reject any bill modifying the Consti ,\ ll c D E }" G H A n c D E F G H H. L, SHAH _V._ COMMR. OF POLICE _(Sikri,_ C.J.) 277 tution of their House, and as B may make the same remark-,to any of his friends, the result ensues that A and ten thousand more may hold a public meeting either to support the Govel'D.ffient or to encourage the resistance of the Peers. Here then you have in substance that right of public meeting for political and other purposes which is constantly treated in foreign countries as a special privilege to be exercised only subject to careful restrictions". It is not necessary to refer to the English authorities on the point because in India the law has developed on slightly different lines, especially with regard to processions; and the Statutes of the country have treated the right to take out processions and hold meetin~s on streets in a similar fashion. In _l'artlwsaradiayyanagar_ v. _Chinnakrishna_ _Ayyangar(')_ it was held that persons were "entitled to conduct religious processions through public streets so that they do not interfere with the ontinary use of such streets by the public and subject to such directions as the Magistrates' may lawfully give to prevent obstruction of the thoroughfare or breaches of the public peace." Reference was made in this judgment ( p. 306) to an earlier decision where the Sadar Court, in Appeal 141 of 1857 (M.S.D. 1857, p. 219) had declared that "the right to pass in procession through the public streets of a town in such a way as the Magistrate might not object to as dangerous to the public safety, was a right inherent i)l every subject of the state." In _Sundram_ _Chetti_ v. _The_ _Queen("),_ after referring to certain ordrrs of the Govcrnmfot and judicial opinion, the Court observed: " Both acknowledged the existence in every citizen of the .right to use a public highway for processionai as well as for ordinary purposes. Both recognised in the Magistrate a power to suspend and regulate, and in the police a power to regulate the exercise of the right." Jn _Sadagopacharlor_ v. _A._ _Rama Rao("),_ the head-note reads: "The right to conduct religious processions through the public streets is a right inherent in every person, provided he does not, thereby, invade the rights of (I) LL.R. (1882) _5_ Mad. 301; 309. _m_ I.LR. (1883) 6 Mad. 203; _ZIS;_ 219. (3) l.L.R. (1903) _26_ Mad. 376. 278 SUPREME COURT REPORTS [ 1973] 2 S.C.R. property enjoyed by others, or cause a public nuisance or interfere with the ordinary use of the streets by the public, and subject to directions or prohibitions for the prevention of obstructions to thoroughfares or breaches of the peace." In _Vijiaraghava Chariar_ v. _Emperior(1)_ there was a difj'erence of opinion. Benson, J., observed at page 585 : "No doubt a highway is primarily intended for the use of individuals passing and re-passing along . it in pursuit of their ordinary avocations, but in every country, and especially in India, highways have, from time immemorial, been used for the passing and re-passing of processions as well as of individuals and there is nothing illegal in a procession or assembly engaging in worship while passing along a highway, any more than in an individual doing so." Benson, J. further observed at p. 587, as follows : "The practice of using the public highways for religious processions has existed in India for thousands. of years. History, literature and tradition all tell us that religious processions to the village shrines f6nned a feature of the national life from the very earliest times. That alone is sufficient to raise a presumption that it is lawful and to throw on those who allege it to be unlawful the onus of showing that it is forbidden by law, but this it admittedly is not. The law recognizes the 'use of the highway by processions as lawful, and gives the Magistrate and superior officers of police power to direct the conduct of assemblies and processions thr()ugh the public streets and to regulate the use of music in connection with them, and to prevent obstructions on the occasion of such assemblies and proces- · sions ...... The law recognises religious processions as lawful just as much as it recognizes other processions ........ It is more reasonable to suppose that he w0uld dedicate the highway to the purposes for which, in accordance with the custom of the country, it would he required by the people. The penal law of India extends a special protection against voluntary disturbances to all. asseml>lies lawfully engaged in religious worShip. A procession is but, an assembly in motion and if it is a religious procession, it is, .in my judgment, (I) I.LR. 11903) 26 Mad. _554._ ,\ B c I) E F G H. L. SHAH _v._ COMMR. OF POLICE _(Sikri, C.J.)_ 279 A B c **D** E F G H entitled to the special protection given by the Penal Code assemblies lawfully engaged in religious worship." We have referred to these cases in detail because they were approved of by the Privy Council in _Manzur Hasan_ v. _Muhammed_ _Zaman-l')._ In that case the Privy Council held : ••Jn India., there is a right to conduct a religious procession with its appropriate observances through a pitblic street so that it does not intefere with the ordinary use of the street by the public, and subject to lawful directions by the magistrates. A civil suit for a declaration lies against those who interfere with a religious procession or its appropriate observance." In _Chandu Sajan Patil_ v. _Nvahaleltand(")_ the Full Bench held that a citizen had an inherent right to conduct a non-religions procession through a public road. ·This Court followed the decision of the Privy Council in _Shaikh Piru_ _Bux_ v. _Kalandi Pati(")._ It is true these decisions primarily deal with processions but the statutes of the country, notably the Police Acts, deal with assemblies and processions on the same basis, and as pointed out by Benson, J., a procession is but an assembly in motion. This Court considered the question of the right of citizens to carry on motor transport business on highways in _Saghir_ _Ahmad_ v. _State_ _of_ _U.P.(")._ The following passage from the judgment of Venkatarama Ayyar J., in _C.S.S. Motor Service_ v. _State_ _iif_ _Madras_ ( ') was approved _:_ "The tn:e position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the pu\Jlic are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character anil extent of the user, as may be requisite for protecting the rights of the public generally; .... bnt subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways." ###### --(!) 52 I.A. 61 (2) A.LR. 1950 Bom. _l'ic._ **(3)** **Civil Appeal** No. **:!5** of 196(1; **JLH.lg:111cnt** **dalcd** **()ctobcr** :!9, **1968).** !4) [1955] 1 S.C.R. 707, (5) [1952) 2 M.L. l ~94 280 SUPREME COURT REPORTS [1973] 2 S.C.R. We are unable to appreciate how this passage militates against the contentions of the appellant. The Court was not ·then concerned with the use of public streets for processions or meetings. It seems to us that it follows from the above discussion that in India a citizen had, before tl1e Constitution, a right to hold meetings on public streets su"bject to the control of the appropriate authority regarding the time and place of the meeting and su"bject to considerations of pu"blic order. Therefore, w~ are una"ble to hold that the impugned rules are _ultra_ _vires_ s. 33 ( 1) of the Bom"bay Police Act insofar as they require prior permis· sion for holding meetings. This takes us to points (2) and (3) mentioned above. It is not surprising that the Constitution-makers conferred a fundamental right on all citizens 'to assemble peaceably and without arms'. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Art. 19 ( 3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in _Railway._ _Board_ v. _Narinjan_ _Singh(')_ that there is no fundamental right for any one to hold meetings in government premises. It was obser¥ed : "The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please." This is true but nevertheless the State cannot by Jaw abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State c:in only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions fa the interest of public order. This Court in _Babula/_ _Parate_ v. _State_ _of Maharashtra(')_ dghtly observed : "The right of citizens to take out processions or to hold public meetings flows from the right in Art. 19 (I )(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India." (I) ~~{1%9]~~ ~~3 S.C.R.~~ ~~548:~~ ~~5~~ 54. (2) [1961] 3 S.C.R. '423: 438. A B -C D E G H H. L, SHAH _v._ COMMR. OF POLICE _(Sikri,_ C.J.) 281 If the right to hold public meetings flows. from Art. 19 (l )(bl and Art. 19 (1 )( d) it is obvious that the State cannot impose' unreasonable restrictions. It must be kept in mind that Art· 19(l)(b), read with Art. 13, protects citizens against State action. It has nothing to do with the right to assemble on pri· vate streets or property without the consent of the owners or occupiers of the priv~te property. This leads us to consider whether s. 3 3 (1 ) ( o) of the Act and the rules violate Art. 19(1)(1>). We do not think Art. 19(1)(al is attracted on the facts of the case. t • I I A B We cannot appreciate how s. 33 ( 1 ) ( o) violates Art. 19( 1) · C ( b). It enables the Commissioner to make rules to regulat~ the assemblies and processions. Without such rules. in crowded public streets it would be impossible for citizens to enjoy their various rights. Indeed s. 33 (I)( o) may be said to have bec11 enacted in aid of the rights under Art. 19 (1 ) (a) and 19 (I ) ( d). _D_ E F G H We may 1pention that the sub-section has nothing to do with the fonnation of assemblies and processions. It deals with persons as members of the assemblies and processions. The real point in this case is whether the impugned rule' violate Art. 19 (1 )( b). Rule 7 does not give any guidance to the officer authorised by the Commissioner of Police as to the circumstances in which he can refuse pennission to hold a publk meeting. _Prima_ _facie,_ to give an arbitrary discretion to an offi· cer is an unreasonable restriction. It was urged that the Margi· nnl Note of s. 33-power to make rules for regulation of traffic: and for preservation of order in public place. etc.-will guide the officer. It is doubtful whether a marginal note can be used for this purpose, for we· cannot imagine the officer referring to the marginal note of the section and then deciding that his discretion is limited, ~pecially as the marginal note ends with 'etcetra'. It is also too much to eJtpect him to look at the scheme of the Act and decide that his discretion is limited. We may in this connection refer to _Co.x_ v. _Lo11isia11a(I)._ After stating that "from all evidence before us it appears that the authorities in Baton Rouge, permit or prohibit parades or street meetings in their completely uncontrolled discretion" it wa' ob5erved: "This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be pennitted and \vhich will not. This thus sanctions a device for the ##### ---(!) 13 --------- L. Ed. 2d. 47!; 486 pora< 15. II>. 17. _282_ SUPREME COURT REPORTS [ 1973) 2 S.C.R. suppression of the communication of ideas and permits the official to act a~ a censor. See _Saia_ v. _New_ _York._ supra, 334 US at 562, 92 L ed at 1578. Also inherent in such a system allowing parades or meetings only with the prior pennission of an official is the obvious danger to the right of a person of group not to be denied equal protection of the laws. See _Niemotko_ v. _Mary-_ _land,_ supra, 340 US at 272, 284, 95 Led at 270, 277; cf. _Yick_ _Wo._ v. _Hopkins,_ 118 US 356, 30 L cd 220, 6 S Ct 1064. Jt is clearly unconstitutional to enable a public official to determine which expressions of view will be-permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute." ''It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordi nances. concerning the time, place, duration, of manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion· is "exercised with 'unifonnity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination' .... and with a systematic. consistent and just order of treatment. with reference to the convenience of public use of the highways ...... " _Cox_ v. _New_ Hamp~hire, supra, 312 US at 576, 85 L ·cd·at 105, 133 ALR 1396. Sec _1'011!0.1·_ v. _Ne11·_ _Hamp-_ _shire,_ supra, ''But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant's freedom of speech and assembly secured to him by the First Amendment. as applied to the States by the Fourteenth Amendment." These "extracts clearly bring out the dangers of conferring <lrbitrary discretionary powers. A B c 0 E F G We may make it clear that there is nothing wrong in requir- H ing previous permission to be obtained before holding a public meeting on a public street, for the right which flows from Art. / H. L. SHAH _v._ COMMR. OF POLICE _(Mathew_ J.) 283. . _-:_ A _>_ ### A 19(l)(b) is not a right to hold.a meeting.at any place"and time . It is a right which can be regulated in the interest of all so that all can enjoy the right. In. our view rule 7 confers arbitrary power~ on the officer authorised by the Commissioner of Police and must . be struck ·down. The other Rules cannot survive because they merely lay B down the procedure for obtaining permission but it is not necessary to strike them down for without Rule 7 they cannot operate. Rule 14 and Rule 15 deal both with processions and public meetings. Nothing we have said affects the validity of these two rules as far as processions are concerned. c In view of this conclusion it is not necessary t9 decide the B 'y .J \' ) D E F. G II other poinJs raised by the learned counsel for the appellants. A number of other American cases were referred to in the course of arguments but we do not find it useful to refer to all of them in detail. It is, however, interesting to note that in the United States of America the right to use streets ahd parks and public places "has from ancient time been a part of the privileges, immunities, rights and liberties of citizens. . The privilege of a citizen· of the United States. to use the streets and parks for cemmunication of views on national questions may be regulated in - the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in th guise of regulation, be abridged or denied." (vide Roberts, J., in _Hague_ v. _C.1.0._ (83 L. Ed. 1423 at 1436-37)]. This passage was cited .. with approval in _Shuttleswor.th_ v. _Birmingham_ (22 L. Ed. 2nd, 162 .at 168). - In the result we set aside the judgment of the High Court, allow the appeal and declare that r. _1_ of the Rules framed by Commissioner of Police, Ahmedabad, is v.oid as it 1nfringes Art. l?(l)(b) of the Constitution. We need hardly say that it will be open to the Commissioner of Police, Ahmedabad, to frame a proper rule or rules. 4 . • . ·MATHEW, J. I. agree with the conclusion of my Lord the Cliief Justice but rily reasons for that conclusion are different. - The ·appellant filed an application under; Art. 226. of the Constitution in the Hi~h Court of Gujarat at Ahmedabad, praying for a declaration that orders contained in Annexures 'A' and 'B' to. that application, ; by whiCh ihe Deputy Commissioner of Police, SpeciaLHranch Ahmedabad, the 2nd resnondent;· refused to grant permission to· the appellant to. liold public meetings near Panch Kuva Darwaja on' the· 4th'and 5th September, f969; wer~ · irivalid,·and that rules7to 11;·14 and 15 framed underS. 33(1) 284 SUPREME COURT REPORTS [1973) 2 S.C.R. of the Bombay Police Act, 1951, as applied to Saurashtra area in Gujarat which prescribe the requirement of prior penniSsio11 and the method of applying for the same, etc., wei:'e _ultra_ vire~· the sub-section and violative of his fundamental right under Art. 19(1) (a) and (b). The Court found that the principal prayer in the application, namely, the challenge to the validity of the two orders, had become infructuous by lapse of time as the dates on which the intended meetings were to be held had long since passed but considered the question whether rules 7 to 11, 14 and 15 were _intra_ _vi res_ section 33 (I) and whether they woiJlcl violate the fundamental rights of the applicant under Art. 19( 11 (a) and (b) of the Constitution. The Court dismissed the app:ication holding that the rules were _intra_ _vires_ the sub-section under which they were framed and that they did not violate the fundamental rights of the petitioner under Art. 19 ( I )(a) or (b). This appeal is by certificate from that judgmP.nt. Section 33 (I)( o) of the Bombay Police Act, 1951. i:ro\·idcs: "33 (I) The Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for; xx xx xx xx xx xx xx xx xx xx ( o) regula;ing the conduct of and behaviour or action of persons constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes by which, the order in which and the times at which the same may pass;" Rule 7 of the Rules framed by the Commissioner of Police under s. 33 (I)( o) provides : .4 c [) F .. "7. No public meeting with or without loud-speaker, shall be held on the public street within the jurisdiction of the Commissionerate of Police, Ahmedabad City unless the necessary permis.sion in writing has been _G_ obtained from the officer authorised by the Commissioner of Police." The appellant submitted that s. $3 ( 1 ) ( o) did not empower the Commissioner or the District Magistrate to frame a ~ requiring a person to obtain prbr permission for conducting a pubtic meeting on a public street, as such -11 rule would imply H that the Commissioner or the District Magistrate has power !fl refuse p.~rmission for holding such a meeting as a power to permit A c .D E F J;I 11. L. SHAH _v._ COMMR. OF POLICE _(Mathew_ /.) 28 5 normally implies a power not to permit and so, the rule is bad. (It was under rule 7 that the Commissioner refused permission to hold mcetin11s on the 4th and 5th September, 1969). What the sub-section provides is making of rules for 'regulating' the conduct and behaviour, or action of persons constituting assemblies, The sub-section presupposes an assembly anJ autho rises the making of rule for regulating the conduct, behaviour or action of the persons who are members thereof. Rule 7 impliedly gives power to the Commissioner to refuse permission tu hold a public meeting.and, when a meeting is prohibited, then: is no quc;stion of regulating the conduct. behaviour or action of persons constituting assembly, as, ex-hypothesi, no assembly has been constituted. The sub-section does not authorise framint! of rules to regulate the conduct, behaviour or action er persons before an assembly is constituted. Before an assembly is constituted, every member of the public is a potential member of it. because every such member, if he so choose. might become a member of the assembly. Does, then, the sub-section authorise the making of rules to regulate the conduct, behaviour or action of every such n;ember, before he becomes a member of the assembly ? J think not. A power to "regulate" docs not normally include a po,wr to prohibit (s~ _Toronto_ v. _Virao('_ ), _Ontario_ v. _Ca11atla(')._ A power to regulate implies the continued existence of that which is to be regulated (see _Birmingham and_ _Midla11d_ _Motor_ _Om11ib11.1_ _Co. Ltd._ v. _Worcestershire County_ _Co1111ci/(3)._ If rule 7 authorises the Commi~ioner to prohibit a public meeting, is it consistent with the sub-secton which authorizes only "regulating the conduct~· .. " ? When the Legislature wanted to give the rule making authority a power fo frame rules prohibiting Jn activity. it has taken care to do so by the appropriate word. for instance. sub-section _(_ p) of s. 33 (I) speaks of "prohibiting the hanging or placing of any cord or pole across a street .... ", sub-section ( q) of s. 33 (I ) relates to "prohibiting .............. the placing of building materials .......... in any street". In these subsections, the word 'prohibit' is used to show that the rule makin!! authority has power to pass a rule prohibiting the activities therein mentioned. Similarly sub-section (x) of s. 33( 1) provides for "regulating or prohibiting the sale of any ticket ...... ". The juxta-oosition of these words is _r._ further indication to show that the legislature intended different connotations to the words. I am not saving that a power to regulate can never include a power fo prohibit. But the context here does not compel such --( i)(J8%J -- A.C.-8R~ --- (2) [1891-J A.C )48. (3) [1967] I W.L.H. 409. 286 SUPIU!ME COURT REPORTS [ 1973) 2 s.C.ll. a reading. Rule 7 is, therefore, _ultra vires_ the sub-section. Even if the **ale** is _ultra vires_ the sub-section the appellant will not be entitled to hold public meetings on the street in question unless the appellant has the right in law to do _w._ It was, therefore, 'll!'gued on behalf of the appellant that every citizen has the fundamental right to hold public meetings on a public street. The respondents, however, submitted that, in India, the Jaw is, that there 1s no right, let alone a fundamental or.e, to hold public meeting on public street. In _Saghir Ahmad_ v. _The State_ _of_ _U.P._ _and others('),_ this Court said: "According to English law, which has been applied a 11 a Ion.~ in India, a highway has its origin, apart from statute. in dedication, either express or implied, by the owner of the land of a right of passage over it to the pi:1blic and the acceptance of that right by the public". The onfy rir,bt acquired .by the public is a right to pass and repass it at their pleasure for the purpose of legitimate travel. In _Exparte_ _Lewis('),_ Wills, J. speaking for the Court said: "A claim on the part of persons so minded to assemble in any numbers, and for so Jong a time as they please to remain assembled, upon a highway, to the detriment of others having equal right, is in its nature irreconciiable with the right of free passage, and there is, so 'far as we have been able to ascertain, no autl10rity whatever in favour of it. It was urged that tlle right of public meeting, and the right of occupying any unoccupied land or highway that might seem appro- . priate to those of her Majesty's subjects who wish to meet tllerc, were, if: not synonymous, at least correlative. We fail to appreciate the argument." In _Reg._ v. _Om11inghame_ _Graham and_ _Bums(')_ the Comrr<lssioner of Police, in the exercise of his powers vested in him under the Metropolitan Police Act, 1839, issued an order that "no O'<ganised procession shall be allowed to approach tlle Trafalgar Square on Sunday tlie 13th instant". It was argued that.he had no power to forbid an orderly meeting. But Charles, J. in charging the jury said : "I can find no warrant for telling you that there is a right of public meeting either in Trafalgar Square or any other public thoroughfare. So far as I know the law of England, the use of public thoroughfares is for peopl'c to pass and repass along them. That is the (I) [1965] l S.C.R. 707, 7t5. (2) (1888) Law Reports 21 Q.B.D. 191 (3) (1885-9Jl Cox's Criminal Law Case,, Vol. 16, 420,29-30. A ll c D E F G H H. L. SHAH _v._ COMMR. OF POLICE _(Mathew_ _J.)_ . _2&1_ purpose for which they are, as we say, dedicated by the owner of them .to the use of the public, and they are not dedicated to the public use for any other purpose that I know of than for the purpose of passing **and,** re~passing;" A meeting· held on a highway, although· it might be a trespass; against the Authority in which the highway is vested is not,. on that ground, wrongful against the members of the public. As. far as they are concerned the meeting is a wrong only if it. is. a nuisance. As the public are entitled to the unobstructed use· of the highway for passing and repassing, any meeting which appreciably obstructs the highway would seem to constitute such a nuisance. The test is whether it "renders the way less com--modious than before to the public". The fact that sufficient alternative passage space is left is no defence. "It is ·no defence· to show that ...... thou~h a part of the highway actually used· by the passengers is obstructed, sufficient available . space is. left."( [1 ] ) Moreover, it is not necessary to prove that' any one has been obstructed; the placing of obstructions on a public road· or street in a manner calculated to create an obstruction to traffic· is an offence althqugh no person or carriage may have bew· actually obstructed. In _Gill_ v. _Carson and_ _Nield(')_ Viscount . Reading, C.J. said : - · "In my judgment it is not necessary to prove.that.a person has been actually obstructed, it is quite sufficient to prove circumstances from which the justices can . conclude that in the ordinary course persons may be obstructed, and that the actual use of the road was calculated to obstruct even though no person was proved to have been obstructed."· Applying th~se rules to the special facts of a public meeting in· the highway, it would appear that such ·a meeting, however rea~. sonable . and desirable its purooses may be, is a nuisance if it causes any appreciable obstruction, and that it is not necessary. to prove that in fact, any one has been prevented from passing. In _De Mort;an_ v. _Metropolitan Board_ _of_ _1Vorks(_ _[8 ]_ _)_ it was held· that although there is a widespread belief that the general public has a right to hold meeting on a common, no such right was known to the law. When it was argued that such meetings were · always Permitted; Lush, J. is· reported to have ·said that ·"such ·uses dfd not constitute a right or prove anythini; more than an excused or licensed trespass". It may be stated, therefore, that if every unlicensed oublic meeting is a trespass as against a person· · (I) Halsbury, Hailsham ed., Vol. xv;, _p._ _355._ (2) [1917] 2 K.B. 674, 677. (3) [1880] _5_ Q.B.D. 155, 157. - A B c .D E' :) F G n ~BB SUPREME COURT REPORTS [1973] 2 s.c.R. or body of persons in whom the surface of the highway is vested, 'then this obviously may limit the socalled right of public meeting !o the vanishing point. Dicey in hi> Law of the Constitution( [1] ) has observed : "A has a right to walk down the High Street or to go on to a common. B has the same right. C, D and all their friends have the same right to go there also. In other words, A, **B,** C and **D,** and ten thousand such, have a right to hold a public meeting;" It might not follow th•lt because A, **B,** **C.** **D,** etc., have a right to walk down the High Street, they have a le,gal ri¥ht to hold a public meeting. _Beatty_ v. _Gil/banks(')_ which dicey cites as the leading case on the law of public meeting was not directly concerned with this question as the appellants there who were leading a procession through the slreet intended to hold their ·meeting on private premises. Dicey has himself pointed out in !he Appendix to the eighth edition of the book as follows : (") "Doe.~ there exist any general right of meeting in public places? The answer is easy. No such right is known to the law of England. ". . . . . . . . . . But speaking in general terms the Courts do not recognise certain spaces as set aside for that end. In this respect, again, a crowd of a thousand people stand in the same position as an individual per·>on. If A wants to deliver a lecture, to make a speech, or to exhibit a show, he must obtain some room or field which he can legally use for his purpose. **He** must not invade the rights of property-i.e., commit a trespass. He must not interfere with the convenience of ihe public-i.e., create a nuisance. **B** c **D** E F G # • •, "The notion that there is such a. thing as a right ,)f meeting i11 public places arises frori1 more than one confusion or erroneous assumption. The right of public meeting-that is, the right of all men to come together in a place where they may laWfully assemble for any lawful puniose, and especiaDy for political discussion-is confounded with the totally different and falsely alleged right of every man to use for the purpose of holding a meeting any place ivhich in any sense is open to the public. The two rights, did they both exist. are essentially different. and in many countries arc (ll \.V. ')'°'•· Llw ~r the Constitution, 10th ed., 271-272. **H** (2) (l882! 9 Q.B.D. 308, 1 [_;) ] **[A,,;>:nx ]** _**[to ]**_ **[L-iw ]** **[or ]** **[the ][Constitution, ][8th ][ed ][.. ][Note ][Von' ][Quc.:;tion.:; ][connected ]** with th: right of public m,.ting". pp. 493-499. A B D E ####, H. L, SHAH _v._ COMMR. OF POLICE _(Mathew_ I.) 289 regulated by totally different rules. It is assumed again that squares, streets, or roads, which every man may lawfully use, are necessarily available for the holding of a meet;ng. The assumption is false. A crowd blocking up a highway wil'.J probably be a nuisance in the legal, no iess than in the popular sense of the term, for they interfere with the ordinary citizen's right to use the locality in the way permitted to him by law. Highways, indeed, are dedicated to the public use, but they must be used for passing and going along them, and the legal mode of use negatives the claim of politi cians to use a highway as a forum, just as it excludes the claim _of_ actors to turn it into an open air theatre. The crowd who collect, and the persons who cause a crowd, for whatever purpose, to collect in a street, create a nuisance ........ " In _Burden_ v. _Rigler and another(_ [1] ), the evidence showed that the urban authority had tacitly licensed the meeting and so it was not a trespass as against them. No evidence was also adduced that the meeting caused any appreciable obstruction on the highway and so there was no proof of any nuisance. The Court held that the fact that· a public meeting is held upon a highway doe [0 ] not make the meeting unlawful whether it is un lawful or not depends upon the circumstances in which it is held _e.g.,_ whether or not an obstruction is caused. The Court further held that even though there is no right to hold a meeting on a highway. _i.e.,_ no absolute legal right, it does not necessarily foilow that. if a meeting is held, it may not be lawful. And after referring to the decision in _Ex-parte Lewis(')_ already referred to, the Court said that the convenors of a meeting cannot, under all circumstances, insist on holding a meeting. In _Harrison_ v. _Duke of Rutland('),_ Lord Esher, M. R. observed: ;,j "Highways are no doubt dedicated _prima_ _fade_ for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly G done, and as constituting a reasonable and usual mode of using a highway as such." In Halsbury's _Laws of England(')._ it is said that it is a nuisance "to organise or take part in a procession or meeting which naturally results in an obstruction and is an unreasonable use of the highway". H ------- 11) [1911) LR. 1 K.B. 337. Cl [1965) I S.C.R. 707, 715, (3) [1893] I Q.B. 142. CA at 146, (4) Hailsham Editi0n, Vol xvi, p. 362 "Highway!'·•. 20-L148SurCT/73 SUPREME COURT REPORTS (1973) 2 S.C.R. Public processions are _prima facie_ legal. If A, B and C have each a right to pass and repass on the highway, there is nothing ill'egal in their doing so in concert, unless the procession is illegal on some other ground (see _Manzur Hasan_ v. _Muham-_ _med_ _Zaman(')_ and _Chandu Sajan Patil_ v. _Nyshalchand(')._ "As the public interest is paramount, it is sometimes suggested that, on the anqlogy of a public meeting,· any procession which causes an appreciable obstruction to the highway must be a public nuisance. This, however, is not so. As a public meeting is not one of the uses for which the highway has been dedicated, .it is a nuisance if it appreciably obstructs the road. It is no defenc~ to show that sufficient available space is left if a part of the high· way actually used by passengers is obstructed. But, and this is most important, in. the case of a procession, the test is whether h1 all the circumstances such a procession is a reasonable user . of the highway, and not merely whether it causes an obstruction. Thus to take an obvious illustration. the temporary crowding in a street occasioned by people going to a circus or leaving it is not a nuisance, for if such a icmporary obstruction were not permitted then QO popular show could ever be held" (see Goodhart, _Public Mel'fings and Processions(')._ The distinction be· tween the use of a highway to hold a public meeting and the use ·of it to conduct procession thereon is pointed out by the author and he takes the view that no· person has a right to use a highway for holding public' meeting even though no nuisance is created. According to him. under the law, a person can use a highway for the purpose for which it has been dedicated _I.e .._ to pass and repass and any other unlicensed use, however desirable it may be from other standpoints, is legally wrongful. In _Lowdens_ v. _Keal1£'ney(')._ Gibson, J: said that a procession is _fJrima_ _facie_ legal and that it differs from "the collection of a stationary crowd'' but that a procession may become a nuisance if the right is exercised unreasonably or with reckless disregard of the rights of others. Justice Holmes. while he was Chief Justice of· the Massa chusett~ Surreme Court said : .8 c 0 E G H ' _(_ ## I "For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietory rights interfere. the legislature may and the right of the public -.-----------·- -~ (ll 5~ I.A. 61. 121A,J.R.1950Bom.192. (3) Cambrid!!< Law Journal (1936-38), 6, 171. (4) (1903) 2 l.R. 121A,J.R.1950Bom.192. (4) (1903) 2 l.R. 82. c t: ff H .. t. SHAH _v._ COMMR. OF POLICE _(Mathew,_ _J.)_ 291 to enter upon the public place by putting an· end to the dedication to public use. So it may take the less step of limiting the public use to certain purposes." This dictum was quoted and approved by the U. S. Supreme Court _Davis_ v. _Massachusetts(')._ But later decisions of the U.S. Supreme Court have politely distinguished·· the case. In _Hague_ v. _C.1.0.('),_ Justice Roberts, speaking for the majority, said: "Wherever the title of streets and parks may rest, they have immemorially been .held in trust for the use of the public and time out of mind, have been'used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places lias, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United Stales to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute but relative\ and must be exercised in subordination to the general comfort and convenience and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." This dictum has been followed in _Kunz_ v. _New_ _York(')_ aild _Shuttlesworth_ v. _Birmingham(')._ Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems-religious, political, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present tinie for the education of the public; a_nd the formation gf opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the 'natural' places for expression of opinion and dissemination of ideas. Indeed it inay be .argued that for some persons these places are the only possible arenas for the effective exercise of.their freedom cf speech and assembly. (I 1 167 U.~.,~ 11897), (3) 340 U.S. 290. 121 _:ro1_ _·v.s._ 496, !15-516. 14) 394 l'.S. 147, 1'2. 292 SUPREME COURT REPORTS (1973] 2 S.C.R, Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city's function of providing for 'he exigencies of traffic in its streets and for the recreation of the public in its parks, with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public assembly. The assumption made by Justice Holmes is that a city owns its parks and highways in the same sense and with the same rights a private owner owns his property with the right to exclnde or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks. The parks are held for public and the public streets are also held for the public. It is doubtless true that the State or local authority can regulate its property in order to serve its public purposes. Streets and public parks exist primarily for other purposes and the social interest promoted by untrammelled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion. The framers of the Constitution were aware that public meetings were being held in public streets and that the public have come to regard it as part of their rights and privileges as citizens. It is doubtful whether. under the common law of th& land. they have any such right or privilege but. nobody can deny the _de facto_ exercise of the right in the belief that such a right **existed.** _**Co111n1on;s**_ _**error**_ _**facit**_ _**jus**_ **(common error** **makes** **the** law). This error was grounded on the solid substratum of continued practice over the years. The conferment of a fundamental right of public assembly would have been an exercise in futility. if the Governmetit and the local authorities could legally close all the normal places, where alone. the vast majority of the people could exercise the right. Our fundamental rights of free speech and assembly are modelled on the Biil of Rights of the Constitution of the U.S.A. [see _Express Newspapers_ _(P1-il'ate)_ _Lt<l._ _and Another_ v. _The Union_ _of_ _Tndia_ _and others(')]._ It (I) [1959] S.C.R. I~. l~I. 8 c D F G **H** A B c D E F G H H. L. SHAH _v._ COMMR. OF POLICE _(Beg,_ _],)_ 293 would be relevant then to look to the ambit and reach of those rights in the United States to determine their content and range in lndia. On closer analysis, it will be found that the basis of Justice Roberts' Dictum in _Hague_ v. C.I.0.(1) is the continued _de_ _facto_ exercise of the right over a number of years. l think the same reasoning can be applied here. The power of the appropriate autholity to imposl! reasonable regulation in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with the fundamental right of assembly. A system of licensing as regards the time and the manner of holding public meetings on public street has not been regarded as an abridgement of the fundamental right of public assembly or of free speech. But a system of licensing public meeting will be upheld by Courts only if definite standards are provided by the law fur the guidance of the licensing authority. Vesting of unregulated discretionary power in a licensing authority has always been considered as bad [see the cases on the point discussed in the concurring opinion of Justice Frankfurter in _Niemotko_ v. _Mary-_ _land(')]._ If there is a fundamental right to hold public meeting in a public street, then I need hardly say that a rule like Rule 7, which gives an unguided discretion, practically dependent upon the subjective whim of an authority to grant or refuse permission to 11.old a public meeting on public street, cannot be held to be valid. 1bere is no mention in the rule of the reasons for which an application for licence can be rejected. ''Broad prophylactic rules in the area of free expression and assembly are suspect. Precision of regulation must be the touch stone in an area so closely touching our precious freedoms" [see _NAACP_ v. _81111011(3).._ I would allow the apfeal. BEG, J. I have had the •tdvantage of reading the judgmems of Mylord the Chief Justice and my learned brother Mathew. I would like to indicate why, despite my difficulties, I conclude that Rule 7 of the rules made under section 33(0) of the Bombay Police Act, 1961 (hereinafter referred to as 'the Act'), is void. The difliculties I refer to arise mainly from two considerations : firstly. il is abundantly clear that there is no separate right of "public meeting". let alone a constitutional fundamental right so described, and, in any case, there is no such right attached to public streets which are dedicated for 'the particular purpose of passing and rcpassing- with which any recognition of a right to hold a meeting on a public thoroughfare will obviously be in (1) 307 U.S . _.\96._ _m_ 3~0 U.S. 268 _:.194_ SUPlll!MB COURT RBPO!('tS [1973]2 s.c.a., c?nsist~nt; aud, secondly, al!hough Rule 7 appare~tly· gives a wide discretionary power to give or to refuse permission to hold a meeting on a "public street", so that it is capable of being misused or ~o used ~s [1] to enable. unjustifiable discrimination, yet, it is possible. to find some guidance, as the High Court. of Gujarat tound, m the pre-amble as well as in Section 33(0) of the Act. Therefore, it m;iy be possible to rely here, as the High Court h~d d~ue, upon the presumption that even the apparently wide discretionary powers vest~d by Rule 7 in ·the CdmmiS.sioner of Police, a highly responsible police officer, will not be abused. It is certainly arguable with some force ihat the power of the High Court [1] to strike down an improper exercise is a sufficient safeguard against its misuse so that it may not be necessary to strike down Rule 7 at all. Furthermore, in the <'ase before us, a good enough reason was given by the Commissioner to justify a refusal. We are. however, also concerned with the validity of Rule· 7 which may be relied upon for future refusals or grants of permission which will, it is urged, eff.ect the petitioner's rights. There is doubt that a "public street", as it is commonly understood, is really dedicated for the use of the public for itli.e purpose of passing and repassing on it and not for any other purpose. In t.his respect, it appears [1] 10 me that the law in this country; as laid down by this Court in _Saghir Ahmad_ v. _State of_ _U.P._ {') and the _Municipal Board, Mang/au:·_ v. _Sri Mahadeoji_ _Maharaj('),_ is not different from othe .Law in England found . stated in _Ha/sbury's Laws_ _of England("),_ as follows : A B c **D** E "The right of tlv.: public is a right to 'pass along' a highway for the purpose of legitimate rtravel, not to 'l;>e on' it, except so far as their presence is attributable to a reasonable and proper user of the. highway as such". E A right to use a public highway for the purpose of carrying on transport business or othe~ forms of trade such as hawking, or to take oirt a procession through it, is really incidental to a re~sonable user of the highway by the public. It would be fully covered by the purpose _foi_ which the public road is deemed to be dedicated. But, as regards the supposed right to hold .a G "public meeting" on a highway, it appears to me that the following observations from _B/achve/l's "Law_ _of_ _Meetingp"_ (9th Edn. p. 5), could apply equally well here : ' .. _f_ "There appears to exist a view that the public has a right to hold meetings for political and other purposes on the highway. This is an erro11eous assumption. ~AIR 1954 s.c. _no_ . (2) (196$] S,C.R. p. 242. (J) H:ll"hury'.1: taws of **Engl:ind** **Third** **Fdn.** **Vnl.** **19,** **(l.** **73.** H A '8 c D H. L. SHAH _V;_ COMMR. OF POLICE _(Beg,_ J.) 295 A public highway .exists for the purpose of free passag't! only, and for purposes reasonably incidental 'to Jhis right. There can· be no claim on. the part of,pers'tl'ns who desire to ass.embly for the purpose of holding a meeting to do so on the highway. The claim is ir reconcilabl~ with the purpose for · which a highway exists". . I ~o ndt find it possible to accept the view that a merely erro- .. neous assumption can ever form the basis of a right unless - · buttressed by something stronger. pal't of the public hi~hway to an exceptional and extraordinary user .for a limited duration even though such llser may· be inconsistent with· the real purpose for which the highway exists. The right has, however,' ito be shown to exist or have a Ie11:al basis, in every case in which a claim for its 1.1xercise is made, with reference to the particular part of the highway involved. . . . ·The Privy Council pointed out, in _Lakshmidhar Misra.a.·' ._ . _Ors._ v. _Ban gala/_ _&_ _Ots._ ( [1] ), the fight to user of a particullir No doubt .a meeting held on a highway will .not necessarily be ille~al. It may .be sanctioned by custom or rest on permission', from an authority prescribed by statute, to pu( a· particular piece of land for a particular purpose, .. such as . holding' a fair, E !llBY be part of the customary law of locality. Thus, . a 'customary right to use a highway for special purposes sometimes may· exist provided the ingredients of ;$!>Ch a right are established although the customary right may .Mt be consistent with the purpose for which the highway is dedicated. Proof of such a customary right attaching to a particular part of a highway must, however, be a ·t matter of. evidence in every case. It seems clear to me that we - · are n'ot concerned with ~such rights as they were nc;it set up - · an)rwhere in the case before us, and, even if such a right had been set up, it could only be adjudicated upon satisfactorily .in· a civil suit. No doubt _Dicfy's Law of the Constitutio11_ ( lOth.Edn .. p. 271G · 272) contains a passage which deals with the right _cA._ a subject to pass through a hiitliway and to proceed to "a common" toe:ether with .others in procession and to hold a public meeting for political or other nurposes without obtaining the prior permission of any authority. to exercise such a .right. I am. however, unabl~ to read into this passage the further right of H holding a public meeting on a highway or public street. It seems to me that what is reforred to there is only the ri~ht ~o pass throu&}i (1) AlR 1950 P.C. p, _56_ 296 . SUPREl\IE. COURT REPORTS [1973)2 S.C.R • a public thoroughfare in order to proceed to and hold a meeting on "a common". There may ~ a right of using "a co111p1on" for the purpose of holding public meetings by custom . . I!J the Appendiic to. _Dicey's_ _''Law_ _of_ _the Constit111ion(_ _[1]_ _),_ the pos1t1on under the Enghsh law is stated very clearly as follows : "Does there exist any general right of meeting in public places" The answer is easy. No such right is known. to 'the Law of England. A n c E " ...... But speaking in general terms the courts do not recognise certain spaces as set aside for that _end._ In this respect, again, a crowd of a thousand ., people stand in the same position as an individual person. If A wants to deliver a lecture, to make · a speech, or to exhibit a show, he must obtain some room or field which he can legally use for his purpose. He must not invade the rights of property-i.e. commit·· a trespass. He must not interfere with the convenience of the public-i.e. create a nuisance. ''The notion that there is such a thing as a right of meeting in public places, arises from more than one confusion or erroneous assumption. The right of public meeting-that is, the right of all men to come together in a place where they may lawfully assemble for any. lawful purpose, and especially for political discussion-is confunded with the totally different and ·falsely alleged right of every man. to use for the pur pose of holding a meeting any place which in any sense is open to the public. The two rfahts, did they both exist, . are essentially, different,· and in many F \_ - ... ##### .. G _r_ _**r**_ countries· are regulated by· totally different rules. It is assumed again that squares, streets, or roads, which every man may lawfully use, are necessarily available for the holding of a meeting. The assumption is false. A. crowd blocking up a highway will probably be a nuisance in the legal, no less than in the popular sense of the term, for they interfere with the ordinary citizen's right to use the locality in the way permitted to him by law. Highways, indeed, are dedicated to the public use, but they must be· used for passing and RQing along them, and the legal mode of use negatives the claim of politicians to use a highway as a forum; just as it excludes the claim of actors to tum it _.,__ :.. **·(I)** **Dic::y's** **L'l\v of the Constitlltion.....:."8th Edit.** _**Note**_ **yon** - '· · - - · **with** **the ri$ht** **of public** meetin~"! **p. 498--499,** **, Questions connected** H A B c D E F G H II. L. SHAH I'. CO:'.IMR. OF POLICE _(Beg,_ J,) 297 into an open-air theatre. The crowd who collect, and the persons who cause a crowd, for whatever purpose, to collect in a street, create a nuisance .... " Dicey does ckal with a ''right of public meeting" us though it was an outcome of a right of assembly. But,· he as>umes that an assembly, which is stationary. as di;tinct from one which is moving, must be held at a place where th.~rc is otherwise a right to hold such an assembly constituting a "public meeting". If the term "meeting" signified the mere meeting of one citiz.en with another it could -be said that such a meeting of many citizens on a particular portion of a public hiµhwuy is included within reasonable user of th1: public highway for the purpose. for which it was dedicated so loniz as it does not interfere un'rcasonably with similar rights of others. The term "public meeting", however, is j!'Cnernlly used for a gmhcring of persons who stund or take their seats at a pa1·ticular place so as to be addressed by somebody who is heard by or expresses the feelings of the persons assembled. If the term "meeting" were really confined to what may be called a moving assembly or procession a right to hold it could be co;nprehended within the right to take out a procession which should, it seems to me, be distinguished from what is commonly understood as a right to hold a public meeting. Such a meeting, if held on a highway, must necessarily interfere wi1h the user of the highway by others who want to use it for the purpose for which the highway must be deemed to be dedicated. It is true that there is a well recognised right of taking out processions on public thoroughfares in ~his country as an incident of the well understood right of their user by the public. But, I find it very difficult to proceed further and to hold that such a right could be extended and converted into a right to hold a public meeting on a thoroughfare. The ri~ht to hold a public meeting may be linked with or even flow out of rights under Article 19( 1) (a) to express one's opinions and 19 _(I_ ) ( b) to assemble peaceably and without arms. just as the right to take out processions or moving assemblies may spring from or b,~ inextricably connected with these rights, yet, inasmuch as the right to hold a meeting at a particular place must rest.· on tk proof of user of that place for the exercise of a fundamental right. it appears to me that the right to such a user must be established in each particular case quite apart from or indcpende1\tly of fundamental rights guaranteed by Article 19 (I) of our Constitution. It involves somtthing more than the exercise of a fundamental right although that something more may be necessary for and connected with the exercise of a fundamental. right SUPR.l:MJ; COURT R.EPOllTS [1973] 2 s.c.a. In _Hague_ v. _C.1.0.('),_ Roberts, _I._ no doubt spoke or the " general right or the public in America _to_ use "streets and parks . '• .. for purposes or assembly, communicating thoughts between citizens. and discussing public questions". But, I do not find Ji.~re a recognition of a right to hold a public meeting on a public thoroughfare. The passage relied upon by the Jeame<l Counsel for the appellant from this case referred _to_ ri~hts which H could be exercised in "streets and parks". A natural interpretation of this passa,ge appear!> to me to be that whatever rights can be properly exercised. by 111embers of the public on a ·public thoroughfare may· be exercised ither.~ but .ihe others could be exerCised in a park where a public meeting could he held. Whatever may be the law in America, we have not been s!Jown c any authority for the proposition. thait there is an unconditional right of hokline: a publk meeting at every public place, much Jess on a public thoroughfare or stree'I in this country. as a necessary incident of the fundamental rights or either free speech or of assembly. If the position rested merely on the commonly accepted O meaning of a "public street"' and the purposes for which it must be deemed to be dedicated it may have been possible to argue that Rule 7 itself goes beyond the scope of the rule making power given by Section 33 (0) inas,nrnch as a stationary assembly, as a .public meeting must necessarily be so long as the assembly last, could _not_ reasonably be within the purview of Sec. 33(0) . F. of the Act. But, the definition of _the_ public street in Section 2, sub. s. I 5 of the Act lays down : 2 (15) "Street" includes any highway, bridge, way over a causeway, viaduct, arch, quay or wharf or any road, Jane, footway, square, court, alley or passage·· accessible to [1] 1hc public. whether a thoroughfare or not". F If we bear this .definition in mind, it would appear that the public could conceivably hold a me:eting at a place falling under this difinition or a street. If this is so, could the Commissioner , not be authorised to regulate it in the. manner contemplated by Rule 7 ? I think he could, provided there are sufficient safeguards against misuse of such a power. G Rule 7 is so worded as to enable the Commissioner _to_ give or refuse permission to hold a public meeting at a place falling within the definition of "a Street" without the necesshy of giving reasons for either a refusal or a permission. It · will, therefore, be possible for him. unc!er the guise of powers given by this rule to discriminate. If he chooses to give no reasons either H for giving the permission or for refusing it, it will not be possible (I) 307 U.S. 496, 515-516 A B c D E F H. L. SHAH _V._ COMMR. OF POLICE _(Beg,_ /,) 299 for a High Court or this Court to decide: without holding a trial and taking evidence, what those reasons really are in a particular case.· Such a wide power my even enable an exceptional user of a public thoroughfare; completely inconsistent with the rights of the public to pass or repass, to be made of it without sufficient justification for it. The Commissioner may give permission to use a place for a public meeting on a public street, which may not be suitable for it, to influential or powerful persons. but deny it to others. Although,· the right fo hold' a put1lic meeting at a public place may not be a Fundamental Right by itself, yet, it is so ~losely connected with fundamental rights that a power to· regulate it should not be left in a nebulous state. It· should be hedged round with sufficient safeguards ap,ainS't its misuse even if. it is fo be exercised by the Commissioner of Police. He ought to be required to give reasons to show why he. refuses or gives 'the permission for such exceptional user of a "street" as it is defined in the . Act. The ru\e should make clear the circumstances in which the permi~sion may be given or refused. Therefore. ·although I have had my serious doubts as to whether we need declare Rule 7 invalid for a contravention .of "Ari. 19 (I) (b) of the Constitution, yet, on fuller consideration, 1 · respectfully concur with My lord· the Chief Justice in declaring it invalid because it is capable .of being used arbitrarily so as to ·discriminate unreasonably and unjustiably and thus to affect the exercise of rights conferred by Articles 19( 1) (a) and (b) without sufficient means of control over pOssible misuse of power. The Rule of law our Constitution contemplates demands the existence of adequate means to check possibilities of misuse of . every kind of power lodged ·in officials of the State. I would prefer to strike it down for contravening Article 14 of the Constitution llthough, if its repurcussions on the rights guaranteed by Art. 19(1 )(a) and (b) were also taken into account, Jt could be struck down as an unreasonable restriction on those rights as well. For the reasons given above, !respectfully agree with the order proposed by Mylord the Chief Justice. V.P.S. 2-L498Sup Cl/73