Babulal Parate Vs. State of
Maharashtra & Ors  INSC 10 (12 January 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 884 1961 SCR (3) 423
CITATOR INFO :
R 1971 SC1667 (3,17,20) R 1971 SC2486
(8,12,27,29) R 1973 SC 87 (33) RF 1981 SC2198 (21,23) R 1984 SC 51 (14)
Criminal procedure Apprehended danger-Power
of Magistrate to issue order absolute at once-Constitutionality-Code of
Criminal Procedure, 1898 (V of 1898), s. 144 Constitution of India, Art. 19 (1)(a) and (b).
The District Magistrate, apprehending a
breach of peace as a result of demonstrations and counter-demonstrations held
by two rival labour unions promulgated an order under s. 144 of the Code of
Criminal Procedure, which was to remain in force for a period of fifteen days,
prohibiting, inter alia, the assembly of five or more persons in certain
The petitioner took it as an invasion on the
fundamental rights of the citizens under Art. 19(1)(a) and (b) of the
Constitution and held a meeting outside the specified areas and exhorted the
workers to take out processions in the notified areas in defiance of the said
order. He was thereupon prosecuted under ss. 143 and 188 read with s. 117 of
the Indian Penal Code. He moved the High Court under S. 491 of the Code of
Criminal Procedure, and having failed to get relief there, moved this Court
under Art. 32 of the Constitution challenging the constitutional validity of s.
144 of the Code on the ground that it conferred wide and unguided powers on the
District Magistrate and thus contravened Art. 19(i)(a) and (b) of the
Held, that the attack on the constitutional
validity of s. 144 of the Code of Criminal Procedure must fail, 424 Read as a
whole, the section clearly showed that it was intended to secure the public
weal by preventing disorders, obstructions and annoyances. The powers conferred
by it were exercisable by responsible Magistrates who were to act judicially
and the restraints permitted by it were of a temporary nature and could be
imposed only in an emergency.
The restrictions which the section authorises
are not beyond the limits prescribed by cls. (2) and (3) of Art. 19 of the
Constitution. The prevention of such activities as are contemplated by the
section is undoubtedly in public interest and therefore no less in the interest
of public order.
Clauses (2) to (6) of Art. 19 of the
Constitution do not require a special enactment for the enforcement of the
restrictions mentioned in them.
The impugned section must be construed as a
whole and although the first part of cl. (1) does not expressly mention that
the order of the Magistrate must be preceded by an enquiry, the second part
clearly indicates that the Magistrate has to satisfy himself either by his own
enquiry or from a report made to him as to what the facts are. The section does
not, therefore, confer an arbitrary power on the Magistrate in the matter of
making the order.
The wide power under the section can be
exercised only in an emergency and for the purpose of preventing obstruction,
annoyance or injury etc. as specified therein and those are the factors that
must necessarily condition the exercise of the power and, therefore, it was not
correct to say that the power is unlimited or untrammeled. Since the judgment
has to be of a Magistrate, it can be assumed that the power will be exercised
legitimately and honestly. The section cannot be struck down simply on the
ground that the Magistrate might possibly abuse his power.
Although the section makes the Magistrate the
initial Judge of an emergency that cannot make the restrictions placed by it
unreasonable. Since maintenance of law and order rests with the Executive, it
is only appropriate that the initial decision must be with the Magistrate. But
such decision is not entirely based on his subjective satisfaction. Subsections
(2), (4) and (5) clearly indicate that the Magistrate must act judicially.
Moreover, the propriety of his order can be challenged in revision. It was not,
therefore, correct to say that the remedy of a person aggrieved by an order
under the section was illusory.
P. T. Chandra, Editor, Tribune v. Emperor,
A.I.R. 1942 Lah. 17r, referred to.
The American doctrine that previous
restraints on the exercise of fundamental rights are permissible only if there
is a clear and present danger, can have no application in India, since the
rights guaranteed by Art. 19(1) of the Constitution are not absolute but
subject to restrictions under cls. (2) to (6) of that 425 Article. Anticipatory
action permitted by s. 144 is not, therefore, hit by cls. (2) and (3) of Art.
Scheneck v. U. S. 249 U.S. 47, considered.
State of Madras v. V. G. Row  S.C.R.
597, relied on.
ORIGINAL JURISDICTION: Petition No. 90 of
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental rights.
R. V. S. Mani, for the petitioner.
N.S. Bindra, K. L. Hathi and R. H. Dhebar,
for the respondents.
1961. January 12. The Judgment of the Court
was delivered by MUDHOLKAR, J.-This is a petition under Art. 32 of the
Constitution for issuing an appropriate writ to the respondents not to enforce
the provisions of s.1144 of the Criminal Procedure Code or an appropriate writ
forbidding respondent No. 4 from proceeding further with the prosecution of the
petitioner for offences under ss. 143 and 188 of the Indian Penal Code read
with s. 1 17 thereof, for quashing the proceedings against the petitioner
before respondent No. 4 and for the issue of a writ of habeas corpus to
respondents 1 to 3 directing them to produce or to cause to be produced the
petitioner to be dealt with according to law and to set him at liberty.
The facts which have led up to the petition
are briefly as follows:
There are two unions of textile workers in
Nagpur, one known as the Rashtriya Mill Majdoor Sangh and the other as Nagpur
Mill Majdoor Sangh. The former is a branch of the Indian National Trade Union
Congress. The Rashtriya Mill Majdoor Sangh entered into an agreement with the
management of the Empress Mills regarding the closure of Empress Mill No. 1 for
rebuilding it and regarding the employment of workers who were employed therein
in a third shift. This agreement was opposed by the Nagpur Mill Majdoor Sangh.
On January 25, 1956, a group of workers belonging to the Nagpur Mill Majdoor
Sangh went in a procession to Gujar's Wada, Mahal, Nagpur, where the office of
the Rashtriya Mill Majdoor Sangh is located. 54 426 It is said that a scuffle
took place there between some members of the procession and some workers
belonging to Rashtriya Mill Majdoor Sangh. Thereupon an offence under s. 452
read with s. 147 of the Indian Penal Code was registered by the police on
January 27, 1956. A large procession consisting of the workers of the Nagpur
Mill Majdoor Sangh was taken out. This procession marched through the city of
Nagpur shouting slogans which, according to the District Magistrate, were
provocative. On the same night a meeting was held at the Kasturchand Park in
which it was alleged that the workers belonging to the Nagpur Mill Majdoor
Sangh were instigated by the speakers who addressed the meeting to offer
satyagraha in front of the Empress Mill No. 1 and also to take out a procession
to the office of the Rashtriya Mill Majdoor Sangh. On January 28,1956, the
workers belonging to the Nagpur Mill Majdoor Sangh assembled in large numbers
in Mahal Chowk and on Mahal road blocking the traffic on the road. It is said
that these persons were squatting on the road and as they refused to budge the
District Magistrate passed an order at 4-00 a.m. on January 29, 1956, which
came into force immediately and was to remain in force for a period of fifteen
days prohibiting, among other things, the assembly of five or more persons in
certain areas specified in the order.
The petitioner entertained the view that the
order promulgated by the District Magistrate under s. 144 of the Code of
Criminal Procedure was an encroachment on the fundamental rights of the
citizens to freedom of speech and expression and to assemble peaceably and
without arms, guaranteed under Art. 19(1)(a) and (b) of the Constitution and,
therefore, he held a public meeting outside the area covered by the aforesaid
order. It is alleged that at that meeting he criticised the District Magistrate
and exhorted the workers to contravene his order and take out processions in
the area covered by the order. Thereupon he was arrested by the Nagpur police
for having committed the offences already referred to and produced before a
magistrate, The magistrate remanded him to 427 jail custody till February 15,
1956. The petitioner's application for bail was rejected on the ground that the
accusation against him related to a Don-bailable offence.
Thereupon the petitioner moved the High Court
at Nagpur for his release on bail but his application was rejected on February
22, 1956. The petitioner then presented a petition before the High Court under
s. 491 of the Code of Criminal Procedure for a writ of habeas corpus. That petition
was dismissed by the High Court on May 9, 1956. The petitioner then moved the
High Court for granting a certificate under Art. 132 of the Constitution. The
High Court refused to grant the certificate non the ground that in its opinion
the case did not involve any substantial question of law regarding the
interpretation of the Constitution and was also not otherwise fit for grant of
a certificate. On April 23, 1956, the petitioner presented the present petition
before this Court. The petitioner also sought an exparte order for the stay of
the proceedings before the respondent No. 4 till the decision on the petition
to this Court. This Court admitted the petition but rejected the application
for stay. On May 6, 1956, the petitioner took out a notice of motion for
securing stay of the proceedings before respondent No. 4. On May 28,1956, this
Court ordered that the entire prosecution evidence be recorded but the delivery
of the judgment be stayed pending the decision of this petition.
After the proceedings were stayed by this
Court, the petitioner was released on bail by the trying magistrate.
On behalf of the petitioner Mr. Mani has
raised the following contentions:
(1) That s. 144 of the Code of Criminal
Procedure in so far as it relates to placing of restrictions on freedom of
speech and freedom of assembly confers very wide powers on the District
Magistrate and certain other magistrates and thus places unreasonable
restrictions on the rights guaranteed under Art. 19(1)(a) and (b) of the
(2) The District Magistrate constitutes the
whole legal machinery and the only check for control on 428 his powers is by
way of a petition to him to modify or rescind the order, that thus the District
Magistrate becomes " a judge in his own cause"-presumably, what
learned counsel means is a judge with regard to his own decision-and so the
remedy afforded by the section is illusory. Further the remedy by way of a
revision application before the High Court against the order of the District
Magistrate is also illusory and thus in effect there can be no judicial review
of his order in the proper sense of that expression.
(3 Section 144 adopts "likelihood"
or "tendency" as tests for judging criminality ;
the test of determining the criminality in
advance is unreasonable.
(4) Section 144 substitutes suppression of
lawful activity or right for the duty of public authorities to maintain order.
(5) Even assuming that s. 144 of the Code of
Criminal Procedure is not ultra vires the Constitution, the order passed by the
District Magistrate in this case places restrictions which go far beyond the
scope of clauses (2) and (3) of Art. 19 and thus that order is
Learned counsel also challenged the validity
of the order on grounds other than constitutional, but we need not consider
them here since it will be open to the petitioner to raise them at the trial.
This being a petition under Art. 32 of the Constitution, the petitioner must
restrict himself to those grounds which fall within cl. (1) thereof.
We think it desirable to reproduce the whole
of s. 144.
(1)In cases where, in the opinion of a
District Magistrate, a Chief Presidency Magistrate, Sub-Divisional Magistrate,
or of any other Magistrate (not being a Magistrate of the third class) specially
empowered by the 'State Government' or the Chief Presidency Magistrate or the
District Magistrate to act under this section there is sufficient ground for
proceeding under this section and immediate prevention or speedy remedy is
desirable, such Magistrate may, by a written order stating 429 the material
facts of the case and served in manner provided by section 134, direct any
person to abstain from a certain act or to take certain order with certain
property in his possession or under his management, if such Magistrate
considers that such direction is likely to prevent or tends to prevent,
obstruction, annoyance or injury, or risk of obstruction, annoyance or injury
to any person lawfully employed, or danger to human life, health or safety, or
a disturbance of the public tranquility or a riot, or an affray.
(2) An order under this section may, in cases
of emergency or in cases where the circumstances do not admit of the serving in
due time of a notice upon the person against whom the order is directed, be
passed ex parte.
(3) An order under this section may be
directed to a particular individual, or to the public generally when
frequenting or visiting a particular place.
(4) Any Magistrate may, either on his own
motion or on the application of any person aggrieved, rescind or alter any
order made under this section by himself or any Magistrate subordinate to him,
or by his predecessor in office.
(5) Where such an application is received,
the Magistrate shall afford to the applicant an early opportunity of appearing
before him either in person or by pleader and showing cause against the order;
and if the Magistrate rejects the application wholly or in part, he shall
record in writing his reasons for doing.
(6) No order under this section shall remain
in force for more than two months from the making thereof; unless, in cases of
danger to human life, health or safety, or a likelihood of a riot or an affray,
the 'State Government' by notification in the Official Gazette, otherwise
directs." Sub-section (1) confers powers not on the executive but on
certain Magistrates. This provision has been amended in some States, as for
instance, the former Bombay State where power has been conferred on the
Commissioner of Police to pass an order there under. But we are not concerned
with that matter here 430 because that provision is not contained in the law as
applicable to the former State of Madhya Pradesh with which alone we are
concerned in the matter before us. Under subs. (1) the Magistrate himself has
to form an opinion that there is sufficient ground for proceeding under this
section and immediate prevention or speedy remedy is desirable.
Again the subsection requires the Magistrate
to make an order in writing and state therein the material facts by reason of which
he is making the order there under. The subsection further enumerates the
particular activities with regard to which the Magistrate is entitled to place
Sub-section (2) requires the Magistrate
ordinarily to serve a notice on the person against whom the order is directed
and empowers him to proceed exparte only where the circumstances do not admit
of serving such a notice in due time.
Sub-section (3) does not require any comment.
Sub-section (4) enables a Magistrate to
rescind or alter an order made under this section and thus enables the person
affected, if the order is addressed to a specified individual, or any member of
the public, if the order is addressed to the public in general, to seek, by
making an application, exemption from compliance with the order or to seek a
modification of the order and thus gives him an opportunity to satisfy the
Magistrate about his grievances.
The Magistrate has to deal with applications
of this kind judicially because he is required by sub-s. (5) to state his
reasons for rejecting, wholly or in part, the application made to him.
Finally the normal maximum duration of the
order is two months from the date of its making. The restraints imposed by the
order are thus intended to be of a temporary nature.
Looking at the section as a whole it would be
clear that, broadly speaking, it is intended to be availed of for preventing
disorders, obstructions and annoyances and is intended to secure the public
weal. The powers are exercisable by responsible magistrates and these
magistrates have to act judicially. Moreover, the 431 restraints permissible
under the provision are of a temporary nature and can only be imposed in an
Even so, according to the learned counsel
these provisions place unreasonable restrictions on certain fundamental rights
Firstly, according to learned counsel
restrictions on the rights guaranteed by cls. (2) and (3) of Art. 19 of the
Constitution can be placed in the interest of id public order " and not in
the interest of the " general public ", which expression, according
to him is wider in its ambit than public order and that since s. 144 enables a
magistrate to pass an order in the interest of the general public the
restrictions it authorises are beyond those permissible under cls. (2) and (3)
of Art. 19. It is significant to note that s. 144 nowhere uses the expression
" general public ". Some of the objects for securing which an order there
under can be passed are, " to prevent obstruction, annoyance, injury...........
etc. No doubt, the prevention of such activities would be in the ,public
interest" but it would be no less in the interest of maintenance of "
public order. " Secondly, according to learned counsel, s. 144 is an
amalgam of a number of things to many of which there is no reference even in
el. (2) of Art. 19. In order to enable the State to avail of the provisions of
cls. (2) and (3), he contends, a special law has to be passed and a provision
like s. 144 can serve no purpose. This contention has only to be mentioned to
be rejected. Clauses (2) to (6) of Art. 19 do not require the making of a law
solely for the purpose of placing the restrictions mentioned in them.
Thirdly, according to learned counsel sub-s.
(1) of a. 144 does not require the magistrate to make an enquiry as to the
circumstances which necessitate the making of an order there under. It is true
that there is no express mention anywhere in s. 144 that the order of the
magistrate should be preceded by an enquiry. But we must construe the section
as a whole. The latter part of sub-s. (1) of s. 144 specifically mentions that
the order of the magistrate should sot out the 432 material facts of the case.
It would not be possible for the magistrate to set out the facts unless he
makes an enquiry or unless he is satisfied about the facts from personal
knowledge or on a report made to him which he prima facie accepts as correct.
Clearly, therefore, the section does not confer an arbitrary power on the
magistrate in the matter of making an order.
It is contended that s. 144 of the Code of
Criminal Procedure confers very wide powers upon certain magistrates and that
in exercise of those powers the magistrates can place very severe restrictions
upon the rights of citizens to freedom of speech and expression and to assemble
peaceably and without arms.
It seems to us, however, that wide though the
power appears to be, it can be exercised only in an emergency and for the
purpose of preventing obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safety, or a disturbance of the
public tranquillity or a riot, or " an affray ". These factors
condition the exercise of the power and it would consequently be wrong to
regard that power as being unlimited or untrammelled. Further, it should be
borne in mind that no one has a right to cause " obstruction, annoyance or
injury etc., " to anyone. Since the judgment has to be of a magistrate as
to whether in the particular circumstances of a case an order, in exercise of
these powers, should be made or not, we are entitled to assume that the powers
will be exercised legitimately and honestly.
The section cannot be struck down on the
ground that the magistrate may possibly abuse his powers.
It is also true that initially it is the
magistrate concerned who has to form an opinion as to the necessity of making
an order. The question', therefore, is whether the conferral of such a wide
power amounts to an infringement of the rights guaranteed under Art. 19(1)(a)
and (b) of the Constitution. The rights guaranteed by sub-cl. (a) are not
absolute rights but are subject to limitations specified in cl. (2) of Art. 19
which runs thus:
" Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing law,, or prevent the 433 State
from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the interests of
the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence. " Similarly the rights to which sub-cl. (b)
relates are subject to the limitations to be found in cl. (3) of Art.
19, which runs thus:
" Nothing in sub-clause (b) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of public
order, reasonable restrictions on the exercise of the right conferred by the said
sub-clause. " The Code of Criminal Procedure was an existing law at the
commencement of the Constitution and so, in the context of the grounds on which
its validity is challenged before us, what we have to ascertain is whether the
conferral there under of a power on a magistrate to place restrictions on the
rights to which sub-s. (a) and (b) of Art. 19 relate is reasonable. It must be
borne in mind that the provisions of s. 144 are attracted only in an emergency.
There under, the initial judge of the emergency is, no doubt, the District
Magistrate or the Chief Presidency Magistrate or the sub-divisional magistrate
or any other magistrate specially empowered by the State Government. But then,
the maintenance of law and order being the duty and function of the executive
department of the State it is inevitable that the q question of formation of
the opinion as to whether there is an emergency or not must necessarily rest,
in the first instance, with those persons through whom the executive exercises
its functions and discharges its duties.
It would be impracticable and even impossible
to expect the State Government itself to exercise those duties and functions in
each and every case. The provisions of the section therefore which commit the
power in this regard to a magistrate belonging to any of the classes referred
to therein cannot be regarded as unreasonable. We 55 434 may also point out
that the satisfaction of the magistrate as to the necessity of promulgating an
order under s. 144 of the Code of Criminal Procedure is not made entirely
subjective by the section. We may also mention that though in an appropriate
case a magistrate is empowered to make an order under this section ex parte the
law requires that he should, where possible serve a notice on the person or
persons against whom the order is directed before passing that order. Then
sub-s. (4) provides that any magistrate may either on his own motion or on the
application of any person aggrieved, rescind or alter any order made under this
section. This clearly shows that even where an ex parte order is made the
person or persons affected thereby have a right to challenge the order of the
magistrate. Sub-s. (5) provides that where such a challenge is made, the
magistrate shall give an early opportunity to the person concerned of appearing
before him and showing cause against the order.
The decision of the magistrate in such a
proceeding would undoubtedly be a judicial one inasmuch as it will have been
arrived at after hearing the party affected by the order.
Since the proceeding before the magistrate
would be a judicial one, he will have to set aside the order unless he comes to
the conclusion that the grounds on which it rests are in law sufficient to
warrant it. Further, since the propriety of the order is open to challenge it
cannot be said that by reason of the wide amplitude of the power which s. 144
confers on certain magistrates it places unreasonable restrictions on certain
Learned counsel, however, says that the right
conferred on the aggrieved person to challenge the order of the magistrate is
illusory as he would be a judge with regard to his own decision. This argument
would equally apply to an application for review made in a civil proceeding and
we do not think that it is at all a good one. Again, though no appeal has been
provided in the Code against the Magistrate's order under s. 144, the High
Court has power under s. 435 read with s. 439 of the Code to entertain an
application for the revision of such an order, The powers of the High Court in
435 dealing with a revision application are wide enough to enable it to quash
an order which cannot be supported by the materials upon which it is supposed
to be based. We may point out that sub-s. (1) of s. 144 requires a magistrate
who makes an order there under to state therein the material facts upon which
it is based and thus the High Court will have before it relevant material and
would be in a position to consider for itself whether that material is adequate
or not. As an instance of a case where the High Court interfered with an order
of this kind, we may refer to a decision in P. T. Chandra, Editor, Tribune v.
There, the learned judges quite correctly
pointed out that the propriety of the order as well as its legality can be
considered by the High Court in revision, though in examining the propriety of
the order the High Court will give due weight to the opinion of the District
Magistrate who is the man on the spot and responsible for the maintenance of
public peace in the district. In that case the learned judges set aside an
order of the District Magistrate upon the ground that there was no connection
between the act prohibited and the danger apprehended to prevent which the
order was passed. We would also like to point out that the penalty for
infringing an order under s.
144 is that provided in s. 188, Indian Penal
Code. When, therefore, a prosecution is launched there under, the validity of
the order under s. 144, Criminal Procedure Code, could be challenged. We are,
therefore, unable to accept Mr. Mani's contention that the remedy of judicial
review is illusory.
The argument that the test of determining
criminality in advance is unreasonable, is apparently founded upon the doctrine
adumbrated in Scheneck's case(2) that previous restraints on the exercise of
fundamental rights are permissible only if there be a clear and present danger.
It seems to us, however, that the American doctrine cannot be imported under
our Constitution because the fundamental rights guaranteed under Art. 19 (1) of
the Constitution are not absolute rights but, as pointed out in State of Madras
(1) A.I.R. 1942 Lah. 171.
(2) Scheneck v. U. S., 249 U. S. 47.
436 v.V. G. Row (1) are subject to the
restrictions placed in the subsequent clauses of Art. 19. There is nothing in
the American Constitution corresponding to cls. (2) to (6) of Art. 19 of our
Constitution. The Fourteenth Amendment to the U. S. Constitution provides,
among other things, that " no State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law;
that of the Constitution of the United
States. Then again, the Supreme Court of the United States has held that the
privileges and immunities conferred by the Constitution are subject to social
control by resort to the doctrine of police power. It is in the light of this
background that the test laid down in Scheneck's case (2) has to be understood.
The language of s. 144 is somewhat different.
The test laid down in the section is not merely " likelihood " or
" tendency ". The section says that the magistrate must be satisfied
that immediate prevention of particular acts is necessary to counteract danger
to public safety etc. The power conferred by the section is exercisable not
only where present danger exists but is exercisable also when there is an
apprehension of danger.
Apart from this it is worthy of note that in
Scheneck's case (2) the Supreme Court was concerned with the right of freedom
of speech and it observed:
"It well may be that the prohibition of
law abridging the freedom of speech is not confined to previous restraints,
although to prevent them may have been the main purpose We admit that in many
places and in ordinary times the defendants, in saying all that was said in the
circular, would have been within their constitutional rights. But the character
of every act depends upon the circumstances in which it is done The most
stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre, and causing a (1)  S.C.R. 597. (2) 249 U.S. 47.
437 panic. It does not even protect a man
from an injunction against uttering words that may have all the effect of
force......... The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and degree." Whatever may
be the position in the United States it seems to us clear that anticipatory
action of the kind permissible under s. 144 is not impermissible under cls. (2)
and (3) of Art. 19. Both in el. (2) (as amended in 1951) and in cl. (3) power
is given to the legislature to make laws placing reasonable restrictions on the
exercise of the rights conferred by these clauses in the interest, among other
things, of public order. Public order has to be maintained in advance in order
to ensure it and, therefore, it is competent to a legislature to pass a law
permitting an appropriate authority to take anticipatory action or place
anticipatory restrictions upon particular kinds of acts in an emergency for the
purpose of maintaining public order.
We must, therefore, reject the contention.
It is no doubt true that since the duty to
maintain law and order is cast upon the Magistrate, he must perform that duty
and not shirk it by prohibiting or restricting the normal activities of the
citizen. But it is difficult to say that an anticipatory action taken by such
an authority in an emergency where danger to public order is genuinely
apprehended is anything other than an action done in the discharge of the duty
to maintain order. In such circumstances that could be the only mode of
discharging the duty. We, therefore, reject the contention that s. 144
substitutes suppression of lawful activity or right for the duty of public
authorities to maintain order.
Coming to the order itself we must consider
certain objections of Mr. Mani which are, in effect, that there are three
features in the order which make it unconstitutional.
In the first place, according to him the
order is directed against the entire public though the magistrate has stated
clearly that it was promulgated 438 because of the serious turn which an
industrial dispute had taken. Mr. Mani contends that it is unreasonable to
place restrictions on the movements of the public in general when there is nothing
to suggest that members of the public were likely to indulge in activities
prejudicial to public order.
It is true that there is no suggestion that
the general public was involved in the industrial dispute. It is also true that
by operation of the order the movements of the members of the public would be
restricted in particular areas. But it seems to us that it would be extremely
difficult for those who are in charge of law and order to differentiate between
members of the public and members of the two textile unions and, therefore, the
only practical way in which the particular activities referred to in the order
could be restrained or restricted would be by making those restrictions
applicable to the public generally.
The right of citizens to take out processions
or to hold public meetings flows from the right in Art. 19(1)(b) to assemble
peaceably and without arms and the right to move anywhere in the territory of
India. If, therefore, any members of the public unconnected with the two
textile unions wanted to exercise these rights it was open to them to move the
District Magistrate and apply for a modification of the order by granting them
an exemption from the restrictions placed by the order.
Mr. Mani's contention, and that is his second
ground of attack on the Magistrate's order, is that the only exception made in
the order is with respect to funeral processions and religious processions and,
therefore, it would not have been possible to secure the District Magistrate's
permission for going out in procession for some other purpose or for assembling
for some other purpose in the area to which the order applied. So far as the
customary religious or funeral processions are concerned, the exemption has
been granted in the order itself that if anyone wanted to take out a procession
for some other purpose which was lawful it was open to them under s. 144,
sub-s. (4), to apply for an alteration of the order and obtain a special
439 More omission of the District Magistrate
to make the exemption clause of the order more comprehensive would not, in our
opinion, vitiate the order on the ground that it places unreasonable
restrictions on certain fundamental rights of citizens.
The third and last ground on which Mr. Mani
challenged the constitutionality of the order was that while the order
prohibits the shouting of provocative slogans in public places etc., it does
not give any definition of what was meant by the expression "provocative
slogans ". Therefore, according to Mr. Mani, this order is vague and must
be deemed to be placing unreasonable restrictions on the rights of free speech
of citizens. It seems to us that the expression " provocative slogans
" has necessarily to be understood in the context in which it has been
used in the order and, therefore, it cannot be regarded as vague.
We have, therefore, reached the conclusion
that the order of the District Magistrate is not unconstitutional either
because s. 144 is itself violative of fundamental rights recognised in Art. 19
or on the ground that it is vague and places unreasonable restrictions on those
fundamental rights. We, therefore, dismiss this petition.
Shortly after this petition was made to this
Court, the petitioner presented a special leave petition in which he seeks to
challenge the judgment of the Nagpur High Court dated April 9, 1956, dismissing his writ petition to that High Court. The points raised in the Special
Leave Petition are similar to those raised in this petition. Since we are
dismissing this petition, there can be no question of granting the special
leave to the petitioner to appeal against the judgment of the Nagpur High