Case Summary and Outcome

The High Court of Andhra Pradesh set aside the Government Order by which the Government of Andhra Pradesh sought to regulate public meetings/assemblies on roads, roadsides, and margins. The Petitioners challenged the validity of this Order and contended that the Government Order violated their freedom of speech and expression under Articles 19(1)(a) and (1)(b) of the Indian Constitution. While setting aside the Government Order, the High Court held that the net effect of the Government Order was to ban all demonstrations and assemblies organized by citizens or political parties on public highways, state highways, municipal and panchayat roads, etc, violated constitutional rights under Article 19 (freedom of speech & expression) and Article 21 (Right to life). The Court emphasized that the power granted to the police was for the regulation, not a complete restriction, of assemblies and processions. The Court set aside the Government Order as it found it arbitrary, excessive, and lacking in proportionality. The Court concluded that the Government Order failed the tests of reasonability and proportionality.

Facts

On January 2, 2023, the Government of Andhra Pradesh passed a Government Order (‘GO’) under the Police Act, of 1861 [Police Act]. The Order observed a concerning trend of fatal incidents, injuries, and public inconvenience resulting from gatherings on roads and road margins.  While recognizing the constitutional right to peaceful assembly, the Government emphasized the duty of the police to regulate such activities in the interest of public safety, as mandated by Section 30 of the Police Act.  Through this order, the Government of Andhra Pradesh restricted the organization of public gatherings and processions on State Highways and National Highways. The order mandated that the Director General of Police, District Collectors, and Superintendents of Police should not issue licenses for holding meetings or rallies on highways, narrow roads, panchayat, and municipal roads throughout the State. It was also recommended that licenses should not be granted for holding meetings on State Highways and National Highways. In most cases, alternative venues, such as public grounds or private locations, could be suggested to mitigate inconvenience to the public. However, some applications might be considered under rare and exceptional circumstances and with documented reasons. These guidelines were established under the Police Act, of 1861. [para. 1 and 12]

Kala Ramakrishna, Secretary of the Communist Party of India (Andhra Pradesh) filed a Writ Petition before the High Court of Andhra Pradesh challenging the Government Order as violative of the Fundamental Rights inter alia including “freedom of speech and expression” under Article 19 of the Constitution of India. [para. 2]

Decision Overview

Chief Justice Prashant Kumar Mishra of the High Court of Andhra Pradesh wrote the decision along with Justice DVSS Somayajulu. The primary issue before the Court was to determine whether the Government Order regulating the protests on Highways and other narrow roads was violative of Article 19 (freedom of speech & expression) and Article 21 (Right to life) under the Constitution of India. 

The Petitioner asserted that the Right to Free Speech is a fundamental right protected under Article 19 of the Constitution of India. According to the Petitioner, the government’s issuance of a Government Order effectively banning public meetings on roads and road margins is an infringement on this constitutional right. Petitioner further contended that democracy and dissent are interconnected, and public meetings serve as a crucial platform to propagate ideas, express opinions, and highlight the shortcomings of those in power. Petitioner contended that the Government Order violates Article 19(1)(a) and (1)(b) by stifling the voice of the opposition and imposing a virtual ban on meetings in public places, particularly on roads. Additionally, the Petitioner also raised concerns about the vague powers conferred on authorities by the GO, arguing that the lack of defined exceptional or rare circumstances gives arbitrary power to the police to ban public meetings. Petitioner contended that the Government Order was issued with a mala fide intention to stifle public opinion and violates constitutional guarantees of assembly, protest, rallies, and marches. Lastly, the Petitioner emphasized the historical significance of rallies and public protests in India’s freedom movement and contended that the powers granted under the Police Act should be regulatory rather than allowing for a total ban on public assemblies. [para. 3-7]

On the other hand, the State contended that the Government Order did not impose a complete ban on public meetings or processions but aimed at regulating their conduct. Emphasizing the need for regulation due to recent fatal incidents, particularly stampedes that cause loss of life, the State contended that the Government Order provided a framework for authorities to grant permissions for meetings while considering specified issues. The State also asserted that the Government Order did not restrict the fundamental right to free speech but rather addressed the smooth movement of vehicular traffic and transportation on roads, justifying reasonable restrictions on public meetings and processions to ensure public safety. The State concluded that the Government Order was within its regulatory authority to manage such activities without infringing on constitutional rights.

The Court noted that a plain interpretation of Section 30 of the Police Act stipulates that the power vested in the police authorities is limited to the regulation of assemblies and processions. The heading of Section 30 explicitly states its purpose as the “regulation” of public assemblies, processions, and licensing thereof. [para. 13-14] The Court broke down the sections, emphasizing that the District Superintendent or Assistant District Superintendent of Police, under Section 30(1), has the discretionary authority to direct and prescribe routes for assemblies and processions on public roads. Section 30(2) empowers a Magistrate to require a license application if an uncontrolled procession is deemed “likely to cause a breach of the peace.” [para. 15-16] The Court underscored that the requirement for obtaining a license is contingent upon the officer forming an opinion regarding potential disturbances. Therefore, the Court held that the power granted to the police under the Police Act is specifically for the regulation of assemblies and processions, particularly when they pose a risk of obstructing roads, rather than a complete restriction on the right to peaceful assembly and protest in public spaces. [para. 20]

The High Court referred to the Supreme Court case, Himat Lal K. Shah v Commissioner of Police, (1972), which held that the public had a right to hold assemblies and processions on and along streets, however, it was necessary to regulate the conduct and behavior or action of persons constituting such assemblies or processions [para. 22]. The Court then referred to the Ramlila Maidan Incident in Re, (2012), which established the need for reasonable restrictions on the right to hold demonstrations. The Court further acknowledged whether a restriction amounted to a total prohibition was a question of fact that had to be determined according to each case. [para. 26] While distinguishing the current case from previous cases, such as the Mazdoor Kisan Shakti Sangathan v Union of India and Another, (2018), and the Amit Sahni v. Commissioner of Police, (2020), the Court observed that these cases dealt with people occupying “public roads for a long period“, whereas the present case dealt with processions and assemblies organized by political parties on roads, highways, and streets. [para. 29]

The Court noted that in the present case, the Government Order lacked specific criteria or guidelines for defining “rare and exceptional circumstances” under which licenses for assemblies or processions could be granted. The Court held this lack of clarity conferred arbitrary powers on authorities to decide when to grant permissions [para. 38]. The Court observed that “power cannot be unfettered and/or purely discriminatory. Unfettered discrimination leads to arbitrariness. It is accepted that absolute power corrupts and this is why Courts insist on the tests of reasonability proportionality etc., in such cases.” [para. 34]

While the Court acknowledged that the Government Order was intended to stop the disruption of transportation of goods and services caused on highways and prevent engagement to civil life and emergency services on narrow municipal and panchayat roads, the Court emphasized that the highest Courts of the land have recognized the right of an individual or a group of people to assemble peacefully and to protest peacefully on public roads. [para. 35-36] The Court held that in the Himat Lal K. Shah case, the Supreme Court of India had held that before the enactment of the Constitution itself, the citizen had a right to hold a meeting on public streets subject to the control of appropriate authority regarding time and place of the meetings and to the consideration of the public order. The Court opined that the failure to describe what the ‘rare and exceptional cases’ are conferred the arbitrary power upon the authorities to refuse permissions for holding meetings.” [para. 37-38]

The High Court noted that the Government Order had specifically stated that “no license be granted for any application seeking permission to conduct a meeting on State Highways and National Highways” which virtually took away the discretion that was to be exercised by the officers at a lower level. The Court held that the Government Order directed them not to issue licenses, on roads, highways, streets, etc., and to suggest alternative places, for congregations, processions which was the exact opposite of what the Act contemplated by leaving it to the discretion of the officer. [para. 38]

The Court emphasized that the mere occurrence of an accident or incident at a specific location should not be an “objective/cause” to restrict the right to assemble or conduct processions on all other roads. The Court held that the State should have conducted a comprehensive examination of the circumstances surrounding the previous accident or incident and then formulated appropriate safeguards and guidelines to prevent any recurrence. The Court asserted that “this is far more than a reasonable restriction on the right of a citizen or of a political party to assemble and to hold meetings.” [para. 40-41]The Court concluded that the power conferred by the Government Order was arbitrary, and excessive and also failed on the test of proportionality. The Court opined that it was not a reasonable restriction. While the avowed objective of the State to prevent loss of life could be deemed as reasonable, the Court found that the decision-making process was taken away by the directions in the Government Order, and ultimately, arbitrary power was conferred on an officer concerning a fundamental right. [para. 45] While setting aside the Government Order, the Court held that the net effect of the contents of the Government Order was to impose a ban on all meetings at public highways, state highways, municipal and panchayat roads, etc, which did not stand the test of law. [para. 46]

While highlighting the importance of the right to hold assemblies and demonstrations, the Court held that it is clear from a reading of these judgments that historically, culturally, and politically, “the tradition of public meetings, processions, assemblies, etc., on streets, highways, etc., have been recognized in this country. These meetings, processions, etc., constitute an important facet of our political life. The freedom struggle is replete with examples of processions, dharnas, satyagrahas, etc., conducted on the roads which led to India’s tryst with destiny on 15.08.1947. If the political history of contemporary Andhra Pradesh is also considered, it is clear that there were many processions, padayatras, assemblies, etc., which were conducted on public roads/highways across the State. [para. 43]