MAZDOOR KISAN SHAKTI SANGATHAN versus THE UNION OF INDIA & ANR.

38. The NGT thereafter discussed the ill-effects of the noise pollution by quoting various research and field studies. It also referred to various statutory provisions which aim to curb noise pollution and the judgments of Supreme Court as well as High Courts, including the judgment in the case of Ramlila Maidan Incident v. Home Secretary, Union of India and Others7, wherein right to proper sleep has been considered as fundamental right, being a facet of Article 21 of the Constitution. Applying that law to the facts of the case at hand, it came to conclusion that residents of Jantar Mantar Road are not living a normal life and their difficulties were increasing by the day. Such demonstrations with loud noise were also causing various kinds of health problems like hearing problem, blood pressure, hypertension and other serious diseases relating to heart etc. The NGT found that they were suffering because of gross violation of laws, air pollution and health hazard, due to lack of cleanliness and non-performance of duties by the authorities of the State. All this is endangering their lives. The environmental conditions at Jantar Mantar Road in relation to noise pollution, cleanliness, management of waste and public health had been grossly deteriorated. The situation was becoming alarming, day by day. On that basis, the NGT found merit in the Original Application filed by the residents.

39. The NGT also noted that earlier the protests/dharnas/agitations were allowed only at Ramlila Maidan, near Ajmeri Gate in Delhi. The said area was the place where people used to assemble for purposes of protest march and processions. It was the point from where the agitators MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] were to start for their destinations like Parliament House, office/residence of the Chief Minister, the Home Minister, etc. etc. Subsequently, the battle ground for protestors and agitators came to be the Boat Club near India Gate. Later, the Police shifted the place of agitation from Boat Club to Jantar Mantar, apparently for the reason that the said place was creating obstruction to traffic. It was the department of Police, as is also mentioned in the reply, that fixed this new place for agitations, dharnas, starting of processions, etc. upto a total number of 5000 people and in case of more, the venue would be Ramlila Maidan. Moreover, with passage of time, the place for agitators/protestors to assemble and start their processions had no longer remained at Jantar Mantar but came down to Jantar Mantar road which, as on date, is fully occupied by protestors, agitators, dharnas, temporary structures/make shifts, demonstrations, slogans, display of various articles and even animals like cows, buffalo’s, etc. It had so happened mainly because the agitators and protestors were to ultimately move towards the Parliament House. But strangely, neither the Police nor NDMC tried to prevent them in moving away from Jantar Mantar. Resultantly, the entire Jantar Mantar road, stretching to its total width, has been covered by the protestors. Above all, when the agitation consisting of thousands and thousands of people assemble on Jantar Mantar road, no one is there to check their total number and in case of the number exceeding five thousand, to send them to Ramlila ground at Ajmeri Gate.

40. In the aforesaid conspectus, the NGT has given the directions (already reproduced above) which include shifting the protestors, agitators and the people holding dharnas to the alternative site at Ramlila Maidan, Ajmeri Gate, Delhi.

41. In order to have holistic view of the issue raised in the Writ Petition (Civil) No. 1153 of 2017 it becomes necessary to first deal with the challenge to the aforesaid orders passed by the NGT, as the particular result of these appeals preferred against that judgment would facilitate the Court to find out the solution for Boat Club area which is the subject matter of the writ petition. Therefore, we first proceed to examine the validity of the judgment dated 5th October, 2017, rendered by the NGT.

42. We have already captured the essence of the reasoning on which the judgment of the NGT is based upon. The considerations which prevailed upon the NGT to pass such an order can be stated, in bullet form. These are : • Area in question where the demonstrations were being held is a stretch between the Ashoka Road and the Parliament Street. • The said area is inhabited as there are residential houses. The area is marked as “residential area even under Master Plan 2021”. • Apart from houses of private citizens, there are residences of Members of Parliament and also State Guest House of Kerala, Office of Delhi Metro Corporation as well as offices of some of the political parties on the said road. • Holding of protest on the Jantar Mantar road had become a regular feature, where the protests were being held on continuous basis. • Such protests are not temporary or transient. Protestors had put up tents and other arrangements where people had been staying for months together. Even structures had been put on the side of the street, where arrangement for food, lodging etc. were being made. • The protestors had affixed loud speakers at various places in the area. • Use of these loud speakers at all times, including odd times and night hours, was creating noise pollution and this pollution was getting worsened with the continuous plays of drums, music and microphones etc. This noise pollution was exceeding the permissible limits laid down in the relevant rules. • The sanitation facility provided was grossly inadequate, it was resulting in foul smell emanating from mobile toilet, thereby creating unhygienic conditions in the area. • These unhygienic conditions were compounded by the fact that even cows were brought to the said stretch of road by the protestors and were kept for months together. • On a heavy protest day, the police were completely blocking the Jantar Mantar road by barricading, as a result, residents of the area were forced to park, their vehicles elsewhere and make way to their residences on foot. MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] • It was causing extreme inconvenience to the residents and, in particular, senior citizens and small children. • Their had been instances of medical emergencies where police had to plough the ambulance through the vehicles of the protestors, the police and the crowd. • The traffic jams in the area were a common phenomena. All the aforesaid factors constituted a real and present danger to the health of the residents and also causing serious physical and psychological stress.

43. In the appeals filed by the appellants, questioning the validity of this order, the main ground taken is that it is the fundamental right of the citizens to hold peaceful demonstrations and protest in order to bring out their grievances to the notice of the authorities in power so that the concerned authorities are awakened and attend to their grievances as well as take remedial measures. Therefore, there could not have been a complete ban on demonstrations in the area in question. It was submitted that Jantar Mantar is the best suited place for holding demonstrations because of its proximity to the power that be. It was also argued that if the authorities had not provided appropriate sanitation facilities or it had failed to remove the cows etc., such a failure on the part of the authorities could not be a ground to put a complete ban on the demonstrations. Instead, directions could be given by the NGT to the authorities to take appropriate measures in this behalf. It was also submitted that a recent study undertaken by the AIIMS shows the adverse effect and health consequences of community noise pollution is not limited to Jantar Mantar but extends to the entire Delhi. Therefore, noise pollution could not be a ground to impose such a ban. It was further argued that Ramleela ground, where the protests are now permitted, is far away from the Parliament. Moreover, the said area is infested by traffic congestion all around and, therefore, would cause much more discomfort and hardships to not only the protestors but the traffic in that area, which is also surrounded by hospitals, school, college, hardship places and cricket ground.

44. Respondent nos. 1 to 7 supported the impugned order by laying emphasis on the reasons which are given therein. It was submitted that the fundamental right of the protestors to hold demonstrations etc. does not extend to causing such discomforts and difficulties to the residents so as to violate the fundamental right of the residents under Article 21 of the Constitution:

45. It is further submitted that though the protestors at Jantar Mantar road were being allowed to exercise fundamental right to protest by way of loudspeakers, but the said right cannot be provided by the State to curtail the rights of the residents citizens, qua the right not to listen. The said principle of reasonable restriction on this right is enshrined in Article 19(2) to (6) of the Constitution of India and the burden of proof on State to justify reasonability. This has been upheld by the Supreme Court of India in the case of Ramlila Maidan Incident7.

46. It is also argued that the Central Government, through MoEF & CC, have notified Noise Pollution (Regulation and Control) Rules on 11.02.2000, under Environment (Protection) Act, 1986, wherein difference zones such as industrial, residential, commercial and silence zones have been categorised for the purpose of regulation and control of noise producing and generating sources. These rules govern the restriction of the use of loud speaker, public address system, noise producing system, etc. Provisions have also been made for ambient air quality standards in respect of noise to control the noise from source. The respondent had also mentioned about the harmful effects resulting from noise pollution by the various studies made by World Health Organisation and the study undertaken by AIIMS hospital which shows the adverse effect and health consequences of community noise pollution.

47. Aid was also taken from the following judgments. “(i) Noise Pollution (V), in Re v. Forum Prevention of Environmental and Sound Pollution; (2005) 5 SCC 733 (ii) Anirudh Kumar v. Municipal Corporation of Delhi and Others; (2015) 7 SCC 779 (iii) State of Rajasthan v. G. Chawla and Dr. Pohumal; 1959 Suppl (1) SCR 904 (iv) Rabin Mukherjee and Others v. State of West Bengal and Others; AIR 1985 Cal 222 7 (2012) 5 SCC 1 MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] (v) P.A. Jacob v. The Superintendent of Police, Kottayam and Another; AIR 1993 Kerala 1"

48. We may state at the outset that none of the parties have joined issue insofar as law on the subject is concerned. Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Article 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers a vary valuable right on the citizens, namely, right of free speech. Likewise, Article 19(1)(b) gives right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests.

49. In Babulal Parate v. State of Maharashtra8, this Court observed: “The right of citizens to take out processions or to hold public meetings flows from the right in Art. 19(1)(b) to assemble peacably and without arms and the right to move anywhere in the territory of India.”

50. In Kameshwar Prasad v. State of Bihar9 the Court was mainly dealing with the question whether the right to make a demonstration is protected under Article 19(1)(a) and (b) and whether a government servant is entitled to this right. This Court held : “A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom 8 1961 (3) SCR 423 9 (1962) Supp 3 SCR 369 the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievance.”

51. The Supreme Court has also gone beyond upholding the right to protest as a fundamental right and has held that the State must aid the right to assembly of the citizens. In the Constitution Bench Judgment, Himat Lal K. Shah v. Commissioner of Police, Ahmedabad10 , while dealing with the challenge to the Rules framed under the Bombay Police Act regulating public meetings on streets, held that the Government has power to regulate which includes prohibition of public meetings on streets or highways to avoid nuisance or disruption to traffic and thus, it can provide a public meeting on roads, but it does not mean that the government can close all the streets or open areas for public meetings, thus denying the fundamental right which flows from Article 19(1)(a) and (b). The Court held: “33. This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. xxx xxx xxx 70. 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 space 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 10 (1973) 1 SCC 227 MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] 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 the 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 as a private owner owns his property with the right to exclude 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.” 52. While adjudicating with respect to the validity of police action against protestors, this Court again reiterated that right to protest was a fundamental right guaranteed to the citizens under Article 19. In the case of Ramlila Maidan Incident (supra), the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights: “245. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquillity, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them.” 53. Further, Anita Thakur7, the Court recognised that the right to peaceful protest was a fundamental right under Article 19(1), (b) and (c) of the Constitution, subject to reasonable restrictions. It was finally held that in that while the protestors turned violent first, the police used excessive force: “12. We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The “right to assemble” is beautifully captured in an eloquent statement that “an unarmed, peaceful protest procession in the land of “salt satyagraha”, fast-unto-death and “do or die” is no jural anathema”. It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution. MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] 13. Notwithstanding above, it is also to be borne in mind that the aforesaid rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. It is for this reason, the State authorities many a times designate particular areas and routes, dedicating them for the purpose of holding public meetings. 15. Thus, while on the one hand, citizens are guaranteed fundamental right of speech, right to assemble for the purpose of carrying peaceful protest processions and right of free movement, on the other hand, reasonable restrictions on such right can be put by law. Provisions of IPC and CrPC, discussed above, are in the form of statutory provisions giving powers to the State to ensure that such public assemblies, protests, dharnas or marches are peaceful and they do not become “unlawful”. At the same time, while exercising such powers, the authorities are supposed to act within the limits of law and cannot indulge into excesses……….” 54. The right to protest is, thus, recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from State authorities as well a powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. 55. At the same time, aforesaid rights under Article 19(1)(a) and 19(1)(b) of the Constitution are not untrammeled and unlimited in their scope. Article 19(2) to (6) make a specific provision for imposing reasonable restrictions on the rights conferring restrictions on the exercise of such rights. Articles 19(2) and (3), in this behalf read as under: “(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the 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 sovereignty and integrity of India, 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. (3) 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 the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause” 56. It can be deciphered from the aforesaid provisions that exercise of right to speech conferred in clause (a) and right to assemble peacably and without arms in clause (b) is made subject to reasonable restrictions which can be imposed, inter alia, in the interests of sovereignty and integrity of India or public order. This legal position is also accepted by all the parties. 57. In this hue, we have to examine as to whether total ban of demonstrations etc. at Jantar Mantar road amounts to violation of the rights of the protestors of the Constitution or this would amount to a reasonable restriction in the interest of ‘public order’. There would be also an incidental and interrelated issue, namely, whether the manner in which the demonstrations etc. are held at Jantar Mantar, they violate the fundamental right of the residents guaranteed under Article 21 of the Constitution. If the answer is in the affirmative, it would raise another issue, namely, balancing of the two rights. The right of the protestors under Article 19(1)(a) and 19(1)b) of the Constitution and the rights of the residents under Article 21 of the Constitution, as both the rights are fundamental rights. 58. In the aforesaid context, it would be pertinent to point out that there may be situations where conflict may arise between two fundamental rights. Situation can be conflict on inter fundamental rights, intra fundamental rights and, in certain peculiar circumstances, in respect of some person one fundamental right enjoyed by him may come in conflict with the other fundamental right guaranteed to him. In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail. MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] 59. We may reproduce the following discussion from the judgment of this Court in Subramanian Swamy v. Union of India, Ministry of Law & Ors.11: “Balancing of fundamental rights 136. To appreciate what we have posed hereinabove, it is necessary to dwell upon balancing the fundamental rights. It has been argued by the learned counsel for the petitioners that the right conferred under Article 19(1)(a) has to be kept at a different pedestal than the individual reputation which has been recognised as an aspect of Article 21 of the Constitution. In fact the submission is that right to freedom of speech and expression which includes freedom of press should be given higher status and the individual’s right to have his/her reputation should yield to the said right. In this regard a passage from Sakal Papers (P) Ltd. has been commended to us. It says: (AIR pp. 313-14, para 36) “36. … Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.” (emphasis supplied) 137. Having bestowed our anxious consideration on the said passage, we are disposed to think that the above passage is of no assistance to the petitioners, for the issue herein is sustenance 11 (2016) 7 SCC 221 and balancing of the separate rights, one under Article 19(1)(a) and the other, under Article 21. Hence, the concept of equipoise and counterweighing fundamental rights of one with other person. It is not a case of mere better enjoyment of another freedom. In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat, it has been observed that a particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to coexist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the directive principles in the interests of social welfare as a whole. The Court’s duty is to strike a balance between competing claims of different interests. In DTC v. Mazdoor Congress the Court has ruled that articles relating to fundamental rights are all parts of an integrated scheme in the Constitution and their waters must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. In St. Stephen’s College v. University of Delhi this Court while emphasising the need for balancing the fundamental rights observed that: (SCC p. 612, para 96) “96. … It is necessary to mediate between Article 29(2) and Article 30(1), between letter and spirit of these articles, between traditions of the past and the convenience of the present, between society’s need for stability and its need for change.” 60. In Asha Ranjan v. State of Bihar and Others12, this test of larger public interest to balance two rights has been explained in the following manner: “57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the “greater community interest” or “interest of the 12 (2017) 4 SCC 397 MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] collective or social order” would be the principle to recognise and accept the right of one which has to be protected. 58. In this context, reference to the pronouncement in Rev. Stainislaus v. State of M.P. would be instructive. In the said case, the Constitution Bench was dealing with two sets of appeals, one arising from Madhya Pradesh that related to Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the other pertained to the Orissa Freedom of Religion Act, 1967. The two Acts insofar as they were concerned with prohibition of forcible conversion and punishment therefor, were similar. The larger Bench stated the facts from Madhya Pradesh case which eventually travelled to the High Court. The High Court ruled that that there was no justification for the argument that Sections 3, 4 and 5 were violative of Article 25(1) of the Constitution. The High Court went on to hold that those sections “establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such as conversion by force, fraud and by allurement”. The Orissa Act was declared to be ultra vires the Constitution by the High Court. To understand the controversy, the Court posed the following questions: (Rev. Stainislaus case, SCC p. 681, para 14) “14. … (1) whether the two Acts were violative of the fundamental right guaranteed under Article 25(1) of the Constitution, and (2) whether the State Legislatures were competent to enact them?” 59. It was contended before this Court that the right to propagate one’s religion means the right to convert a person to one’s own religion and such a right is guaranteed by Article 25(1) of the Constitution. The larger Bench dealing with the said contention held: (Rev. Stainislaus case, SCC p. 682, para 20) “20. We have no doubt that it is in this sense that the word “propagate” has been used in Article 25(1), for what the article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.” And again: (SCC p. 682, para 21) “21. … It has to be appreciated that the freedom of religion enshrined in the article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s own religion.” 60. The aforesaid judgment in Rev. Stainislaus case clearly lays down, though in a different context, that what is freedom for one is also the freedom for the other in equal measure. The perception is explicated when the Court has said that it has to be remembered that Article 25(1) guarantees freedom of conscience to other citizens and not merely to followers of particular religion and there is no fundamental right to convert another person. The right is guaranteed to all citizens. The right to propagate or spread one’s religion by an exposition of its tenets does not mean one’s religion to convert another person as it affects the fundamental right of the other. We have referred to this authority as it has, in a way, dwelt upon the “intra-conflict of a fundamental right”. 61. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right. To elaborate, as in this case, the accused has a fundamental right to have a fair trial under Article 21 of the Constitution. Similarly, the victims who are directly affected and also form a part of the MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances. Thus, permissible limitations are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intra-conflict of the right conferred under the same article, like fair trial in this case, the test that is required to be applied, we are disposed to think, it would be “paramount collective interest” or “sustenance of public confidence in the justice dispensation system”. An example can be cited. A group of persons in the name of “class honour”, as has been stated in Vikas Yadav v. State of U.P., cannot curtail or throttle the choice of a woman. It is because choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking”. It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion. Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law. In this regard, we are reminded of an ancient saying: “Yadapi siddham, loka viruddham Na adaraniyam, na acharaniyam” The aforesaid saying lays stress on public interest and its significance and primacy over certain individual interest. It may not thus have general application, but the purpose of referring to the same is that on certain occasions it can be treated to be appropriate. 62. There may be a perception that if principle of primacy is to be followed, then the right of one gets totally extinguished. It has to be borne in mind that total extinction is not balancing. When balancing act is done, the right to fair trial is not totally crippled, but it is curtailed to some extent by which the accused gets the right of fair trial and simultaneously, the victims feel that the fair trial is conducted and the court feels assured that there is a fair trial in respect of such cases. That apart, the faith of the collective is reposed in the criminal justice dispensation system and remains anchored.” 61. Undoubtedly, right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Going by the dicta in Asha Ranjan, principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected. 62. We feel that the pathetic conditions which were caused as a result of the processions, demonstrations and agitations etc. at the Jantar Mantar were primarily because of the reason that authorities did not take necessary measures to regulate the same. Had adequate and sufficient steps were taken by the authorities to ensure that such dharnas and demonstrations are held within their bounds, it would have balanced MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] the rights of protestors as well as the residents. For example, the dharnas and protests were allowed to be stretched almost on the entire Jantar Mantar road, on both sides, and even across the width of the road. Instead, a particular area could have been earmarked for this purpose, sufficiently away from the houses etc. so that there is no unnecessary blockage of roads and pathways. Likewise, the demonstrators were allowed to go on with non-stop slogans, even at odd hours, at night, and that too with the use of loudspeakers etc. The authorities could have ensured that such slogans are within the parameters of noise pollution norms and there are no shoutings or slogans at night hours or early morning hours. Again, these dharnas, agitations and processions could be prohibited on certain occasions, for example, whenever some foreign dignitaries visit and pass through the said area or other such sensitive occasions. The authorities could also ensure that the protestors do not bring their trucks/buses etc. and park those vehicles in and around the residential buildings; the protestors are not allowed to pitch up their tents and stay for days together; they are not allowed to bathe or wash their clothes using Delhi Jal Board tankers or defecate in the open, on pavements; and do not create any unhygienic situations. The authorities could also examine, while allowing such demonstration, as to the number of protestors who are likely to participate and could refuse permission to hold any such demonstration etc. when the number is going to be abnormally large which, if allowed, would per se create hardships of various kinds to the residents. These are some of the examples given by us. The underlying message is that certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed so as to enable the protestors to exercise their right and, at the same time, ensuring that no inconvenience of any kind is caused to the residents. 63. Before the NGT, the authorities took the position that such demonstrations are to be allowed as the area was earmarked for such purposes. The residents, on the other hand, in the petition filed by them, highlighted the infringement of their rights which were caused by these demonstrations. In this kind of adversarial approach adopted by the parties before the NGT, the NGT went by the ground realities and the pathetic situation faced by the residents because of such demonstrations. Though this analysis of the NGT is without blemish, we, however, feel that the solution was not to ban the demonstrations altogether. Instead, the NGT would have directed the authorities to adopt such measures (some of which are indicated by us above) so that there is a balancing of the rights of both the sections of the society. 64. At this juncture, while discussing the aspect of balancing of the two rights, we have to keep in mind certain other relevant factors as well. In the first instance, what needs to be noted is that a portion of Ramlila Maidan has been earmarked for such demonstrations etc. Therefore, that space is already available. One of the argument raised by the petitioner in the writ petition and appellants in the appeal is that Ramlila Maidan is far away from that portion of New Delhi area where there is a concentration of ‘power’ and, therefore, holding protests and demonstration at a far place in Ramlila Maidan would have no impact or very little effect. It was stressed that the purpose of holding such demonstrations and raising slogans is that they reach concerned persons for whom these are meant. This may be correct. However, it is also to be borne in mind that we are living in an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like ‘WatsApp’, ‘Twitter’, ‘Instagram’ etc. which take no time in spreading such events. Secondly, though holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked. On the other hand, it is also to be acknowledged that Ramlila Maidan may not be sufficient to cater to this requirement. Again, this place in old Delhi is a part of very congested area and it has its own limitations when it comes to using this area for such purposes. Therefore, some other area is required. Since, Jantar Mantar was the area chosen by the authorities and has been in use for quite sometime, balancing can be done by permitting a limited part of this area for holding peaceful public meetings, processions etc., at least to small groups and, in such a manner, that there is no disturbance or inconvenience of any nature whatsoever, insofar as residents are concerned. 65. Having regard to the aforesaid discussion, we direct the Commissioner of Police, New Delhi in consultation with other concerned agencies, to devise a proper mechanism for limited use of the area for such purposes but to ensure that demonstrations, etc. are regulated in such a manner that these do not cause any disturbance to the residents MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] of Jantar Mantar road or the offices situated there. Detailed guidelines in this respect can be formulated. We may also clarify that a provision can be made for taking requisite prior permission from the Police Commissioner (or his delegated authority) for holding such demonstration by a particular group and while examining such proposals the parameters can be laid down which shall be looked into in order to decide whether the permission is to be granted or not. Two months’ time is given to the Commissioner of Police, New Delhi for formulating such guidelines. 66. The petitioner in Writ Petition (Civil) No. 1153 of 2017 wants boat club area to be available for demonstrations, etc. The petitioner has successfully demonstrated that it is their fundamental right under Articles 19(1)(a) and 19(1)(b) of the Constitution. At the same time, it is also not denied that there can be reasonable restrictions on exercise of this right in larger public interest. The respondents have also highlighted in equal measure the sensitivity of this area because of its proximity to the Parliament House, North and South Blocks and other Central Government offices, including frequent visits of Heads of foreign States and other such factors. The respondents are also justified in pointing out that alarmingly large number of requests for holding demonstrations at this place are made. Further, intelligence reports reveal that some of such demonstrations, if allowed, may cause serious law and order situation. The respondents are also correct to the extent that this Court has not adopted ‘clear and present danger test’, as applied by the US Courts, and instead it is the ‘apprehension of breach of peace test’ which is to be used in order to decide as to whether a particular demonstration/ dharna is to be allowed or not. When orders passed under Section 144 of the Cr.P.C. are examined in this context, one may not find foul with such orders. These orders do not, on their face, appear to be infected with any illegality as they prohibit public meetings, assembly of five or more persons, processions, demonstrations, dharnas, etc. ‘without written permission’. Further, such orders are passed on the basis of intelligence reports which indicate that ‘unrestricted holding of public meetings’, processions, demonstrations, etc. in the area are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility. 67. The tenor or these orders and the specific language used therein bring about the following two features: (a) there should not be ‘unrestricted’ holding of public meetings, processions, etc.; and (b) as a corollary, the order mentions that such public meetings, processions, demonstrations, etc. would not be allowed ‘without written permission’. 68. The reading of these orders, thus, would indicate that there is no absolute prohibition from holding public meetings, processions, demonstrations, etc. Such activities are to be restricted in larger public interest and, therefore, before any group of persons or person wants to carry out any such processions and dharnas, it has to take prior written permission. This clearly implies that whenever such a request is made, the authority is to examine the same and take a decision as to whether it should allow the proposed demonstration, public meeting etc. or not, keeping in view its likely effect, namely, whether it would cause any obstruction to traffic or danger to human safety or disturbance to public tranquility etc. If requests made are considered and then allowed or rejected keeping in view the aforesaid considerations, there cannot be any quarrel as to the validity of such an order made under Section 144 of the Cr.P.C. That is, however, not the ground reality. 69. No doubt, an order passed under Section 144 of the Cr.P.C. remains valid for a period of sixty days which is the limit prescribed in that provision. However, just before the expiry of one order, another identical order is passed. Such repeated orders, in continuum, have created a situation of perpetuity. It is argued on behalf of the respondents that as there is no change in the situation, which remains the same insofar as sensitivity of this area and specific/peculiar conditions prevailing, such orders in repetitive form are necessitated. Even if we accept this position and proceed on that basis, this would only mean continuous regulation of the proposed public meetings, processions, demonstrations, etc. by not allowing the same in ‘unrestricted’ manner. However, in reality no such activities are allowed at all and, therefore, the situation which is created amounts to ‘banning’ these public meetings, demonstrations, dharnas, etc. altogether rather than ‘regulating’ the same. 70. In the aforesaid conspectus, here also the Commissioner of Police, New Delhi and other official respondents can frame proper guidelines for regulating such protests, demonstrations, etc. As noted MAZDOOR KISAN SHAKTI SANGATHAN v. THE UNION OF INDIA & ANR. [A. K. SIKRI, J.] above, the orders issued under Section 144 prohibit certain activities in the nature of demonstrations etc. ‘without permission’, meaning thereby permission can be granted in certain cases. There can, therefore, be proper guidelines laying down the parameters under which permission can be granted in the Boat Club area. It can be a very restrictive and limited use, because of the sensitivities pointed out by the respondents and also keeping in mind that Ramlila Maidan is available and Jantar Mantar Road in a regulated manner shall be available as well, in a couple of months. Thus, the proposed guidelines may include the provisions for regulating the numbers of persons intending to participate in such demonstrations, prescribing the minimum distance from the Parliament House, North and South Blocks, Supreme Court, residences of dignitaries etc. within which no such demonstrations would be allowed; imposing restrictions on certain routes where normally the Prime Minister, Central Ministers, Judges etc pass through; not permitting any demonstrations when foreign dignitaries are visiting a particular place or pass through the particular route; not allowing firearms, lathis, spears, swords, etc. to be carried by demonstrators; not allowing them to bring animals or pitch tents or stay overnight; prescribing time limits for such demonstrations; and placing restrictions on such demonstrations, etc. during peak traffic hours. To begin with, authorities can permit those processions and demonstrations which are innocuous by their very nature. Illustratively, school children carrying out procession to advance some social cause or candle march by peace loving group of persons against a social evil or tragic incident. These are some of the examples given by us to signify that such demonstrations can be effectively regulated by adopting various measures instead of banning them altogether by rejecting every request for such demonstrations. We, therefore, feel that in respect of this area as well the authorities can formulate proper and requisite guidelines. We direct the Commissioner of Police, New Delhi, to undertake this exercise, in consultation with other authorities, within two months from today. 71. Writ petitions and appeals stand disposed of in the aforesaid terms. Nidhi Jain Matters disposed of.