A decision on moving the Supreme Court to challenge the conditions imposed by the Delhi Police for holding a protest by Anna Hazare and his arrest will be taken on Wednesday after holding discussions with the social activist, Kejriwal, Shanti Bhushan and Kiran Bedi, according to advocate Prashant Bhushan's office.
In a clarification issued on Tuesday night, advocate Pranav Sachdeva said “We have not filed any petition in the Supreme Court or anywhere because we want to hold discussions with Anna and others to decide our future strategy.” He said though a petition was ready, it was decided not to file it on Tuesday as they were advised to get instructions from Mr. Hazare. A decision on whether or not to file petition would be taken on Wednesday, he said.
The scope of Section 144 Cr. PC. relating to a ban on congregation of people, has been dealt with by the Supreme Court in its judgment in the case of Himat Lal Shah vs. Commissioner of Police. (Section 144 Cr. P.C bars any assembly of 5 or more people without permission from the police.)
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It said: “The right to hold a public meeting in a public street is a fundamental right and Rule 7, which gives an unguided discretion dependent on the subjective whim of the authority to grant or refuse permission to hold such a meeting, cannot be held to be valid. Freedom of assembly is an essential element of a democratic system. The basic assumption in a democratic polity is that government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems, and public streets are the ‘natural' places for expression of opinion and dissemination of ideas.”
In Madu Limaye vs. Sub Divisional Magistrate, the Supreme Court held: “The gist of action under section 144 is the urgency of the situation and its efficacy in the likelihood of being able to prevent some harmful consequences. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny. As it is possible to act under the section absolutely and even ex-parte, the emergency must be sudden, and the consequences sufficiently grave.”
It is clear from these decisions that section 144 Cr.PC is an emergency provision to be used in grave situations of public disorder.
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