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Writ Petition No. 612 of 1956, decided on 7th December 1956, under Article 170 of the Constitution.
Art. 9‑Right of public assembly ‑Restrictions‑Reasonableness‑"Public order"‑Meaning Prohibition of public assembly of five or more parsons by District Magistrate‑Criminal Procedure Code (h of 1898), S. 144.
Held, that reasonable restrictions upon the fundamental right of assembling peacefully are permitted only in the interest of public order.
The expression "public order" is not defined anywhere, but danger to human life and safety and the disturbance of public tranquility fall within the purview of the expression.
In determining reasonableness of restrictions, several circumstances have to be taken into consideration, including conditions prevailing at the time, and the nature, extent and duration of the restrictions having regard to all the surround ing circumstances of the case.
Restrictions may be complete or partial. If, in the circumstances of a case, total prohibition of the exercise of a particular fundamental right is reasonable for achieving a purpose for which the imposition of restriction is permissible, then even total prohibition of the exercise of such a right will be legal and valid,
Where, apparently, a religious public meeting was sought to be held, but the District Magistrate was satisfied that the meeting was in the nature of a political gathering which was to be addressed by political leaders and that it was necessary to act under section 144, Criminal P. C. to prevent danger to human life and safety and disturbance of public tranquility.
Held, that the District Magistrate, being the sole judge in the matter, an order of prohibition against public assembly of five or more persons under section 14.1, Criminal P. C., did not encroach upon Art. 9 of the Constitu tion.
Emperor v. Sibnath Banerjee and others A I R 1943 F C 75; Chintamanrao and another v. The State of Madhva Pradesh A I R 1951 S C 118; The State of Madras v. V. G. Row A I R 1.952, S C 196 and Pir Gull Hassan and another v. The Crown P L D 1956 F C 190, ref.
Ahmad Saeed Kirmani for Petitioner.
S. A. Mahmood A. A. G., for Respondent.
Date of hearing : 7th December 1956.
By this writ petition Qari Abdul Hameed Qadri, Secretary of the Anjuman‑e‑Tahaffuz‑e -Haqooq‑e‑A'ma, and Mohtamim, Madrisa A'lia Furqania of Lahore Cantonment, has challenged the order of the District Magistrate, Lahore, dated the 25th of October 1956, whereby, in the exercise of his powers under section 144 of the Code of Criminal Procedure, he had prohibited within the limits of the Lahore Cantonment, the assembly of five or more persons, or the taking out of any procession or holding of public demonstrations in any public place. The order was not applicable to any gathering of persons permitted by the District Magistrate, a genuine marriage or mourning proces sion, purely religious assembly within a place acknowledged for such assembly, and to the members of the police and armed forces. It was to remain in force for a period of two months.
It is alleged by the petitioner that he had made arrangements for holding a public meeting on the 27th of October 1956, at 8 p. m., in the area of Lahore Cantonment to commemorate the birth of the Holy Prophet (may peace be upon Him), and although similar meetings were held by some other associations on the 16th and 17th of October, they were not banned as the organisers of those meetings were members of the Republican Party which is the ruling party in West Pakistan. But as some of the members of the Anjoman‑e Tahaffuz‑e‑Haqooq‑e‑A'ma were Muslim Leaguers, which is a rival party to the Republicans, the District Magistrate had illegally passed the impugned order being in contravention of Article 9 of the Constitution of the Islamic Republic of Pakistan (hereinafter called the Constitution) and that it was passed mala fide. The petitioner has accordingly prayed for the issue of an appropriate writ for quashing the order in question and directing the respondents not to interfere with the right of the petitioner to assemble along with other fellow citizens peacefully and without arms for a lawful purpose.
The respondents have controverted the allegations of the petitioner and the District Magistrate has stated in his written statement, which is supported by his affidavit, that he had received a confidential letter from the Officer Commanding, Station Headquarters. Lahore Cantonment, along with (1) a copy of the poster announcing the meeting ; (2) a copy of a letter from the Executive Officer, (3) a copy of the report of the Cantonment Police, and (4) a representa tion from a large number of respectable of the locality in original, and in view of the tense situation then prevailing amongst the rival parties of the Lahore Cantonment, who were bent upon holding meetings of a political nature on the same day and at about the same time near each other, he was satisfied that there was an apprehension of breach of peace and in order to prevent the disturbance of public tranquility, he had passed the order in question bona fide in the interest of public peace and order which in no way contravened the fundamental rights of the petitioner.
The learned counsel for the petitioner has relied on Article 9 of the Constitution which provides as follows :‑--
"Every citizen shall have the right to assemble peacefully and without arms subject to any reasonable restrictions imposed by law in the interest of public order."
He has argued that it is a fundamental right of every citizen of Pakistan to assemble peacefully and without arms and although reasonable restrictions in the interest of public order can be imposed, the right itself cannot be extinguished even temporarily. According to him, the District Magistrate could have ordered that a particular topic should not be touched in the speeches or that a particular person should not address the meeting, but be could not have passed the general order as he did, altogether prohibiting the assembly of five or more persons for a period of two months. The learned counsel has not been able to cite any authority in support of his contention,
Our Constitution has guaranteed the above right subject to the following three limitations :‑
(1) The assembly must be peaceful ;
(2) the members of the assembly must be unarmed ; and
(3) this right is further subject to any reasonable restric tions imposed by law in the interest of public order.
These restrictions, which can be imposed under the law, are to be found in the various enactments of our existing laws, and in the case before us we are only concerned with restrictions which can be imposed by the District Magistrate under section 144 of the Code of Criminal Procedure, if he considers that such restrictions are likely to prevent, or tend to prevent, obstruction, annoyance or injury or risk of observation, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of public tranquility, or a riot or an affray. Under clause (3) of this section, such an order can be directed to a particular individual or to the public generally when frequenting or visiting a particular place, and under clause (6) no order under this section passed by a competent Magistrate shall remain in force for more than two months from the making thereof.
The principal question which requires determination is whether the impugned order contravenes Article 9 of the Constitution. The main part of the order is to the following effect :‑
"Whereas it has been made to appear to me that certain persons intend to hold religious‑cum‑political meetings in the area of Lahore Cantonment, which are likely to cause a breach of peace in that locality and a grave situation
And whereas in my opinion there are sufficient grounds for proceeding under section 144 of the Code of Criminal Procedure, 1898, and immediate prevention is desirable and the directions hereinafter appearing are necessary in order to prevent danger to human life and safety and disturbance of the public tranquility
Now, therefore, I, S. Alamgir, C. S. P., District Magis trate, Lahore, in exercise of the powers conferred by section 144 of the Code of Criminal Procedure, 1898, do hereby prohibit within the limits of the Lahore Cantonment the assembly of five or more persons, or the taking out of any procession, or holding of demonstrations in any public place."
As is apparent from the order it was passed on account of a sudden emergency in order to prevent danger to human life and safety and disturbance of the public tranquility. Reasonable restrictions upon the fundamental right of assembl ing peacefully are permitted only in the interests of public order. It is, therefore, to be seen if the order passed by the District Magistrate was in the interest of public order or not as is envisaged by Article 9 of the Constitution. What is the meaning of the words "public order" It is not defined anywhere. The expression "public order" occurs in Entry I of the Provincial List of Fifth Schedule of our Constitution. The same expression occurred also in Item 1 of List 2 of Schedule VII of the Government of India Act, 1935. The above Item also included "Preventive detention for reasons connected with the maintenance of public order". In Emperor v. Sibnath Banerjee and others (A I R 1943 F C 75) it was held by their Lordships of the late Federal Court of India that this expression was wide enough to include public safety or interest. In Romesh Thappar v. The State of Madras (A I R 1950 S C 124) it was held by the Supreme Court of India that "the expres sion public order' is an expression of wide connotation and signifies that state of tranquility prevailing among the members of a political society as a result of the internal regulations enforced by the Government which they have instituted". Surely, the danger to human life and safety and the disturbance of the public tranquility fall within the purview of the expression "public order", and if an order is passed by the District Magistrate to prevent danger to human life and safety and the disturbance of public tranquility it is an order passed in the interest of public order within the meaning of Article 9 of the Constitution.
The next point which requires determination is if the restrictions imposed by the District Magistrate are reasonable restrictions as contemplated by Article 9 of the Constitution. If they are unreasonable, the order although it may be perfectly legal under section 144 of the Code of Criminal 'Procedure will be illegal under Article 9 of the Constitution. But if they are reasonable then the order cannot be challenged on this ground. Restrictions may be complete or partial. If, in the circumstances of a case, total prohibition of the exercise of a particular fundamental right is reasonable for achieving a purpose for which the imposition of restriction is permissible, then even the total prohibition of the exercise of such a right will be legal and valid. Drastic remedies may be necessary to meet conditions in an emergency giving rise to serious and urgent problems. But what is the test of reasonableness In Chintamanrao and another v. The State of Madhyya Pradesh (AIR 1951 S C 118), Mahajan J., who delivered the judgment of the Supreme Court, observed as follows :‑
"The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. The word reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates."
In another case The State of Madras v. V. G. Row (A I R 1952 S C 196), Patanjali Sastri C. J., who delivered the judgment of the Court, observed :‑
"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature ox the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict."
It, therefore, follows that in determining the reason ableness of restrictions, several circumstances shall have to be taken into consideration, including the conditions prevailing at the time, and the nature, extent and duration of the G restrictions of the fundamental right having regard to all the surrounding circumstances of the case. It is possible that in one set of circumstances, the restrictions imposed may be quite unreasonable, while in a different set of circumstances they may be reasonable. There cannot be laid down any absolute and fixed standard by which to test the reason ableness of restrictions upon fundamental rights, but it can be safely assumed that in judging the same an objective standard, i.e., the standard of the average prudent man shall have to be applied. The concept of reasonableness is nothing but that of harmonising individual right with collective interests.
The fundamental rights having been guaranteed by our Constitution, this Court will never countenance any attempts at illegal encroachment on the liberty of the subject by the executive. These rights are a part of the priceless treasure of the citizen, and in the absence of reasonable restrictions imposed by law, every citizen has the right to enjoy them to their maximum. The executive should, there fore, be on its guard to exercise its powers under the law with due care and caution so that their orders do not impinge on the fundamental rights of the people in excess of the reason able restrictions which can be imposed under the law. But if reasonable restrictions are imposed in accordance with law, then the citizen should have no ground to complain, for his individual interests are after all subordinate to the larger interests of maintaining peace and public order in the country. All individual liberty must give way to considerations of national safety and security.
In the light of these tests, we now proceed to examine the restrictions imposed by the District Magistrate vide his order dated the 25th of October 1956. It is obviously not a total prohibition. It is confined to the area of Lahore Cantonment. It has no application to a genuine marriage or mourning procession or to a purely religious assembly within a place acknowledged for such an assembly. It also does not apply to any gathering of persons for which permis sion has been obtained from the District Magistrate. It being a Cantonment area, where our armed forces are stationed, it requires special considerations for determining the nature of reasonable restrictions. No prudent man would tolerate the army being influenced by the political controversies raging in the country. It would be dangerous to let the floodgates open into the Cantonment area for the rival political leaders to let loose their venomous attack against each other. If, in the present case the District Magistrate, who was the sole judge in the matter, was satisfied that there was apprehension of breach of the peace, and the disturbance of public tranquility could not be prevented unless the restrictions mentioned in the order are imposed, can it be said that the restrictions are unreasonable and contravene the fundamental right guaranteed under Article 9 of the Constitution If applying an objective standard, the answer is in the negative, as it should be, then the order in question is perfectly legal and valid and cannot be challenged on the ground of unreasonableness. The District Magistrate after having been satisfied about the urgency of the matter could not have abdicated and confessed helplessness until the disturbance had actually occurred. In times of danger and crises it is clearly his duty to act and to act with promptitude. The maintenance of peace and order being the special responsibility of the District Magistrate, it is his duty to exercise his powers under section 144 of the Code of Criminal Procedure if and when he feels satisfied that it is necessary to exercise such a power.
The petitioner and other citizens residing in the Cantonment area have not been prevented from holding meetings outside the Cantonment area and if they intend to hold purely religious meetings they can hold them in the mosques. The poster itself shows that it was not intended to be a purely religious meeting. The District Magistrate was satisfied that it was in the nature of a political meeting which was to be addressed amongst others by Khan Abdul Qaiyum Khan and Mian Mumtaz Muhammad Daultana, who, so far as we are aware, do not claim to be religious leaders.
We have, therefore, no doubt in our minds that the restrictions which were imposed by the District Magistrate in the circumstances of the case were reasonable and were in accordance with law. Judged by any standard the restrictions actually imposed cannot be said to be unreason able. The argument that the order in question has totally deprived the petitioner of his fundamental right to assemble peacefully does not appear to be sound. For special reasons the exercise of the right has been suspended temporarily only for a fixed period and in a particular locality. The right still vests in the petitioner and he can freely exercise it outside the area covered by the order. The restriction is confined only to a particular area and, therefore, the contention of the learned counsel for the petitioner that it has completely extinguished one of the fundamental rights is without any substance. We accordingly hold that the order of the District Magistrate does not, in any manner, contravene Article 9 of the Constitution.
The learned counsel for the petitioner has also urged that the order was passed mala fide, and that, in any case, the petitioner had intended to exercise his lawful right for a lawful purpose, and if others intended to break the peace on that account, then should have been prevented from doing so and he should not have been deprived of his legal right. From the material placed on the record, we do not think any case of mala fides is made out. On the contrary, we are satisfied from the affidavit of the District Magistrate that the order was passed bona fide. As regards the question of the exercise of the lawful right, it was held by their Lordships of the late Federal Court of Pakistan in Pir Gul Hassan and another v. The Crown (P L D 1956 F C 190), that "even were such a right in all respects a lawful one, the District Magistrate would be under a higher obligation to maintain public peace and tranquility, should these have been suddenly threatened by the exercise of the aforesaid right, than his obligation to protect individual or individuals laying claim to such right in the exercise thereof. In such circumstances, it is clearly right that the needs of public order should be paramount."
For the aforesaid reasons, we do not find any merit in this petition and dismiss it, but in view of the important constitutional point involved in this petition, there will be no order as to costs.
A. H. Petition dismissed.