Calcutta High Court (Appellete Side)
Ps (Chamber) vs The State Of West Bengal & Ors on 7 August, 2025
Court No. 8 WPA (P) No. 311 of 2025
07.08.2025
(Item No. 04 Sanjay Kumar Shaw
Ps (Chamber) Vs.
The State of West Bengal & Ors.
Mr. Amritam Mandal,
Mr. Nayan Chowni
... for the Petitioner
Mr. Kishore Dutta Ld. AG
Mr. S. Banerjee
Ms. Sumita Shaw
Mr. Diptendu Narayan Banerjee
Mr.Soumen Chatterjee
..... for the State
1. Heard on admission. The principle relief claimed in
this petition is for issuance of a writ of prohibition
prohibiting the respondents from allowing /permitting
any protest/rally/demonstration to be organized in
the name of “Nabanna Abhijan” or any other name
whatsoever in the surrounding places of “Nabanna”.
In addition, it is prayed that writ of mandamus be
issued to the Government for framing proper
guidelines for ensuring public peace, safety and
convenience during such protest.
2. Learned Counsel for the petitioner submits that
because of RG Kar incident, a rally took place last
year near “Nabanna” which created chaos and
untoward incidents had taken place. The area is
densely populated. In introducing the present
protest, no one has taken responsibility. Thus, if any
untoward incident takes place, it will be difficult to fix
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responsibility on anyone. The protest is being
projected in social media in the name of “Parents of
RG Kar Student victim”. Thus, such protest be
prohibited by issuing ad interim order.
3. Learned Advocate General Mr. Kishore Dutta argued
almost in the same tune and urged that on last
occasion when protest took an ugly shape, about 47
police personals were injured and one lost his eyes.
The Government properties were destroyed and in
this backdrop, it is better if the protest takes place on
an alternative place decided as per policy dated
31.07.2025. The places are at 1. Mandirtala Bus
Station, 2. Howrah Maidan and 3. Under Bankim
Setu Flyover, where 200, 500 and 500 persons
respectively can assemble for protest.
4. During the course of hearing, both the sides fairly
submitted that although right to protest is a
fundamental right under the Constitution, there must
be some balancing of fundamental rights. The area
where protest is proposed is a congested business
area. Thus, protest can take place at earmarked
place as per the said policy.
5. No other point is pressed by learned Counsel for the
parties.
6. The order of Commissioner of Police, Howrah dated
2nd July, 2025 “Annexure-P-1” shows that the police
is already aware of the situation and, therefore,
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decided to invoke Sub-Section (1) of Section 163 of
Bhartiya Nagarik Suraksha Sanhita, 2023, read
with the Sub-Section (3) of said Section and passed a
prohibitory order. In our opinion, the Government is
best suited to take care of law and order situation.
An order was passed by Division Bench on
23.08.2024 in the case of Debranjan Banerjee vs.
The State of West Bengal & Ors. reported in
WPA(P) 360 of 2024 in relation to the protest in
“Nabanna” on the same issue last year. The Division
Bench opined as under:-
7. The sum and substance of the entire argument is pointed
at a single object of prohibiting the rally or the protest at
„Nabanna‟ or in other words, no protest or the rally should be
permitted in the State unless the permission is sought from
the Police.
8. On the other hand, the learned Advocate General places
several provisions of the Police Act and the Police Regulation
of Bengal, 1943 which contains an exhaustive provision
relating to the rally or assembly of the persons in a public
place. It is contended that without seeking permission from
the Police, such rally or protest cannot be permitted and,
therefore, the Court should restrain 4 the holding of the
protest or the rally at „Nabanna‟. The Advocate General has
further flagged an issue that assembling or gathering of
persons or the rally cannot be permitted within the highly
sensitive zone as the right to hold rally/march being a
fundamental right is subject to the reasonable restrictions
imposed by the State.
9. To buttress the aforesaid submission, the Judgment of the
Apex Court in case of Amit Sahni (Shaheen Bagh, In Re) Vs.
Commissioner of Police & ors. reported in (2020)10 SCC
439, Babulal Parate vs. State of Maharastra & Ors.
reported in AIR 1961 SC 884, Mazdoor Kishan Shakti
Sangathan vs. Union of India and Ors. reported in
(2018)17 SCC 324 and Ramlila Maidan Incdent, in re:
reported in (2012) 5 SCC 1 are cited. The Advocate General
further submits that the protest or rally cannot be permitted
nor the gathering can be allowed at a public place and
placed reliance upon a Judgment of the Apex Court
retendered in the case of the Railway Board representing the
4Union of India vs. Niranjan Singh reported in (1969) 1
SCC 502.
10. All the aforesaid judgments have in unequivocal
terms held that right to protest in a peaceful manner
is ingrained under Articles 19(1)(a) and 19 (1)(b) of the
Constitution of India contained in Part-III of the
Constitution of India. The right emanating from the
aforementioned Articles leads to an inescapable conclusion
that no one can be deprived of his fundamental rights nor
can be taken away or abridged. Such right is obviously
subject to the Article 19 (2) of the Constitution of India and,
therefore, it is con-extensive. 5
11. All the judgments as quoted above are uniform that the
right to protest in a peaceful manner is the core fundamental
rights of every citizen of the country and, therefore, the
injunction to restrain a citizen of the country to protest and
flag the issues in peaceful manner cannot be curbed.
12. In fact, the said issue was raised before the Supreme
Court in a suo motu writ-petition (Criminal No. 2 of 2024) and
an argument was advanced to the effect that permission to
organize the peaceful protest does not overshadow the
regulatory powers of the authority in accordance with law.
The Apex Court in its order dated 22.08.2024 in unequivocal
terms held that the permission to hold the protest in peaceful
manner cannot be construed as an injunction upon the State
from exercising such lawful powers entrusted in terms of the
law. The Apex Court reiterated and reaffirmed its view that
the peaceful protest should not be disturbed or disrupted and
the State or its instrumentalities should not take any
precipitate action against the incident that took place at R.G.
Kar Medical College Hospital in the following words:- “Mr.
Kapil Sibal, senior Counsel appearing on behalf of the State
of West Bengal and the Kolkata Police submits that while this
Court has permitted peaceful protests, the order should not
be misconstrued to mean that the authorities are precluded
from exercising their regulatory powers in accordance with
law. This Court has not injuncted the State from exercising
such lawful powers as are entrusted in terms of the law.
However, we categorically reaffirm that peaceful protests
should not be disturbed or disrupted, and the State shall not
take any precipitate action against those who are peacefully
protesting against the incident which took place at R.G. Kar
Medical College Hospital.” 6
13. The Apex Court in the said suo motu writ-petition passed
an order on 20.08.2024 when the issue relating to the
protests across the State was brought to its notice with
categorical observation that the Government of West Bengal
shall observe necessary restraint in peaceful protest
conducted by any quarter of the civil society in relation to
that untoward and brutal incident at R.G. Kar Medical
College Hospital in the following:- “We expect that the
Government of West Bengal shall observe necessary restraint
in the face of peaceful protest conducted by a quarter of civil
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society bearing on the issue which forms the subject matter
of the incident which took place at Kolkata. It shall be
ensured that the power of the State is not unleashed on
peaceful protestors.”
14. It would be unnecessarily burdening the order if all the
judgments so cited are dealt with in seriatim for the simple
reason that the petitioner has categorically averred in the
instant writ-petition that that the said protest and/or rally is
called by the quarter of the civil societies who are not
affiliated with political parties or social organizations.
15. In view of the order of the Apex Court, we do not
think that any prohibitory order as sought for can be
granted in favour of the petitioner.
(Emphasis Supplied.)
5. A plain reading of this order in relation to similar
protest makes it clear that this Court declined to pass
any prohibitory order as sought for by the petitioner
therein. This Court poignantly held that right to
protest is a fundamental right. Thus, no case is made
out for passing any blanket prohibitory order on the
similar protest.
6. As noted above, the police has already issued the
prohibitory order and it will be open for the
Government to implement the said prohibitory order
in accordance with law and inform the organizers
about adequate alternative place for protest. While
not granting any interim relief as prayed for against
protest, we are inclined to observe that it will be
lawful for the persons participating in the protest to
protest peacefully as law abiding citizen and not
cause any harm to the police or Government
authorities, buildings, public properties etc. It has
been enshrined in the Constitution of India which
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emphasizes the importance of protecting public
property. This Article 51A (i) contemplates that it is
the duty of every citizen to “Safeguard public property
and to abjure violence”.
7. List this matter with WPA (P) 360 of 2024 for
analogous hearing.
8. Report (if any) be filed in 04 weeks. Reply affidavit in
15 days therefrom. List thereafter.
(SUJOY PAUL, J)
(SMITA DAS DE, J.)