Calcutta High Court (Appellete Side)
Shankar Bera And Ors vs The State Of West Bengal & Ors on 29 April, 2025
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
Item No 267
29.04.2025
ct.no.35
(Suman) WPA 9157 of 2025
Shankar Bera and Ors.
versus
The State of West Bengal & Ors
Mr. Billwadal Bhattacharyya, Sr. Adv.,
Mr. Kaustav Bagchi,
Mr. Anish Kumar Mukherjee,
Mr. Suryaneel Das,
Ms. Megha Datta,
Mr. Tamoghna Pramanick.
.....For the Petitioners.
Mr. Kishore Datta, ld. AG
Mr. Swapan Banerjee, ld. AGP
Ms. Sumita Shaw
Mr. Dipendu Narayan Banerjee,
Mr. Soumen Chatterjee
... For the State-Respondent(s)
Mr. Kalyan Bandopadhyay, Sr. Adv.,
Mr.Sirsanya Bandopadhyay, Sr. Standing Counsel,
Mr. Arka Kumar Nag,
Mr. Debopriyo Karan.
… For the Respondent Nos. 3 & 4
The petitioners have preferred the present writ
petition as earlier they were approached by an
organization, namely Sanatani Sanskar Anusilan
Seba Trust for using their ground to organize Maha
Sanatani Dharma Sammelan with an expected
gathering of 50,000 people on 30.04.2025 from 7.00
a.m. to 8.00 p.m. on the day of Akshaya Tritiya. The
2
petitioners being the land owners readily agreed and
issued no objection certificate to the organizer trust
for such Dharma Sammelan/religious congregation
and as such communication was made to the police
authorities vide correspondence dated 19.03.2025.
The petitioners allege that from reliable sources
they have come to know that the organisers of the
said Dharma Sammelan filed a writ petition being
WPA 8819 of 2025 after the police authorities
rejected their intimation vide letter dated
17.04.2025. It has also come to the knowledge of
the petitioners that the President of the said
Sanatani Sanskar Anusilan Seba Trust namely one
Rameshwar Bera who was the petitioner No. 1 in the
said writ petition under undue influence became
hostile and subsequently took a stand of obstructing
the Dharma Sammelan/religious congregation to be
held on 30.04.2025.
The petitioners, therefore, themselves decided
to organize the said Maha Sanatani Dharma
Sammelan on the occasion of Akshaya Tritiya
between 7.00 a.m. to 8.00 p.m. on 30.04.2025 over
the land owned by them and to that effect an
intimation has been sent to the police authorities
seeking permission to use microphones and
3
loudspeakers by way of letter dated 22.04.2025 and
the same was communicated through e-mail.
The petitioners highlighted the purpose of
organizing the Dharma Sammelan on the date of
Akshay Tritiya i.e. 30.04.2025 and to that effect, Mr.
Billwadal Bhattacharya, learned senior advocate
drew the attention of the Court to the relevant part
of paragraphs 8 & 9 which are as follows :-
“8. It is stated that Akshaya Tritiya to
Hindus has tremendous religious and
spiritual significace. Akshaya Tritiya is
considered to be one of the most
auspicious days based on solar and lunar
position.
Religious beliefs and significance of this
day is about worshiping the descent of
River Ganga from the heavens to the earth,
the day on which the sixth Avatar of Lord
Vishnu, Lord Parashuram was born, and
also the day on which Sri Krishna handed
over the Akshaya Patra to Draupadi
during the times of Mahabharat. Akshaya
Tritiya is the day of performing Tarpan
(religious homage) towards deities and
ancestors thereby surrendering towards
4deities and discharging debts towards
ancestors. The said event is also
significant for worshiping mother earth
paying for Dhanyalakshmi (fertile crops),
Dhanalakshmi (wealth) and
Baibhablakshmi (prosperity). It is one of
the holiest days for Hindus for spiritual
upliftment and cleansing as well as
improving karma by Japa (recitations),
Tapa (penance), Dana (donation), Snana
(ritualistic bathing) and homa (ritual by fire
ceremony).
9. The petitioners state that in view of the
profound religious and spiritual
significance associated with Akshaya
Tritiya as detailed hereinabove, the
holding of the proposed “Maha Sanatani
Dharma Sammelan” is not only justified
but becomes an essential expression of
their faith. The observance of this
auspicious day through communal
worship, traditional rituals and acts of
devotion is deeply rooted in centuries-old
Sanatani practices. It is, therefore,
imperative that the Dharma Sammelan be
held, both to honour the sacredness of the
5occasion and to enable Hindu community
to perform their due rights and rituals in
accordance with their deeply held beliefs.”
Learned advocate for the petitioners submits
that the organisers would take responsibility so far
as maintenance of drinking water supply, bio-toilets
as well as there would be volunteers who would be
manning the crowd and since the programme is a
religious congregation, there is hardly any scope of
tension or serious pandemonium being created in
the ground situated near the Contai Railway Station
which belongs to them.
Learned Advocate appearing for the petitioner
submits that the petitioners being individuals are
entitled to organize such dharma sammelan and the
reason on which the police authorities are rejecting
is not acceptable in law. Reference was made to
State of Odisha and Another -versus- Satish
Kumar Ishwardas Gajbhiye, reported in (2021) 17
SCC 90. Attention was drawn to Paragraphs 12 &
18 which reads as follows:
“12. To proceed with a structured
preliminary enquiry, it must have statutory
sanction. A statutory authority can do only such
acts which are permissible under the statute and
the authority cannot be permitted to do
6something which is not provided in law. This
principle was formulated by the Calcutta High
Court nine decades ago in Maniruddin
Bepari v. Chairman of the Municipal
Commissioners [Maniruddin Bepari v. Chairman
of the Municipal Commissioners, 1935 SCC
OnLine Cal 296] , in which it was inter alia held :
(SCC OnLine Cal)
“It is a fundamental principle of law that a
natural person has the capacity to do all lawful
things unless his capacity has been curtailed by
some rule of law. It is equally a fundamental
principle that in the case of a statutory
corporation it is just the other way. The
corporation has no power to do anything unless
those powers are conferred on it by the statute
which creates it.”
18. We have quoted the judgment
[Maniruddin Bepari v. Chairman of the Municipal
Commissioners, 1935 SCC OnLine Cal 296] of
the Calcutta High Court, with which we concur.
The principle of law that emerges from that
judgment is that though a private citizen is
permitted to do what is not prohibited in law, a
statutory authority can do only what is
permissible in law. As such in our considered
view, the order directing the preliminary inquiry
in the present case, in the form it was
undertaken, was not justified in law. In
situations where Rules do not provide for holding
preliminary enquiry before initiating disciplinary
action, the principle laid down in Champaklal
Chimanlal Shah [Champaklal Chimanlal
Shah v. Union of India, 1963 SCC OnLine SC 42
: AIR 1964 SC 1854] would prevail. But the
7
nature of enquiry in such a situation would be in
the nature of information gathering exercise, on
the basis of which the authorities would decide
whether to proceed in the matter or not. In this
case, as we have already observed, the
preliminary enquiry resulted in issue of article of
charges, the phrasing of which clearly revealed
formation of opinion of the authorities in finding
of guilt of Respondent 1.”
Emphasizing on exercise of right of practicing
religious belief and practices, Ld. Advocate relied
upon Commissioner of Police and Others. -versus-
Acharya Jagadishwarananda Avadhuta and
Another reported in (2004) 12 SCC 770,
Paragraphs 57,59,60 and 62 has been relied upon,
which reads as follows :
“57. The exercise of the freedom to act and
practice in pursuance of religious beliefs is as
much important as the freedom of believing in a
religion. In fact to persons believing in religious
faith, there are some forms of practicing the
religion by outward actions which are as much
part of religion as the faith itself. The freedom to
act and practice can be subject to regulations. In
our Constitution, subject to public order, health
and morality and to other provisions in Part III of
the Constitution. However, in every case the
power of regulation must be so exercised with
the consciousness that the subject of regulation
is the fundamental right of religion, and as not to
unduly infringe the protection given by the
8Constitution. Further, in the exercise of the power
to regulate, the authorities cannot sit in judgment
over the professed views of the adherents of the
religion and to determine whether the practice is
warranted by the religion or not. That is not their
function.
59. These observations were quoted with
approval by this Court in Gulam Abbas v. State
of U.P. [(1982) 1 SCC 71 : 1982 SCC (Cri) 82 :
(1982) 1 SCR 1077] , SCR at pp. 1130-33. It was
observed that the authorities should not in the
face of such religious rights prohibit religious
processions on the “facile ground of public peace
and tranquillity” but adopt a positive approach to
protect fundamental rights under Articles 25 and
26 of the Constitution.
60. Moreover, “public order” has a larger
connotation than “law and order”. Contravention
of law to affect public order must affect the
community or the public at large. A mere
disturbance of law and order leading to disorder
is not one which affects “public order”. (See Ram
Manohar Lohia (Dr.) v. State of Bihar [AIR 1966
SC 740 : (1966) 1 SCR 709] .)
62. The Police Commissioner answers the
charge of discrimination by stating that
“activities of Ananda Margis cannot come within
the scope of religious functions or practices as
compared to well-established practices in
festivals of Muslims and Sikhs”. It is not for the
Police Commissioner to give his disapproval to a
practice of a particular sect which is in his
opinion not well established. To allow any
authority to judge the truth or falsity of a
9
religious belief or practice is to destroy the
guarantee of religious freedom in the
Constitution.”
Attention was drawn to Himat Lal K. Shah
-versus- Commissioner of Police, Ahmedabad And
Another reported in (1973) 1 SCC 227, and
reliance was made on Paragraphs 15 & 35, to stress
that the power of the state is to regulate and not to
impose unreasonable restrictions :
“15. Coming to the first point raised by the
learned counsel, it seems to us that the word
“regulating” in Section 33(o) would include the
power to prescribe that permission in writing
should be taken a few days before the holding of
a meeting on a public street. Under Section 33(o)
no rule could be prescribed prohibiting all
meetings or processions. The section proceeds on
the basis that the public has a right to hold
assemblies and processions on and along streets
though it is necessary to regulate the conduct
and behaviour or action of persons constituting
such assemblies or processions in order to
safeguard the rights of citizens and in order to
preserve public order. The word “regulate”,
according to Shorter Oxford Dictionary, means,
“to control, govern, or direct by rule or regulation;
to subject to guidance or restrictions”. The
impugned Rules do not prohibit the holding of
meetings but only prescribe that permission
should be taken although it is not stated on what
grounds permission could be refused. We shall
deal with this aspect a little later.
10
35. If the right to hold public meetings flows
from Article 19(1)(b) and Article 19(1)(d) it is
obvious that the State cannot impose
unreasonable restrictions. It must be kept in
mind that Article 19(1)(b), reads with Article 13,
protects citizens against State action. It has
nothing to do with the right to assemble on
private streets or property without the consent of
the owners or occupiers of the private property.”
Reference was made to Dr. Anindya Gopal
Mitra & Anr. -versus- State of West Bengal and
Ors. 1973 SCC OnLine Cal 124 for distinguishing
‘Public Order’ and Law & Order, and to that effect
Paragraph 51 was pointed out which states:
“51. It has also been held at paragraph 18 of
page 641 to the following effect which is set out
below:
“(18) The foregoing discussion yields, the
following results: (1) “Public Order” is
synonymous with public safety and tranquility; it
is the absence of disorder involving breaches of
local significance in contradistinction to national
upheavals, such as revolution, civil strife, war
affecting the security of the State; (2) there must
be proximate and reasonable nexus between the
speech and the public order; (3) S. 3, as it now
stands, does not establish in most of the cases
comprehended by it any such nexus, (4) there is
a conflict of decision on the question of
severability in the context of an offending
provision the languate whereof is wide enough to
cover restrictions both within and without the
11limits of constitutionally permissible legislation;
one view is that it cannot be split up if there is
possibility of its being applied for purposes not
sanctioned by the Constitution and the other
view is that such a provision is valid if it is
severable in its application to an object which is
clearly demarcated from other object or objects
falling outside the limits of constitutionally
permissible legislation; and (5) the provisions of
the section are so inextricably mixed up that it is
not possible to apply the doctrine of severability
so as to enable us to affirm the validity of a part
of and reject the rest.”
In my view, the decision in the aforesaid
case lends support to the conclusion that the
right to enjoyment of fundamental rights cannot
be taken away on conjectural and hypothetical
basis. As I have already noted that no instance
has been cited resulting in actual law and order
problem from the BJP’s meeting already held
apart from the quotations from the speeches.
2. Trem Chand v. Union of India reported in
AIR 1981 S.C. 613. In the above case it was held
that any Police apprehension is not enough for
passing order of externment. Some ground or
other is not adequate. There must be clear and
present danger based upon credible material
which makes the movements and acts of person
in question alarming or dangerous or fraught
with violence. Likewise, there must be sufficient
reason to believe that the person proceeded
against is so desperate and dangerous that his
mere presence in the locality or in part thereof is
hazardous to the community and its safety. A
12
stringent test must be applied in order to avoid
easy possibility to use of abuse of powers to the
detriment of fundamental freedom. Natural
justice must be fairly complied with and vague
allegations and secret hearings are gross
violation of the provisions of Articles 14 and 19
of the Constitution. The Act permits externment
provided the action is bona fide. All power
including the Police power must be informed by
fairness if it is to survive judicial scrutiny.
3. Reference may also be made to Goolam
Abbas‘s case in AIR 1981 S.C. 2198. In this
aforesaid decision Supreme Court observed
object of section 144 is to preserve public peace
and tranquility and as such attempt should be
made to regulate the rights instead of prohibiting
the right to hold procession totally.”
Learned counsel relied upon Ratilal
Panachand Gandhi -versus- State of Bombay,
reported in (1954) 1 SCC 487 and referred to
paragraphs 15 and 26 for emphasising on
interpretation of rights guaranteed under the
Constitution of India:
“15. Article 25 of the Constitution
guarantees to every person and not merely to the
citizens of India, the freedom of conscience and
the right freely to profess, practise and
propagate religion. This is subject, in every case,
to public order, health and morality. Further
exceptions are engrafted upon this right by
clause (2) of the Article. Sub-clause (a) of clause
(2) saves the power of the State to make laws
regulating or restricting any economic, financial,
13political or other secular activity which may be
associated with religious practice; and sub-
clause (b) reserves the State’s power to make
laws providing for social reform and social
welfare even though they might interfere with
religious practices. Thus, subject to the
restrictions which this Article imposes, every
person has a fundamental right under our
Constitution not merely to entertain such
religious belief as may be approved of by his
judgment or conscience but to exhibit his belief
and ideas in such overt acts as are enjoined or
sanctioned by his religion and further to
propagate his religious views for the edification
of others. It is immaterial also whether the
propagation is made by a person in his
individual capacity or on behalf of any church or
institution. The free exercise of religion by which
is meant the performance of outward acts in
pursuance of religious belief, is, as stated above,
subject to State regulation imposed to secure
order, public health and morals of the people.
What sub-clause (a) of clause (2) of Article 25
contemplates is not State regulation of the
religious practices as such which are protected
unless they run counter to public health or
morality but of activities which are really of an
economic, commercial or political character
though they are associated with religious
practices.
26. The only other section of the Act to which
objection has been taken is Section 58 and it
deals with the levy of contribution upon each
public trust, at certain rates to be fixed by the
rules, in proportion to the gross annual income of
14
such trust. This together with the other sums
specified in clause (2) of Section 57 makes up the
Public Trusts Administration Fund, which is to be
applied for payment of charges incidental to the
regulation of public trusts and for carrying into
effect the provisions of this Act. As this
contribution is levied purely for purposes of due
administration of the trust property and for
defraying the expenses incurred in connection
with the same, no objection could be taken to the
provision of the section on the ground of its
infringing any fundamental rights of the
appellants. The substantial contention that has
been raised in regard to the validity of this
provision comes, however, under the second
head of the appellants’ arguments indicated
above. The contention is that the contribution
which is made payable under this section is in
substance a tax and the Bombay State
Legislature was not competent to enact such
provision within the limits of the authority
exercisable by it under the Constitution. This
raises a point of some importance which requires
to be examined carefully.”
Petitioners referred to Shri Sitaram Sugar Co.
Ltd. and Anr. -versus- Union of India and Others
reported in (1990) 3 SCC 223 and stressed on
paragraphs 50 & 51 for illustrating scope of judicial
review:
“50. As stated by Lord Hailsham of St.
Marylebone L.C. (HL) in Chief Constable of the
15North Wales Police v. Evans [(1982) 1 WLR 1155,
1160-61 : (1982) 2 All ER 141] :
“The function of the court is to see that
lawful authority is not abused by unfair
treatment and not to attempt itself the task
entrusted to that authority by the law…. The
purpose of judicial review is to ensure that the
individual receives fair treatment, and not to
ensure that the authority, after according fair
treatment, reaches on a matter which it is
authorised by law to decide for itself a
conclusion which is correct in the eyes of the
court”.
In the same case Lord Brightman says:
“Judicial review, as the words imply, is not
an appeal from a decision, but a review of the
manner in which the decision was made.”
51. A repository of power acts ultra vires
either when he acts in excess of his power in the
narrow sense or when he abuses his power by
acting in bad faith or for an inadmissible
purpose or on irrelevant grounds or without
regard to relevant considerations or with gross
unreasonableness. See Associated Provincial
Picture Houses Ltd. v. Wednesbury
Corporation [(1948) 1 KB 223 : (1947) 1 All ER
498] . In the words of Lord Macnaghten in Mayor
& C. Westminster Corporation v. London and
North Western Railway [1905 AC 426, 430 : 93
LT 143] .
“….It is well settled that a public body
invested with statutory powers such as those
conferred upon the corporation must take care
not to exceed or abuse its powers. It must keep
16within the limits of the authority committed to it.
It must act in good faith. And it must act
reasonably. The last proposition is involved in
the second, if not in the first.”
In Barium Chemicals Ltd. v. Company Law
Board [1966 Supp SCR 311 : AIR 1967 SC 295 :
(1966) 36 Comp Cas 639] , this Court states :
(SCR pp. 359-60, per Shelat, J.)
“…. Even if (the statutory order) is passed in
good faith and with the best of intention to
further the purpose of the legislation which
confers the power, since the authority has to act
in accordance with and within the limits of that
legislation, its order can also be challenged if it
is beyond those limits or is passed on grounds
extraneous to the legislation or if there are no
grounds at all for passing it or if the grounds are
such that no one can reasonably arrive at the
opinion or satisfaction requisite under the
legislation. In any one of these situations it can
well be said that the authority did not honestly
form its opinion or that in forming it, it did not
apply its mind to the relevant facts.”
In Renusagar [(1908) 1 KB 441 : 77 LJ KB
236] , Mukharji, J., as he then was, states : (SCC
p. 104, para 86)
“The exercise of power whether legislative
or administrative will be set aide if there is
manifest error in the exercise of such power
or the exercise of the power is manifestly
arbitrary. Similarly, if the power has been
exercised on a non-consideration or non-
application of mind to relevant factors the
exercise of power will be regarded as
17manifestly erroneous. If a power (whether
legislative or administrative) is exercised on
the basis of facts which do not exist and
which are patently erroneous, such exercise
of power will stand vitiated”.”
Mr. Kishore Dutta, learned Advocate General
appearing for the respondent nos. 1, 2, 5, 6 and 7
submits that the State has serious objection as the
Dharma Sammelan which the petitioners are
adamant to organise on the date so fixed cannot be
permitted and to that effect, reasons have already
been assigned earlier. The State has drawn the
attention of the Court to the grounds so assigned in
the earlier communication which has been enclosed
along with the writ petition and emphasised that
there would be a large gathering which was
announced in the month of December, 2024 in
respect of inauguration of Shree Jagannath Temple
at Digha in the district of Purba Medinipur. The
Hon’ble Chief Minister, West Bengal would
inaugurate the same and there would be several
dignitaries and invitees from different States wherein
an expected gathering of one lakh devotees would
have to be catered by the administration. It has also
been contended by the local police administration
that on 30th April, 2025 and on the following days
more than one lakh devotees are expected to visit
18Nachinda Sitala Temple under Marishda Police
Station to pay their homage during Sitala Puja on
the day of holy Akshya Tritia for which also a huge
contingent of police officers are required to be
deployed both for traffic and crowd management.
The aforesaid two programmes would require
sufficient number of officers and force to handle the
huge gathering and as such, the present programme
which has been proposed by the organizers which
are to be held for the first time may lead to serious
law and order problem. Additionally, it has been
stated that the only major route of conveyance is
National Highway (NH-116B) and all the
programmes which have been cited including the
proposed Dharma Sammelan are in the vicinity of
the National Highway which is bound to cause
inconvenience not only to the safety and security of
the dignitaries but also to the participants and the
devotees.
Learned Advocate General further contended
that there is no significance for which such Dharma
Sammelan is to be held on 30th April, 2025 for the
first time. The petitioners are bound to prove their
right for such Dharma Sammelan to be held on the
date so proposed as the State is of the opinion that
the Dharma Sammelan which has been
19subsequently proposed to be held is because of
strength to show the organizational capacity which
is a zeal of showing political strength. The reasons
assigned by the police authorities are not absurd
and do not call for any interference in view of the
balanced approach shown by the administration
that the Puja which is held at Nachinda Sitala
Temple for years together has been allowed by the
administration.
In order to fortify his arguments, learned
Advocate General has relied upon number of
precedents.
Learned Advocate General relied upon Dr. M.
Ismail Faruqui and Others -versus- Union of
India and Others reported in (1994) 6 SCC 360
and referred to paragraphs 77 & 78 which holds:
“77. It may be noticed that Article 25
does not contain any reference to property
unlike Article 26 of the Constitution. The
right to practise, profess and propagate
religion guaranteed under Article 25 of the
Constitution does not necessarily include
the right to acquire or own or possess
property. Similarly this right does not
extend to the right of worship at any and
every place of worship so that any
hindrance to worship at a particular place
per se may infringe the religious freedom
20guaranteed under Articles 25 and 26 of the
Constitution. The protection under Articles
25 and 26 of the Constitution is to religious
practice which forms an essential and
integral part of the religion. A practice may
be a religious practice but not an essential
and integral part of practice of that religion.
78. While offer of prayer or worship is a
religious practice, its offering at every
location where such prayers can be offered
would not be an essential or integral part of
such religious practice unless the place has
a particular significance for that religion so
as to form an essential or integral part
thereof. Places of worship of any religion
having particular significance for that
religion, to make it an essential or integral
part of the religion, stand on a different
footing and have to be treated differently
and more reverentially.”
Relying upon Indian Young Lawyers
Association and Others (Sabarimala Temple-5J.)
-versus- State of Kerala and Others reported in
(2019) 11 SCC 1 it was emphasised that organizing
the programme and the purposes for which it has
been represented are never an essential part of the
practice of the religion. Emphasis was laid on
paragraphs 285 & 286 which reads as follows:
“285. In its jurisprudence on religious
freedom, this Court has evolved a body of
21principles which define the freedom of
religion under Article 25 and Article 26 to
practices “essential” to the religion. The
Constitution has been held to protect not
only freedom of religious belief, but acts
done in pursuance of those beliefs. While
the views of a religious denomination are to
be taken into consideration in determining
whether a practice is essential, those views
are not determinative of its essentiality. The
Court has assumed a central role in
determining what is or is not essential to
religious belief. Intrinsic to the role which
the Court has carved out, it has sought to
distinguish between what is religious and
what is a secular practice, even if it is
associated with a religious activity. Going
further, the Court has enquired into whether
a practice is essential to religion.
Essentiality of the practice would, as the
Court has held, depends on whether the
fundamental character of a religion would
be altered, if it were not observed. Above
all, there is an emphasis on constitutional
legitimacy, which underscores the need to
preserve the basic constitutional values
associated with the dignity of the
individual. The ephemeral distinction
between religion and superstition becomes
more coherent in terms of the need to
preserve fundamental constitutional values
associated with human liberty.
286. In determining the essentiality of
a practice, it is crucial to consider whether
the practice is prescribed to be of an
22obligatory nature within that religion. If a
practice is optional, it has been held that it
cannot be said to be “essential” to a
religion. A practice claimed to be essential
must be such that the nature of the religion
would be altered in the absence of that
practice. If there is a fundamental change in
the character of the religion, only then can
such a practice be claimed to be an
“essential” part of that religion.”
State also relied upon M. Siddiq (Dead)
Through Legal Representatives -versus- Mahant
Suresh Das and Others reported in (2019) 18 SCC
631 and referred to paragraphs 40, 41 & 57 for
reiterating its earlier contention, the same reads as
follows:
“40. With the above observation the
Constitution Bench held that offer of prayer
or worship is a religious practice, its offering
at every location would not be an essential
or integral part of such religious practice
unless the place has a particular
significance for that religion so as to form an
essential or integral part thereof. Places of
worship of any religion having particular
significance for that religion, to make it an
essential or integral part of the religion,
stand on a different footing and have to be
treated differently and more reverentially.
41. From what we have noticed above
following are deducible:
23
(i) Places of religious worship like
mosques, churches, temples, etc. can be
acquired under the State’s sovereign power
of acquisition, which does not violate
Articles 25 or 26 of the Constitution.
(ii) The right to practice, profess and
propagate religion guaranteed under Article
25 does not extend to the right of worship at
any and every place of worship so that any
hindrance to worship at a particular place
per se may infringe the religious freedom
guaranteed under Articles 25 and 26 of the
Constitution.
(iii) The protection under Articles 25 and
26 of the Constitution is to religious practice
which forms an essential or integral part of
the religion.
(iv) A practice may be a religious practice
but not an essential and integral part of
practice of that religion.
(v) While offer of prayer or worship is a
religious practice, its offering at every
location where such prayers can be offered
would not be an essential or integral part of
such religious practice unless the place has
a particular significance for that religion so
as to form an essential or integral part
thereof.
The Court itself has drawn a distinction
with regard to the place of a particular
significance for that religion where offer of
prayer or worship may be an essential or
integral part of the religion.
24
57. The above observation by the
Constitution Bench has been made to
emphasise that there is no immunity of the
mosque from the acquisition. We have
noticed that Constitution Bench had held
that while offer of prayer or worship is a
religious practice, its offering at every
location where such prayers can be offered
would not be an essential or integral part of
such religious practice unless the place has
a particular significance for that religion so
as to form an essential or integral part
thereof. The above observation made in
para 78 has to be reads along with
observation made in para 82. What the
Court meant was that unless the place of
offering of prayer has a particular
significance so that any hindrance to
worship may violate right under Articles 25
and 26, any hindrance to offering of prayer
at any place shall not affect right under
Articles 25 and 26. The observation as
made in para 82 as quoted above has to be
understood with the further observation
made in the same paragraph where this
Court held : (M. Ismail Faruqui case [Ismail
Faruqui v. Union of India, (1994) 6 SCC 360]
, SCC p. 418, para 82)
“82. … Obviously, the acquisition
of any religious place is to be made only in
unusual and extraordinary situations for a
larger national purpose keeping in view that
such acquisition should not result in
extinction of the right to practise the religion,
if the significance of that place be such.
25
Subject to this condition, the power of
acquisition is available for a mosque like
any other place of worship of any religion.
The right to worship is not at any and every
place, so long as it can be practised
effectively, unless the right to worship at a
particular place is itself an integral part of
that right.”
Mr. Kalyan Bandopadhyay, learned senior
advocate appearing for the respondent no. 3, i.e. the
Director General and the Inspector General of Police
and the respondent no.4, i.e. the Superintendent of
Police, Purba Medinipur, submits that the land
owners are not organising a private programme with
few persons and they claim that around fifty
thousand persons would be participating in the
Dharma Sammelan. The said Dharma Sammelan is
under the garb of a political counterblast to the
inauguration of Shree Jagannath Temple to be held
at Digha which was announced on or about 11th
December, 2024 by the Administration and the
invitees in the said programme would be from
different States of India which would include
dignitaries including invitees of Z+ category security.
Further the participants in the said programme will
be more than one lakh. As such, the police
authorities and the district administration would
26
have to exercise due care, caution and diligence for
peacefully holding such programme. Learned senior
advocate drew an analogy that when the
inauguration of Ram Janmabhumi Temple was done
at Prayagraj/Ayodhya whole of the said districts
were closed and only the invitees and the dignitaries
were allowed to participate in such programme, no
other gathering was allowed on the said date. It is
the absolute discretion of the administration in
respect of certain programmes to allow or not to
allow the other events or gathering in and around
the vicinity of a prescheduled programme and the
same is for the purpose of peacefully and efficiently
organising and concluding the event. It was
repeatedly submitted by the learned senior advocate
that the said programme has not only overtones of a
political event under the garb of a Dharma
Sammelon, but the same is at the behest of the
Leader of the Opposition to disrupt the inauguration
of Shree Jagannath Temple. Additionally, it was
submitted that the locus of the land owners are
peculiar as they do not have any infrastructure to
host a fifty thousand crowd and they are not even a
registered organisation who can take the onus of
handling such a large crowd or gathering which they
propose to do and it would be incumbent on the
27
State authorities to take the responsibility in case
such a gathering is allowed which would disrupt the
eventful pre-scheduled gathering at Digha.
In order to emphasise his arguments, Mr.
Bandopadhyay, learned senior advocate has relied
upon a number of precedents.
Reference was made to State of Karnataka
and Another -versus- Dr. Praveen Bhai Thogadia
reported in (2004) 4 SCC 684 and reliance was
placed on paragraph 7:
7. Communal harmony should not be
made to suffer and be made dependent
upon the will of an individual or a group of
individuals, whatever be their religion, be it
of a minority or that of the majority. Persons
belonging to different religions must feel
assured that they can live in peace with
persons belonging to other religions. While
permitting holding of a meeting organised
by groups or an individual, which is likely
to disturb public peace, tranquillity and
orderliness, irrespective of the name, cover
and methodology it may assume and adopt,
the administration has a duty to find out
who the speakers and participants are and
also to take into account previous instances
and the antecedents involving or concerning
those persons. If they feel that the presence
or participation of any person in the meeting
28or congregation would be objectionable, for
some patent or latent reasons as well as the
past track record of such happenings in
other places involving such participants,
necessary prohibitory orders can be
passed. Quick decisions and swift as well
as effective action necessitated in such
cases may not justify or permit the
authorities to give prior opportunity or
consideration at length of the pros and
cons. The imminent need to intervene
instantly, having regard to the sensitivity
and perniciously perilous consequences it
may result in if not prevented forthwith,
cannot be lost sight of. The valuable and
cherished right of freedom of expression
and speech may at times have to be
subjected to reasonable subordination to
social interests, needs and necessities to
preserve the very core of democratic life —
preservation of public order and rule of law.
At some such grave situation at least the
decision as to the need and necessity to
take prohibitory actions must be left to the
discretion of those entrusted with the duty
of maintaining law and order, and
interposition of courts — unless a concrete
case of abuse or exercise of such sweeping
powers for extraneous considerations by the
authority concerned or that such authority
was shown to act at the behest of those in
power, and interference as a matter of
course and as though adjudicating an
appeal, will defeat the very purpose of
legislation and legislative intent. It is useful
29
to notice at this stage the following
observations of this Court in the decision
reported in Madhu Limaye v. Sub-Divisional
Magistrate, Monghyr [(1970) 3 SCC 746] :
(SCC p. 757, para 24)
“24. The gist of action under Section
144 is the urgency of the situation, its
efficacy in the likelihood of being able to
prevent some harmful occurrences. As it is
possible to act absolutely and even ex parte
it is obvious that the emergency must be
sudden and the consequences sufficiently
grave. Without it the exercise of power
would have no justification. It is not an
ordinary power flowing from administration
but a power used in a judicial manner and
which can stand further judicial scrutiny in
the need for the exercise of the power, in its
efficacy and in the extent of its application.
There is no general proposition that an
order under Section 144, Criminal
Procedure Code cannot be passed without
taking evidence : see Jagrupa
Kumari v. Chotey Narain Singh [(1936) 37
Cri LJ 95 (Pat)] which in our opinion is
correct in laying down this proposition.
These fundamental facts emerge from the
way the occasions for the exercise of the
power are mentioned. Disturbances of
public tranquillity, riots and affray lead to
subversion of public order unless they are
prevented in time. Nuisances dangerous to
human life, health or safety have no doubt
to be abated and prevented. We are,
however, not concerned with this part of the
30
section and the validity of this part need not
be decided here. Insofar as the other parts
of the section are concerned the keynote of
the power is to free society from menace of
serious disturbances of a grave character.
The section is directed against those who
attempt to prevent the exercise of legal
rights by others or imperil the public safety
and health. If that be so the matter must fall
within the restrictions which the
Constitution itself visualizes as permissible
in the interest of public order, or in the
interest of the general public. We may say,
however, that annoyance must assume
sufficiently grave proportions to bring the
matter within interests of public order.”
By referring to Shri Sitaram Sugar Co.
Ltd. and Anr. -versus- Union of India, (1990) 3
SCC 223 learned Senior Advocate stressed on the
reasonableness of the findings of the Inspector In-
Charge, Contai Police Station. Emphasis was laid on
paragraph 49 which reads as follows:
49. Where a question of law is at issue, the court
may determine the rightness of the
impugned decision on its own independent
judgment. If the decision of the authority
does not agree with that which the court
considers to be the right one, the finding of
law by the authority is liable to be upset.
Where it is a finding of fact, the court
examines only the reasonableness of the
31
finding. When that finding is found to be
rational and reasonably based on evidence,
in the sense that all relevant material has
been taken into account and no irrelevant
material has influenced the decision, and
the decision is one which any reasonably
minded person, acting on such evidence,
would have come to, then judicial review is
exhausted even though the finding may not
necessarily be what the court would have
come to as a trier of fact. Whether an order
is characterised as legislative or
administrative or quasi-judicial, or, whether
it is a determination of law or fact, the
judgment of the expert body, entrusted with
power, is generally treated as final and the
judicial function is exhausted when it is
found to have “warrant in the record” and a
rational basis in law: See Rochester Tel.
Corp. v. United States [307 US 125 (1939) :
83 L ed 1147] . See also Associated
Provincial Picture Houses
Ltd. v. Wednesbury Corporation.”
Pursuant to the direction passed on 25.04.2025
the Inspector In-Charge, Contai Police Station
Kanthi, Purba Medinipur communicated a reply to
the letter dated 22nd April, 2025 relating to holding
of Maha Sanatani Dharma Sammelan on 30th April,
2025 from 7:00 A.M to 8:00 P.M. which was received
by the petitioners on 26th of April 2025. Petitioners
preferred a supplementary affidavit enclosing the
32
reply/order dated 25.04.2025 passed by the
Inspector In-Charge, Contai Police Station, Kanthi,
Purba Medinipur. Objection was taken by the
Learned Advocate General and it was emphasized
that the scope of writ petition has been changed
pursuant to the reply letter dated 25.04.2025. By
referring to the judgment of S.S. Sharma and
Others -versus- Union of India and Others
reported in (1981) 1 SCC 397, reliance was placed
on the relevant part of paragraph 6 which is as
follows:
“6. …… We have carefully perused the
writ petitions, and it is plain that the entire
scope of the petitions is limited to
challenging the validity and application of
the Central Secretariat Service (Amendment)
Rules, 1979 and the consequent
Regulations for holding a limited
departmental competitive examination. No
relief has been sought for quashing the
office memorandum dated July 20, 1974.
No ground has been taken in the writ
petitions assailing the validity of the office
memorandum on the basis now pressed
before us. We are of opinion that the courts
should ordinarily insist on the parties being
confined to their specific written pleadings
and should not be permitted to deviate from
them by way of modification or
supplementation except through the well
known process of formally applying for
33amendment. We do not mean that justice
should be available to only those who
approach the court confined in a strait-
jacket. But there is a procedure known to
the law, and long established by codified
practice and good reason, for seeking
amendment of the pleadings. If undue laxity
and a too easy informality is permitted to
enter the proceedings of a court it will not be
long before a contemptuous familiarity
assails its institutional dignity and ushers
in chaos and confusion undermining its
effectiveness. Like every public institution,
the courts function in the security of public
confidence, and public confidence resides
most where institutional discipline prevails.
Besides this, oral submissions raising new
points for the first time tend to do grave
injury to a contesting party by depriving it
of the opportunity, to which the principles of
natural justice hold it entitled, of adequately
preparing its response.”
Learned Advocate for the petitioners rebutting
to such contention referred to Mohinder Singh Gill
-versus- Chief Election Commr., reported in (1978)
1 SCC 405 and relied upon paragraph 8 which is as
follows:
“8. The second equally relevant matter
is that when a statutory functionary makes
an order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented by
34fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court
on account of a challenge, get validated by
additional grounds later brought out. We
may here draw attention to the observations
of Bose, J. in Gordhandas Bhanji [Commr.
of Police, Bombay v. Gordhandas Bhanji,
1951 SCC 1088 : AIR 1952 SC 16] :
“Public orders, publicly made, in
exercise of a statutory authority cannot be
construed in the light of explanations
subsequently given by the officer making
the order of what he meant, or of what was
in his mind, or what he intended to do.
Public orders made by public authorities are
meant to have public effect and are
intended to affect the actings and conduct
of those to whom they are addressed and
must be construed objectively with
reference to the language used in the order
itself.
Orders are not like old wine becoming
better as they grow older.”
Having considered that the reply letter/order
dated 25.04.2025 was passed pursuant to the
direction of this Court, I am of the view that no
straight jacket formula is required for ends of
justice. The supplementary affidavit may be taken
on record as the documents which are enclosed
includes the earlier order of this Court along with
35
reply letter/order passed by the Inspector In-Charge,
Contai Police Station, Kanthi, Purba Medinipur
dated 25.04.2025. Otherwise also it was incumbent
upon the state to produce the said order or in the
alternative to inform this Court pursuant to the
direction dated 25.04.2025 that they have not
passed any order or have not replied to the present
petitioner. Several paragraphs have been relied upon
both by the Learned Advocate General and the
petitioners on issues relating to essential religious
rights, to hold the programme on a particular day,
the significance of holding this programme on the
date of Akshaya Tritiya, as also the purpose being
political or apolitical in respect of holding the Maha
Sanatani Dharma Sammelan referred to above.
On the other hand Mr. Kalyan Bandopadhyay
Learned Senior Advocate appearing for the
Respondent No. 3 and 4 submitted that if such
programme is held on different day except 30th April,
2025 State has no objection, but having regard to
the fact that a pre-scheduled programme from the
month of December, 2024 has already been
announced, along with another gathering around
one lakh devotees at Nachinda Sitala Mandir under
Marishda Police Station is to be monitored by
Police. The work load is likely to cause severe
36
pressure upon the Police Authorities which would be
practically impossible to handle, considering the
ground reality of a vast crowd accumulating in the
district of Purba Medinipur.
Learned Senior Advocate filed an affidavit on
behalf of the Respondent No. 4 where he has
challenged regarding the genuinity of the writ
petition and its purpose, to that effect it has been
canvassed that the same is a political programme
which is in tune with the reply made by the
Inspector In-Charge, Contai Police Station Kanthi,
Purba Medinipur.
Learned Senior Counsel in order to fortify his
argument relied upon Christian Medical College
Vellore Assn. v. Union of India, reported in (2020)
8 SCC 705, reference was made to paragraph 24
and it was contended that it is not only Article 25
and 26 of the Constitution which is important but
the said Article do not bestow any unchartered
rights. The right is not absolute and is supposed to
be regulated. Paragraph 24 of the aforesaid
judgment was referred to, which is as follows:
24. The Court held that it is
permissible for the State to prescribe
qualifications for teachers. It observed:
(Ahmedabad St. Xavier’s College Society
case [Ahmedabad St. Xavier’s College
37Society v. State of Gujarat, (1974) 1 SCC
717 : 1 SCEC 125] , SCC pp. 812-13, 819-
20, 830 & 834-35, paras 176, 197, 221 &
232)
“176. Recognition or affiliation is
granted on the basis of the excellence of an
educational institution, namely, that it has
reached the educational standard set up by
the university. Recognition or affiliation is
sought for the purpose of enabling
the students in an educational institution to
sit for an examination to be conducted by
the university and to obtain a degree
conferred by the university. For that
purpose, the students should have to be
coached in such a manner so as to attain
the standard of education prescribed by the
university. Recognition or affiliation creates
an interest in the university to ensure that
the educational institution is maintained for
the purpose intended and any regulation
which will subserve or advance that
purpose will be reasonable and no
educational institution established and
administered by a religious or linguistic
minority can claim recognition or affiliation
without submitting to those regulations.
That is the price of recognition or affiliation:
but this does not mean that it should submit
to a regulation stipulating for surrender of a
right or freedom guaranteed by the
Constitution, which is unrelated to the
purpose of recognition or affiliation. In other
words, recognition or affiliation is a facility
which the university grants to an
38educational institution, for the purpose of
enabling the students there to sit for an
examination to be conducted by the
university in the prescribed subjects and to
obtain the degree conferred by the
university, and therefore, it stands to
reason to hold that no regulation which is
unrelated to the purpose can be imposed. If
besides recognition or affiliation, an
educational institution conducted by a
religious minority is granted aid, further
regulations for ensuring that the aid is
utilised for the purpose for which it is
granted will be permissible. The heart of the
matter is that no educational institution
established by a religious or linguistic
minority can claim total immunity from
regulations by the legislature or the
university if it wants affiliation or
recognition, but the character of the
permissible regulations must depend upon
their purpose. As we said, such regulations
will be permissible if they are relevant to
the purpose of securing or promoting the
object of recognition or affiliation. There will
be borderline cases where it is difficult to
decide whether a regulation really
subserves the purpose of recognition or
affiliation. But that does not affect the
question of principle. In every case, when
the reasonableness of a regulation comes
up for consideration before the Court, the
question to be asked and answered is
whether the regulation is calculated to
subserve or will in effect subserve the
39purpose of recognition or affiliation, namely,
the excellence of the institution as a vehicle
for general secular education to the minority
community and to other persons who resort
to it. The question whether a regulation is in
the general interest of the public has no
relevance if it does not advance the
excellence of the institution as a vehicle for
general secular education as, ex-hypothesi,
the only permissible regulations are those
which secure the effectiveness of the
purpose of the facility, namely, the
excellence of the educational institutions in
respect of their educational standards. This
is the reason why this Court has time and
again said that the question whether a
particular regulation is calculated to
advance the general public interest is of no
consequence if it is not conducive to the
interests of the minority community and
those persons who resort to it.
197. On the second question, I have
nothing significant to add to what has fallen
from My Lord the Chief Justice. I am in
entire agreement with the view that,
although, Articles 29 and 30 may
supplement each other so far as certain
rights of minorities are concerned, yet,
Article 29 of the Constitution does not, in
any way, impose a limit on the kind or
character of education which a minority
may choose to impart through its Institution
to the children of its own members or to
those of others who may choose to send
40their children to its schools. In other words,
it has a right to impart a general secular
education. I would, however, like to point
out that, as rights and duties are
correlative, it follows, from the extent of this
wider right of a minority under Article 30(1)
to impart even general or non-
denominational secular education to those
who may not follow its culture or subscribe
to its beliefs, that, when a minority
institution decides to enter this wider
educational sphere of national education, it,
by reason of this free choice itself, could be
deemed to opt to adhere to the needs of the
general pattern of such education in the
country, at least whenever that choice is
made in accordance with statutory
provisions. Its choice to impart an education
intended to give a secular orientation or
character to its education necessarily
entails its assent to the imperative needs of
the choice made by the State about the kind
of “secular” education which promotes
national integration or the elevating
objectives set out in the Preamble to our
Constitution, and the best way of giving it.
If it is part of a minority’s rights to make
such a choice, it should also be part of its
obligations, which necessarily follow from
the choice to adhere to the general pattern.
The logical basis of such a choice is that the
particular minority institution, which
chooses to impart such general secular
education, prefers that higher range of
freedom where, according to the poet
41
Rabindranath Tagore, “the narrow domestic
walls” which constitute barriers between
various sections of the nation will crumble
and fall. It may refuse to accept the choice
made by the State of the kind of secular
education the State wants or of the way in
which it should be given. But, in that event,
should it not be prepared to forego the
benefits of recognition by the State? The
State is bound to permit and protect the
choice of the minority institution, whatever
that might be. But, can it be compelled to
give it a treatment different from that given
to other Institutions making such a choice?
221. Evidently, what was meant was
that the right to exclusive management of
the institution is separable from the right to
determine the character of education and its
standards. This may explain why
“standards” of education were spoken as
“not part of management” at all. It meant
that the right to manage, having been
conferred in absolute terms, could not be
interfered with at all although the object of
that management could be determined by a
general pattern to be laid down by the
State, which could prescribe the syllabi and
standards of education. Speaking for
myself, I find it very difficult to separate the
objects and standards of teaching from a
right to determine who should teach and
what their qualifications should
be. Moreover, if the “standards of
education” are not part of management, it is
42
difficult to see how they are exceptions to
the principle of freedom of management
from control. Again, if what is aimed at
directly is to be distinguished from an
indirect effect of it, the security of tenure of
teachers and provisions intended to ensure
fair and equitable treatment for them by the
management of an institution would also
not be directly aimed at interference with its
management. They could more properly be
viewed as designed to improve and ensure
the excellence of teachers available at the
institution, and, therefore, to raise the
general standard of education. I think that it
is enough for us to distinguish this case on
the ground that the provisions to be
interpreted by us are different, although,
speaking for myself, I feel bound to say,
with great respect, that I am unable to
accept every proposition found stated there
as correct. In that case, the provisions of the
Kerala University Act 9 of 1969, considered
there were inescapable for the minority
institutions which claimed the right to be
free from their operation. As I have already
observed, in the case before us, Section 38-
B of the Act provides the petitioning College
before us with a practically certain mode of
escape from the compulsiveness of
provisions other than Sections 5, 40, and 41
of the Act if claims made on its behalf are
correct.
232. Even if Article 30(1) of the
Constitution is held to confer absolute and
43
unfettered rights of management upon
minority institutions, subject only to
absolutely minimal and negative controls in
the interests of health and law and order, it
could not be meant to exclude a greater
degree of regulation and control when a
minority institution enters the wider sphere
of general secular and non-denominational
education, largely employs teachers who
are not members of the particular minority
concerned, and when it derives large parts
of its income from the fees paid by those
who are not members of the particular
minority in question. Such greater degree of
control could be justified by the need to
secure the interests of those who are
affected by the management of the minority
institution and the education it imparts but
who are not members of the minority in
management. In other words, the degree of
reasonably permissible control must vary
from situation to situation. For the reasons
already given above, I think that, apart from
Sections 5, 40 and 41 of the Act, which
directly and unreasonably impinge upon the
rights of the petitioning minority managed
college, protected by Article 30(1) of the
Constitution, I do not think that the other
provisions have that effect. On the situation
under consideration before us, the minority
institution affected by the enactment has,
upon the claims put forward on its behalf, a
means of escape from the impugned
provisions other than Sections 5, 40 and 41
44
of the Act by resorting to Section 38-B of the
Act.”
Reiterating on the issue of absolute
unchartered rights, Learned Senior Advocate also
relied upon Dharam Chand v. NDMC, reported in
(2015) 10 SCC 612.
It was contended that the petitioners did not
plead in the writ petition regarding their past
experience of conducting such programme and
neither they have by way of any documents
substantiated their claim of past experience, as
such, only relying upon the averments in the writ
petition particularly majority of which are in the
form of submission it would be dangerous to leave a
huge gathering at the mercy of the present
petitioners. Reference was made to Bharat Singh –
versus- State of Haryana, reported in (1988) 4
SCC 534 and reliance was placed upon paragraph
13 which reads as follows:
“13. As has been already noticed,
although the point as to profiteering by the
State was pleaded in the writ petitions
before the High Court as an abstract point
of law, there was no reference to any
material in support thereof nor was the
point argued at the hearing of the writ
petitions. Before us also, no particulars and
no facts have been given in the special
45leave petitions or in the writ petitions or in
any affidavit, but the point has been sought
to be substantiated at the time of hearing
by referring to certain facts stated in the
said application by HSIDC. In our opinion,
when a point which is ostensibly a point of
law is required to be substantiated by facts,
the party raising the point, if he is the writ
petitioner, must plead and prove such facts
by evidence which must appear from the
writ petition and if he is the respondent,
from the counter-affidavit. If the facts are
not pleaded or the evidence in support of
such facts is not annexed to the writ petition
or to the counter-affidavit, as the case may
be, the court will not entertain the point. In
this context, it will not be out of place to
point out that in this regard there is a
distinction between a pleading under the
Code of Civil Procedure and a writ petition
or a counter-affidavit. While in a pleading,
that is, a plaint or a written statement, the
facts and not evidence are required to be
pleaded, in a writ petition or in the counter-
affidavit not only the facts but also the
evidence in proof of such facts have to be
pleaded and annexed to it. So, the point
that has been raised before us by the
appellants is not entertainable. But, in spite
of that, we have entertained it to show that
it is devoid of any merit.”
Learned Senior Advocate also relied upon the
judgment of State of Karnataka and Another –
versus- Dr. Praveen Bhai Thogadia reported in
46
(2004) 4 SCC 684 and referred to paragraphs 6 and
7 of the judgment to emphasise that ordinarily in
respect of administrative orders, the Court should
not interfere, as it is the administration which
handles the ground reality. Paragraphs 6 and 7 of
the said judgment has been relied upon which reads
as follows:
“6. Courts should not normally
interfere with matters relating to law and
order which is primarily the domain of the
administrative authorities concerned. They
are by and large the best to assess and to
handle the situation depending upon the
peculiar needs and necessities within their
special knowledge. Their decision may
involve to some extent an element of
subjectivity on the basis of materials before
them. Past conduct and antecedents of a
person or group or an organisation may
certainly provide sufficient material or basis
for the action contemplated on a reasonable
expectation of possible turn of events, which
may need to be avoided in public interest
and maintenance of law and order. No
person, however big he may assume or
claim to be, should be allowed, irrespective
of the position he may assume or claim to
hold in public life, to either act in a manner
or make speeches which would destroy
secularism recognised by the Constitution of
India. Secularism is not to be confused with
communal or religious concepts of an
47individual or a group of persons. It means
that the State should have no religion of its
own and no one could proclaim to make the
State have one such or endeavour to create
a theocratic State. Persons belonging to
different religions live throughout the length
and breadth of the country. Each person,
whatever be his religion, must get an
assurance from the State that he has the
protection of law freely to profess, practise
and propagate his religion and freedom of
conscience. Otherwise, the rule of law will
become replaced by individual perceptions
of one’s own presumptions of good social
order. Therefore, whenever the authorities
concerned in charge of law and order find
that a person’s speeches or actions are
likely to trigger communal antagonism and
hatred resulting in fissiparous tendencies
gaining foothold, undermining and affecting
communal harmony, prohibitory orders
need necessarily to be passed, to effectively
avert such untoward happenings.
7. Communal harmony should not be
made to suffer and be made dependent
upon the will of an individual or a group of
individuals, whatever be their religion, be it
of a minority or that of the majority. Persons
belonging to different religions must feel
assured that they can live in peace with
persons belonging to other religions. While
permitting holding of a meeting organised
by groups or an individual, which is likely
to disturb public peace, tranquillity and
orderliness, irrespective of the name, cover
48and methodology it may assume and adopt,
the administration has a duty to find out
who the speakers and participants are and
also to take into account previous instances
and the antecedents involving or concerning
those persons. If they feel that the presence
or participation of any person in the meeting
or congregation would be objectionable, for
some patent or latent reasons as well as the
past track record of such happenings in
other places involving such participants,
necessary prohibitory orders can be
passed. Quick decisions and swift as well
as effective action necessitated in such
cases may not justify or permit the
authorities to give prior opportunity or
consideration at length of the pros and
cons. The imminent need to intervene
instantly, having regard to the sensitivity
and perniciously perilous consequences it
may result in if not prevented forthwith,
cannot be lost sight of. The valuable and
cherished right of freedom of expression
and speech may at times have to be
subjected to reasonable subordination to
social interests, needs and necessities to
preserve the very core of democratic life —
preservation of public order and rule of law.
At some such grave situation at least the
decision as to the need and necessity to
take prohibitory actions must be left to the
discretion of those entrusted with the duty
of maintaining law and order, and
interposition of courts — unless a concrete
case of abuse or exercise of such sweeping
49powers for extraneous considerations by the
authority concerned or that such authority
was shown to act at the behest of those in
power, and interference as a matter of
course and as though adjudicating an
appeal, will defeat the very purpose of
legislation and legislative intent. It is useful
to notice at this stage the following
observations of this Court in the decision
reported in Madhu Limaye v. Sub-Divisional
Magistrate, Monghyr [(1970) 3 SCC 746] :
(SCC p. 757, para 24)
“24. The gist of action under
Section 144 is the urgency of the situation,
its efficacy in the likelihood of being able to
prevent some harmful occurrences. As it is
possible to act absolutely and even ex parte
it is obvious that the emergency must be
sudden and the consequences sufficiently
grave. Without it the exercise of power
would have no justification. It is not an
ordinary power flowing from administration
but a power used in a judicial manner and
which can stand further judicial scrutiny in
the need for the exercise of the power, in its
efficacy and in the extent of its application.
There is no general proposition that an
order under Section 144, Criminal
Procedure Code cannot be passed without
taking evidence : see Jagrupa
Kumari v. Chotey Narain Singh [(1936) 37
Cri LJ 95 (Pat)] which in our opinion is
correct in laying down this proposition.
These fundamental facts emerge from the
way the occasions for the exercise of the
50
power are mentioned. Disturbances of
public tranquillity, riots and affray lead to
subversion of public order unless they are
prevented in time. Nuisances dangerous to
human life, health or safety have no doubt
to be abated and prevented. We are,
however, not concerned with this part of the
section and the validity of this part need not
be decided here. Insofar as the other parts
of the section are concerned the keynote of
the power is to free society from menace of
serious disturbances of a grave character.
The section is directed against those who
attempt to prevent the exercise of legal
rights by others or imperil the public safety
and health. If that be so the matter must fall
within the restrictions which the
Constitution itself visualizes as permissible
in the interest of public order, or in the
interest of the general public. We may say,
however, that annoyance must assume
sufficiently grave proportions to bring the
matter within interests of public order.”
Elaborating on the aforesaid issue Learned
Senior Counsel also referred to the judgment of the
Hon’ble Madras High Court Rama.
Muthuramalingam, State Propaganda
Committee Member, Thanthai Periyar Dravidar
Kazhagam, No. 31, Nagaraja Iyer Colony, South
Fourth Street, Mannargudi, Tiruvarur District –
versus-The Deputy Superintendent of Police,
51
Mannargudi, Tiruvarur District and others
reported in 2004 (5) CTC 554 and it was
emphasised that the legislature the executive and
the judiciary are three separate organs and it would
not be proper for one of them to encroach upon the
domain of another.
I have considered the submissions of the
respective parties and also taken into account the
reason which have been assigned in the reply dated
25.04.2025 by the Inspector In-Charge, Contai
Police Station Kanthi, Purba Medinipur which has
the over tones of political biasness rather than
incapacity of the Police Authorities to handle the
crowd. While a part of the communication was
restricted to the Inauguration Ceremony of Shree
Jaganath Temple at Digha, Purba Medinipur which
is far away from the venue proposed by the
petitioners but emphasis has been made on public
speeches of the Leader of the Opposition and the
event being a smoke-screen to congregate a political
crowd under the garb of a religious programme for
precipitating the situation and causing traffic as well
as law and order problems. As was referred to in
Acharya Jagadishwarananda Avadhuta and
another (supra), it is very disturbing to see the
approach of the Inspector In-Charge, Contai Police
52
Station who must know that political minorities are
also citizens of India who are to be treated equally.
Highlighting the political affiliation of a person do
not take away his right to celebrate on a date when
the whole district is in a festive mood. Whether the
Dharma Sammelan would be a religious
congregation or under a political garb a religious
programme, is not the look out of the Inspector In-
Charge, Contai Police Station Kanthi, Purba
Medinipur.
However having regard to the fact that there
will be an accumulation of huge number of persons
in the district, as is represented in a part of the
reply, I am of the view that the petitioners be allowed
to organise the programme with a crowd of 3000
(three thousand) people in a rotational manner i.e. at
a fixed point of time more than 3000 persons will not
accumulate or gather together at the venue. As
undertaken by the petitioners all arrangements
relating to water, bio-toilets, safety, security
maintenance of the decibel limit be maintained in
and around the venue, a list of volunteers on behalf
of the organizers be handed over to the Contai Police
Station along with mobile numbers of at least 20
persons who would be made available for
communication in case of any crisis.
53
With the aforesaid observations WPA 9157 of
2025 is disposed of.
All parties shall act on the server copy of this
judgment duly downloaded from the official website
of this Court.
Urgent photostat certified copy of this
judgment, if applied for, be supplied to the parties
upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)
[ad_1]
Source link