P.A. Jacob vs. Superintendent of Police

P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 Kerala High Court P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 Equivalent citations: AIR 1993 Ker 1 Author: C S Nair Bench: C S Nair ORDER Chettur Sankaran Nair J 1. Claiming a fundamental right to use a loud speaker at public meetings to voice his views petitioner seeks to restrain respondents from interfering with the use of a loud speaker by him 2. Petitioner belongs to a denomination of Christianity known as Knanaya Christians. Thomas of Cana came to India from Mesopottomia in 344 A.D. and organised the south eastern church of Syrian Christians as St. Thomas organised the north eastern church in A.D. 52. The followers of Thomas of Cana came to be known as Knanaya Christians. Some of the Knanaya Christians follow the rites of the Catholic Church while others follow the Marthomite rites. Members of Knanaya denomination do not marry outside that denomination it is said with a view to preserve the purity of stock. This practice is denounced by petitioner. In his view a Knanaya Christian should be free to marry anyone professing the faith of Christianity. To propagate his views in this regard petitioner sought permission to hold meetings using sound amplifiers. Second respondent Sub Inspector of Police granted permissionbut withdrew the permission later apprehending that views of petitioner may incite to violence the conservatives in the Church. Incidentally this apprehension or misapprehension has been proved wrong as a meeting could be held pursuant to interim orders of this Court admittedly without any disturbance 3. Petitioner submits that freedom of speech and expression imply freedom to use amplifying devices and cited the decision of the Gujarat High Court in Indulal v. State AIR 1963 Guj 259 1963Cri LJ 502) in support of his contention. The Gujarat High Court relied on the opinion of the Judicial Committee in Francis v. Chief of Police 2 AER 251 to hold that freedom of speech included freedom to circulate one s views in any manner. The Allahabad High Court however took a contrary view in Rajnikant v. State AIR 1958 All 360 :3rd Edn. page 504) prefers the view of the Gujarat High Court. There is also a decision of this Court in D. Ananda Prabhu v. District Collector 1974 KLT 291 :following the view of the Gujarat High Court. But this Court did riot consider the question whether a fundamental right was involved in the matter of using a loud speaker. The learned Judge assumed that there was a fundamental right and proceeded to consider the reasonableness of a restriction imposed. After referring to the decision of the Gujarat High Court the learned Judge It appears to me that the right conferred by Article 19(1)(a).......have to be understood in the same wayThis was reiterated in U.S. v. Schiwmmer51 Cri LJ 1514) Indian Express NewspapersPvt. Ltd v. Union of India AIR 1986 SC 515 :Hamdard Dawakhana v. The Union of India AIR 1960 SC 554:Reliance Petrochemicals Ltd. v. Proprietors Indian Expresss BombayLtd. AIR 1989 SC 190 :and other cases Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 8. Likewise the right to free speech embodied in the First Amendment in the American Constitution has come for consideration of the United States Supreme Court time and time again Schenck v. United States 249 US 47 Abrams v. U.S. 250 US 616 Gitlow v. New York 268 US 652 Whitney v. California 274 US 357 De Jonge v. State of Oregon 299 US 353 West Virginia State Board v. Barnette 319 US 624 Brandenburg v. State of Ohio 395 US 444 Hess v. Indiana 414 US 105 Lehman v. City of Shaker Heights 418 US 298 Breard v. City of Alexandria 341 US 622 9. In Indian Express NewspapersPvt. Ltd. v. Union of India AIR 1986 SC 515 the Supreme Court of India highlighted the free speech content of Article 19 and its parameters. The right is not absolute. For that matter under the First Amendment restrictions are not alien to the constitutional . scheme. In Roth v. U.S.the Supreme Court held that obscenity is not a protected right. In Mear v. Minnesotaand Times Film Corporation v. Chicagothe United States Supreme Court held that restraints on free speech were constitutionally permissible. Chaplinsky v. New HampshireFeiner v. New YorkDennis v. U.S.Niemotko v. MarylandPoulos v. New HampshireCox v. LouisianaPublic Utilities Commission v. PollakAdderley v Floridaand Grayned v. City of Rockfordare also authorities for the same 10. However wide a right is it cannot be as wide as to destroy similar or other rights in others Jefferson said J.S. Mill said No one has a natural right to commit aggression on the equal rights of another If all mankind minus one were of one opinion and if only one person was of contrary opinion mankind would be no more justified in silencing that one person than he if he had the power would be justified in silencing mankind Freedom or right is not an exclusive matter between the State and a citizen. One man s freedom may destroy another man s freedom. A community of rights not always synchronizing with each other have to be harmonised if any freedom is to be real. In Abrams v. U.S.the United States Supreme Court said Nobody can be compelled to accept any idea... not even of national unity Again in Breard v. City of Alexandriathe Court highlighted the rights of the recipient or captive audience Freedom of speech or press does not mean that one can talk or distribute where when and how one chooses. Rights of those other than the advocates are involved. By adjustment of rights we can have both liberty of expression and an orderly life Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 In this area there are no prophets who can commend attention and for that matter not all propagandists and pamphleteers are prophets 11. The right to speech implies the right to silence. It implies freedom not to listen and not to be forced to listen. The right comprehends freedom to be free from what one desires to be free from What could be more basic to the concept of freedom than this Justice Douglas articulated this right to be let alone is the beginning of all freedoms.. .. When we force people to listen to another s ideas we give the propagandist a powerful weapon. One man s lyric may be another s 12. Free speech is not to be treated is a. promise to everyone with opinions and beliefs to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. Referring to the natural limits of liberty J.S. Mill said Liberty of an individual must be thus far limited he must not make himself a nuisance to other 13. In this background the question whether use of a loud speaker is a fundamental right or part of the complements of a fundamental right has to be viewed 14. With great respect I find it difficult to agree with thp view of the Gujarat High Court in Indulal v Statethat freedom of Speech includes freedom to use sound amplifiers. In Francis v. Chief of PoliceAll England Reports 251) relied pn by the Gujarat High Court to find an absolute freedom Pearson L.J. pointed out that Some regulation of the use of loud speaker is required in order that citizens who do not wish to hear what is being said may be protected This limitation was noticed by A.L. Goodhartthe majority of seven Judges held that sound amplification in public places is not part of the right of free speech. Novacks was convicted under an Ordinance prohibiting use of sound amplifiers in a public street. He challenged the conviction as violative of First Amendment protection. The Court held that restrictions on free speech imposed by the Ordinance were constitutionally permissible. Frankfurter and Jacksonheld that sound trucks in streets can be absolutely prohibited without violating the constitutional right of free speech. Police power of State extends beyond health and morals and comprehends the duty to protect the well being and tranquillity of a community. The Court observed Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 Such distractions would be dangerous to traffic at all hours....the quiet and tranquillity so desirable for city dwellers would be at the mercy of advocates of particular religious social or political persuasions we cannot believe that the right of free speech compel a Municipality to allow such mechanical voice amplification on any of its streets. The right of free speech is guaranteed to every citizen so that he may reach the minds of willing listeners and to do so there must be opportunity to win the attention.......Opportu nity to gain the public ear is not by objec tionably amplified sound on the streets. The preferred position of freedom of speech in a society that cherishes liberty for all docs noi require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in Justice Jackson concurring with Frankfurter J. said I believe that operation of mechanical sound amplifying devices conflicts with quiet enjoyment of home and park and with safe and legitimate use of streets and market places.... Freedom of speech does not in my view include freedom to use sound amplifiers to drown out natural speech of 16. Kovacks v. Coopermarked a sharp dissent from the view then prevailing. The Court overturned the law in Saia v. New Yorkand held that the right to be heard is no more important than the right to be let alone. In Public Utilities Commission v. Pollakthe Court ruled that use of a radio to beam commercial broadcasts in a street car was not protected by the First Amendment. The Court observed the right to be let alone is the beginning of all freedoms. The present case involves a coercion to make people listen The same view was reiterated in Lehman v. City of Shaker Heightsthe Court should lake a commonsense view and be actuated by considerations of practical necessity. A similar view finds expression in Shamsher Singh v. State of Punjab AIR 1974 SC 2192 :in All India Bank Employees case AIR 1962 SC 171 recognition of a series of ever expanding concentric circles in the shape of rights concomitant to concomitant rights and so on will lead to a 22. A loud speaker is a mechanical device and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality and not to a mechanical device. One may put his faculties to reasonable uses But he cannot put his machines to any use he likes. He cannot use his machines to injure others Intervention with a machine is not intervention with or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the rights under Article 19responses and changes in neurovegetative reactions during sleep show that disturbance of sleep becomes Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 increasingly apparent as ambient noise levels exceed about 35 dbLeq. Noise produces different reactions along the hypothalamohypophyseal adrenal axis including an increase in adenocorti cotropic hormoneaffecting sympathetic division of the autonomic nervous system. Eye dilation bradycardia and increased skin conductance are proportional to the intensity of noise above 70 dB. SPL. Incidence of peptic ulcer is high among noise exposed groups. Noise causes contraction of the flexor muscles of the limbs and the spine and is reckoned as an environmental stress that could lead to non specific health disorders. Exposure to high noise in every day life may contribute to eventual loss of hearingand this in turn can affect speech communication. Vasoconstriction or vasodilation of blood vessels also is induced by high levels of noise during acute exposuresVertigoand balance problems have also been reported due to noise exposure. WHO criteria 12 and Indian Standards 1 S 4954 indicate tolerance levels. J.E. Park and K. Park Text Book of Preventive and Social Medicine 7th Edn page201 also specifies tolerance limits of noise 24. Sound levels generally caused by loud speakers transgress safe limits by a wide margin. Loud speakers have become part of political social religious and cultural life of this country. To allow advocates of various persuasions to commit unlimited aural aggression on unwilling listeners would be to allow them to subjugate the right of life of unwilling listeners to their aggressions. Protests made by sufferers like the student community or sick generally fall on heedless ears. Very recently the Malayala Manorama came out with an editorial against noise pollution. The Indian Medical Association is reported to have protested against high noise output through loud speakers pointing out the risks...............to the extent of reaching a willing audience. One may exercise that amenity in a hall or area reasonably required to accommodate a willing audience There is no right to any amenity beyond this 26. Besides use of a loud speaker cannot be arbitrarily denied only because a fundametal right is not involved. By reason of Article 14 the State and its agencies cannot act arbitrarily. They must adhere to fair play in action. For instance even when a person may not have a fundamental right to enter into a contract with the State the State cannot act arbitrarily in the matter of awarding a contract. Likewise in the matter of denying the use of a loud speaker Police cannot act arbitrarily All State action is amenable to Article 14. To quote Jackson J. in West Virginia State Board v Barnetteagain There are village Hampdens and village tyrants but none who acts under colour of law is beyond the reach of the Constitution Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 If the authority charged with the power to regulate use of loud speakers under the Kerala Police Act acts beyond the authority law confers upon him his action is liable to be interdicted 27. Back to the facts. Permission was denied to petitioner to use a loud speaker on the ground that holding of meetings with loud speakers would lead to a law and order situation on account of the displeasure that it may cause to another group. This reason appears to be an after thought. At the time of granting permission initially no such hazard was envisioned. Nothing suggests that there had been a change of circumstances between the time permission was granted and the time it was cancelled. Quite apart from that an apprehension that one may interfere with a lawful act done by another will be no reason to deny the exercise of that lawful right. If obstruction is offered unlawfully or unreasonably the responsibility of Police is to remove it instead of stopping someone from doing what he may legitimately do. For a fact the hazards imagined by the Sub Inspector of Policeare unreal. By reason of interim orders made by this Court petitioner held meetings using loud speakers and admittedly no law and order problem arose. In the absence of any valid ground cancellation of the permission granted under Ext. F1 is arbitrary. While petitioner has no fundamental right to use a loud speaker he will be free to avail of the amenity of using a loud speaker in a reasonable manner. Second respondent Sub Inspector of Police will permit petitioner to hold meetings with the use of loud speakers of a box type for purposes of holding meetings as indicated in the writ petition. But the output from the loud speaker shall not exceed the range necessary to reach a willing audience confined in a reasonable area. If it exceeds such limits Police will be free to stop the use of loud speakers The writ petition is disposed of as above. No costs I express appreciation of the help rendered by Shri S.V. Balakrishna Iyer as Amicus Curiae Indian Kanoon 

Summary:  Introduction: This 1992 case dealt with fundamental rights of speech and expression intricately and at length. The petitioner was stopped from using a loudspeaker at a religious congregation by the withdrawal of approval by the Sub-inspector of Police, and the petitioner alleged violation of his freedom of speech and expression. The Court had to deal with the chapter on fundamental rights intricately and point out the reasonable restrictions any right is subjected to. Facts of the case: Case presented by the Petitioners: Case presented by the Respondents: Judgement: The revered Justice C.S. Nair said that “With great respect, I find it difficult to agree with the view of the Gujarat High Court in Indulal v. State, that freedom of speech includes freedom to use sound amplifiers. In Francis v. Chief of Police, relied on by the Gujarat High Court to deliver the verdict, Pearson L.J. had pointed out that: “Some regulation of the use of loudspeaker is required in order that citizens who do not wish to hear what is being said may be protected.” Therefore there were grounds to not rely blindly on the verdict of the case of Francis v. Chief of Police as jurists had had reservations about that verdict too. Justice Nair referred to US cases too. The use of loudspeakers was not considered in the purview of free speech and expression by the First Amendment of the US Constitution. The same view was reiterated in Lehman v. City of Shaker Heights, a US case, where it was opined that though the petitioner had a right to express his views to those who wish to listen, he had no right to force his message upon an audience incapable of declining to receive it. That apart, the freedom guaranteed is freedom of expression of ideas, not freedom of modes of expression. A loudspeaker is a mechanical device, and it has no mind or thought process in it and therefore is not human. The right of speech or expression is a right accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. Further, it was stated that Article 21 guarantees freedom from tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from noise. Therefore the petitioner was prevented from using loudspeakers. But the Court did not condone the wrongful act of the Superintendent of Police. It was stated that if the Police, charged with the power to regulate the use of loudspeakers under the Kerala Police Act, acts beyond the authority law confers upon him, it would be liable to be interdicted. The permission was denied to the petitioner to use a loudspeaker on the ground that holding meetings with loudspeakers would lead to a law and order situation. This reason appeared to be an after-thought, and for a fact, the hazards imagined by the Sub-Inspector of Police were indeed unreal.  The final verdict was passed stating that in the absence of any valid ground, cancellation of the permission granted to the petitioner was arbitrary. While the petitioner had no fundamental right to use a loudspeaker, he was indeed free to avail amenity of using a loudspeaker in a reasonable manner. The Sub-Inspector of Police had to permit the petitioner to hold meetings with the use of loudspeakers of a box type, for purposes of holding meetings as in which the output from the loudspeaker did not exceed the range necessary to reach a willing audience, confined in a reasonable area.  Conclusion It can be concluded, therefore, that no fundamental right is absolute, and the exercise of one’s rights cannot infringe upon the rights of another. The Court in this case checked the misuse of power at the hands of the Police, as well as reiterated the validity and restrictions on the Fundamental Rights. References