BALDEV BAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE petitions are filed by the proprietors of bands who use trolleys fitted with loudspeakers for use in marriage processions and similar processions. The other petitioners are allegedly working on the said trolleys and they earn their livelihood on the same. The petition was filed on the basis of a news item published on 13 -5 -1982 and an announcement in T. V. and radio that the Police Commissioner has banned the movement of trolleys fitted with loudspeakers forming part of marriage processions with crooners singing film songs. It is claimed in the writ petition that after the said announcement on 16 -5 -1982 such a trolley fitted with loudspeaker belonging to 'Master Band' was seized by the Police. It is the contention of the petitioners that playing of music on the loudspeakers fitted on trolleys is done with the intention of 'relaxation and glamour' and has become a social and customary practice for marriage celebrations. It is then claimed that the trolleys are too small to cause any obstruction, inconvenience or nuisance to traffic on the roads. As far the legal submissions, it is contended that Section 28 (1) (b) of the Delhi Police Act, 1978, is ultra vires as it gives unguided arbitrary powers to Police authorities to prevent the use of loudspeakers. It is also urged that the said section unreasonably restricts the right to carry on the trade/profession of bands (wherein trolleys fitted with loudspeakers are used), and thereby violates Art.19 (1) (g) of the Constitution. It is also contended that the order in question has not been published in the official gazette, as required by the Act and, therefore, the order is bad in law. The order, according to the petitioners is not legal also, for another reason, namely, that it was not published in the concerned localities as required by the Act.

(2.) THE respondents on the other hand submit that the powers under Section 28 are necessary in public interest and were not arbitrary. The impugned order, it is contended, was the result of (public complaints and) the experience of the Police in regard to use of loudspeakers. It is also contended that on 12 -5 -1982 the Commissioner of Police issued instructions to all the District Commissioners of Police directing them that no permission for use of loudspeakers on trolleys/moving vehicles should be granted in future. These instructions were not addressed to the public but were only the departmental instructions. It is claimed in the counter -affidavit that the directions were issued in exercise of the powers conferred by the Delhi Police Act and Regulations in that regard. These Regulations are called Union Territory of Delhi Loudspeakers (Licensing and Controlling) Regulations, 1980. The respondents further submit that there is no prohibition on the band being played on the public streets. There is no fundamental right in the petitioners to use trolleys fitted with loudspeakers in the band. It is then pointed out by the respondents that pursuant to the said Regulations the petitioners ought to have obtained the prior permission to use the trolleys with loudspeakers but none of them had obtained the permission and are carrying on their business illegally. It is then stated that the assertion that thousands of persons are losing their livelihood made in the petition is unfounded as the business of running a band is not prohibited by the impugned order. It is then claimed that a restriction on few people so as to achieve the general public interest would be a reasonable restriction.

(3.) I do not think that any fundamental right of the petitioners is violated. There is a right to carry on the business or trade of a band. Even this right can be curtailed or regulated for an appropriate time or an appropriate place or generally. Some trades/business have a potentiality of being abused easily when they become danger to public peace, tranquillity and order and create public nuisance, inconvenience and hazard to normal social life. Right to carry on trade in liquor can be said to be one belonging to this category. If there is a restriction that there cannot be a country liquor shop in the residential areas or near a school or in the public place of entertainment the restrictions/ preventions are really in public interest. Right to carry on trade, which can be called a fundamental right is not here directly threatened in this case. Even assuming that running of a band is a fundamental right to carrying on trade and business, it cannot be said that there is a fundamental right in the use of every instrument in the band or the vehicles used or the number of loudspeakers used to make the band more loud than it normally is. Every trade/profession gives livelihood to some people. Even smuggling and dealing in narcotics provide livelihood to some people. It is therefore, no argument in law that some people who are allegedly used for pushing the trolleys will suffer because to use the trolleys in a band is itself not a fundamental right. I do not think that Section 28 (1) (b) can be faulted on the ground that it violates Art.19 (1) (g) of the Constitution.