One Year Of CAA : Supreme Court Passive, High Courts Pro-Active In Upholding Right To Protest
Akshita Saxena
11 Dec 2020 4:52 AM GMT
Exactly a year ago, on December 11, 2019, the Parliament passed the controversial Citizenship Amendment Act 2019(CAA). The constitutionality of the Act - passed with the ostensible object of granting protection to refugees fleeing religious persecution from neighboring nations - was seriously debated on account of its exclusion of Muslim migrants and non-Muslim majority neighboring...
Exactly a year ago, on December 11, 2019, the Parliament passed the controversial Citizenship Amendment Act 2019(CAA).
The constitutionality of the Act - passed with the ostensible object of granting protection to refugees fleeing religious persecution from neighboring nations - was seriously debated on account of its exclusion of Muslim migrants and non-Muslim majority neighboring countries from its ambit.
Why was the Act not received well?
The changes brought to the core concepts of Indian citizenship by bringing a religious angle to it, the uncertainties about the National Register of Citizens and the anxieties about its apparent precursor the National Population Register sent the country into a state of turmoil.
Over 140 writ petitions were filed in the Supreme Court by different parties across the nation challenging the CAA-NPR-NRC. Many State Governments resolved to not implement its provisions and international organizations like the United Nations Human Rights Body were constrained to comment on the "fundamentally discriminatory nature" of the Act. The United Nations Commissioner of Human Rights also intervened in the Supreme Court raising questions at the CAA.
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The legislation triggered off mass civilian protest movements across the country, which were sought to be brutally suppressed by the State through the invocation of Section 144 orders, police crackdowns, internet shutdowns etc.
How did the Courts respond?
While many were looking up to the Supreme Court for an expeditious and authoritative pronouncement on the issues relating to citizenship, the institution led by CJI Bobde chose to give priority to the questions of essential religious practices raised in the Sabarimala review.
CAA Petitions To Be Heard After Sabarimala Reference; CJI Asks Sibal To Mention After Holi Break
Nevertheless, an overview of the orders passed by the High Courts over a span of one year reflect the proactive approach adopted by them in defending the basic human and fundamental rights of the protestors; motivated to safeguard the right to free speech, right to life and personal liberty and the oft battered right to dissent.
Allahabad High Court
Police violence at Aligarh Muslim University
As per reports, at least 23 people were killed across Uttar Pradesh during the violent anti-CAA protests, thousands were arrested and hundreds of FIRs were lodged. This includes the violent breakout in the campus of Aligarh Muslim University, on December 15, 2020.
It was stated that that the students were protesting peacefully against the Citizenship Amendment Act since December 13, 2019. However, on December 15, 2019, the Para Military Force and the State Police, for no just and valid reasons, charged Lathi with massive amount of firing of Tear Gas, Rubber Bullets and Pellets on the students of AMU.
On a plea seeking court-monitored probe into the incident, the Allahabad High Court on December 19, sought responses from the Uttar Pradesh government and the AMU administration. Moreover, recognizing the urgency of the matter, a Chief Justice led Division Bench directed the District Magistrate, Aligarh to ensure that all necessary medical assistance is provided to the students and persons said to be injured in the alleged incident.
The order came days after the Chief Justice of India refused to take cognizance of reports of police violence at Jamia Milia Islamia and AMU and remarked that the Court cannot be "bullied". He told Senior Advocate Indira Jaising that the Supreme Court will hear the matter the next day, "if the violence is stopped".
Ironically, on the next day, i.e. December 17, 2019, the Top Court asked the parties to approach the High Court, as it was "not feasible" for the Supreme Court to monitor the probe, as the incidents happened across the nation.
To much relief of the Petitioners, the Allahabad High Court took cognizance of the alleged Police excesses and directed the National Human Rights Commission to investigate the matter within 5 weeks.
Finally, on February 24, the Allahabad High Court found the Policemen guilty of "damaging motorcycles and unnecessarily caning the apprehended students" of AMU and it directed the Director General of Police of the UP Government to identify and take action against the errant officers.
Detention of Dr. Kafeel Khan
A Gorakhpur-based lecturer, Dr. Kafeel Khan was arrested from Mumbai in January 2020, for allegedly giving a provocative speech at the Aligarh Muslim University on December 13, 2019, amidst the anti-CAA protests. The Pediatrics professor was slapped with charge under stringent National Security Act, 1980 for "disturbing public order in the city and creating an atmosphere of fear and insecurity within the citizens of Aligarh".
A habeas corpus petition moved by Khan's mother, Nuzhat Perween was first listed before the Allahabad High Court on June 1, 2020 after the Supreme Court refused to intervene in the matter, stating that High Court is a more "appropriate forum".
Whereas the petition came to be disposed of by the High Court on September 1, 2020 with directions to effect immediate release, much harm was done as a man who gave a "call for national integrity and unity among the citizens," was kept under detention for approximately seven months.
On a perusal of the record maintained under NSA, the Allahabad High Court concluded that there were no grounds to either detain Khan, let alone to extend such detention twice, as a complete reading of his speech indicated that he 'deprecated any kind of violence'.
"The speaker was certainly opposing the policies of the government and while doing so certain illustration are given by him, but that no where reflects the eventualities demanding detention. A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent," the Bench said in its strongly worded Judgment.
Name & Shame Banners
The violent incidents were followed by the Yogi Adityanath led Government in the State erecting 'name and shame' banners in the capital city, displaying the names, photographs and addresses of persons accused of committing violence and damaging public and private properties during protests against CAA.
A Chief Justice led Division Bench of the Allahabad High Court was however prompt in taking suo-moto cognizance of the matter noting the threat caused to the Fundamental Rights of the said individuals, and within 3 days, it issued directions for immediate removal.
After a special sitting held on March 8, Sunday, the High Court observed that the Government action had an "injurious effect" on the precious rights enshrined under the Constitution and that the Courts cannot "shut its eyes" if a public unjust is happening just before it.
The Court concluded that the UP Govt had failed to show why the personal data of few persons had been placed on banners and it thus amounted to an "unwanted interference" with the citizens' right to privacy.
Undoubtedly, the Name & Shame banners had the effect of fixing liability on individuals without a trial and the High Court made extensive observations against such "colorable exercise of powers" by the Executive.
"We do not find any necessity for a democratic society for a legitimate aim to have publication of personal data and identity. The accused persons are the accused from whom some compensation is to be recovered and in no manner they are fugitive. Learned Advocate General also failed to satisfy us as to why placement of the banners is necessary for a democratic society for a legitimate aim," the order read.
When the State of Uttar Pradesh approached the Supreme Court against the High Court verdict, it asked the State Government about the law which supported the action of putting up hoardings containing the name of alleged rioters. However, it did not dismiss the petition or uphold the High Court's order but rather referred the petition to a larger bench.
A bench comprising Justices U U Lalit and Aniruddha Bose said that the matter involves "issues which need further consideration by a bench of sufficient strength". Notably, the bench did not pass any order staying the operation of the impugned direction.
In the meantime, the UP Cabinet cleared the Uttar Pradesh Public and Private Property Damages Recovery Ordinance, to recover damages from any person/ miscreant causing damage to any private/ public property during protests/ demonstrations/ hartal/ bundh/ riots/ public commotion, certainly with an objective to subvert the High Court order.
Bombay High Court
Imposition of S. 144 in districts of Maharashtra
Upholding the citizens' right to express dissent, a Division Bench of the Bombay High Court quashed an order passed under Section 144 CrPC to prohibit anti-CAA protests and demonstrations.
The court noted that even though the impugned Section 144 order, on the face of it, was passed to curb multiple agitations, the real purpose behind it was to silence the anti-CAA protesters. The order had even prevented sloganeering, singing, beating drums also.
The judges recalled that Indian Independence was won by protests against the British rule. In this connection, the Court said "It can be said that it is unfortunate but the people are required to agitate against their own Government now but only on that ground the agitation cannot be suppressed".
The Court also observed that persons who oppose the CAA cannot be termed as traitors or anti-nationals, and that their right for peaceful protests must be considered. It said,
"The bureaucracy needs to keep in mind that when the citizens who believe that particular act is an attack on their rights which were achieved by freedom struggle and when it is against the provisions of constitution which people have given to themselves, they are bound to defend that right. If they are not allowed to do so, the possibility of use of force is always there and the result will be violence, chaos, disorder and ultimately the danger to the unity of this country."
Karnataka High Court
Mangaluru Firing incident
The Karnataka High Court rapped the Police authority for their failure to register any FIR on complaints made by the family of the two persons who died on December 19, 2019, allegedly in Police firing at the anti-CAA protest rally in Mangaluru.
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The High Court also issued notice to the state government on a PIL seeking a judicial inquiry into the matter, by a sitting/retired judge of the High Court.
On February 17, the High Court granted bail to 22 people booked by the Mangalore police on allegations of violence and attack on police during anti-CAA protests in Mangaluru on December 19, 2019.
The Court observed that the material collected by the Investigating Agency did not contain any specific evidence as to the presence of any of the accused at the spot; on the other hand, omnibus allegations were made against a Muslim crowd of 1500 – 2000, alleging that they were armed with weapons like stones, soda bottles and glass pieces.
"In an offence involving large number of accused, identity and participation of each accused must be fixed with reasonable certainty. In the present cases, a perusal of the case records produced by the learned SPP-I indicate that the identity of the accused involved in the alleged incident appear to have been fixed on the basis of their affiliation to PFI (Popular Front Of India) and they being members of Muslim community. Though it is stated that the involvement of the petitioners is captured in the CCTV footage and photographs, no such material is produced before this Court showing the presence of any one of the petitioners at the spot armed with deadly weapons," the Court said.
This order was stayed by the Supreme Court in March 2020, without setting out any reasons whatsoever, in a special leave petition filed by the State Government; despite a prima facie observation of the High Court that violence was started by the police.
The protestors were finally released after several months, in pursuance of the Supreme Court's order dated September 9, whereby a three-Judge Bench ultimately concurred with the findings of the High Court.
"Having regard to the observation of the High Court that it was not possible to prima facie determine the presence of the accused persons at the spot and without treating the said observation as final finding of the fact, we consider it appropriate to direct that the applicants be released on bail," the Top Court observed.
Clearly, the 22 accused persons were kept in detention for over 6 months, despite prima facie findings made by the High Court in their favour. What is even more damning is that the Supreme Court ordered to curtail their personal liberties, without a passing a speaking order as to why the High Court order was stayed.
Imposition of S. 144 in Bengaluru
In a major win for freedom of speech and expression and right to dissent, the Karnataka High Court on February 13, 2020 held that the prohibitory orders issued by the State Government on December 18, 2019, to prevent all public rallies against the CAA were "illegal" and could not stand scrutiny of law.
Fundamental Right Of Holding Peaceful Protest Is A Basic Feature Of Democracy : Karnataka HC
"The violation of fundamental right to hold peaceful protests, which is a basic feature of democracy, cannot be taken lightly by a writ court," a Division bench of the High Court had remarked.
The Court said that a test of legality of a prohibitory order under Section 144 of Code of Criminal Procedure is not one of "mere technicality" but was a "matter of substance", as question of infringement of fundamental right to freedom of speech and expression and freedom of peaceful assembly under Articles 19(1)(a) and 19(1)(b) are involved.
It noted that the order of the Commissioner of Police (exercising powers of District Magistrate), did not reflect the subjective satisfaction formed regarding the need to impose restrictions to quell immediate threat to law and order.
Referring to the recent decision of apex court in Anuradha Bhasin v Union of India case regarding Kashmir lockdown, the HC observed that formation of opinion by District Magistrate on inquiry was necessary. The Court also noted that some of the Deputy Commissioners had already granted permission for protests on the date of prohibition. This was not disclosed in the reports submitted by them to the Commissioner.
"The effect of order under sub-section (1) of Section 144 of the said Code is to take away the fundamental rights of the citizens and therefore subjective satisfaction of the District Magistrate and formation of an opinion as required by sub-section (1) of Section 144 of the said code are condition precedent for the exercise of power under Section 144 of the said code. So is the requirement of recording at least brief reasons", the Court emphasized.
Madras High Court
Set aside orders barring peaceful Protests
Two significant orders passed by the Madras High Court facilitated citizens to exercise their right to freedom of speech and expression and vocalize their reservations against the Citizenship Amendment Act.
In an order dated February 11, 2020, a Single Judge Bench of the High Court granted permission to a social organization to conduct a public conference against CAA and NRC, on a mere condition that they shall not disturb law and order. It thereby set aside the order of the state administration, denying permission to hold the said conference.
Similarly, on March 13, 2020, the High Court set aside an order passed by Superintendent of Polict, Trichy (Rural) which denied permission for a public protest meet against the CAA. The right to hold public meeting is traceable to Article 19(1)(a) and 19(1)(b) of Constitution of India. These provisions guarantee to all citizens the right to freedom of speech and expression and to assemble peaceably and without arms", Justice Swaminathan said in the judgment.
Note: The Court refrained from granting permission to the petitioners for holding the event taking note of the prohibitory orders imposed by the Government in view of COVID 19 pandemic.
Prevented unwarranted penal action against peaceful protestors
In an important decision in July 2020, the High Court ruled that a Police Officer is not a competent person to register an FIR for any of the offences falling under Section 172 to 188 of IPC (offences pertaining to Contempt of Lawful Authority of Public Servants). It reminded the authorities of the Supreme Court's ruling in Jeevanandham & Ors. v. State, where it was unequivocally held,
"The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC."
Thus, while setting aside an FIR registered against a person accused of protesting in the public road against CAA without getting prior permission from the concerned authority, the Court held,
"He (Police Officer) is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the protest formed by the petitioner and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed."
Recently, on November 5, 2020, the High Court quashed the FIRs filed against two CAA-NRC protesters from Shenkottai, Tamil Nadu, as "no untoward incident had taken place". A Single Bench observed,
"The Country had witnessed protests all over by different sections of people against the said amendments. Since the protest was peaceful and even the First Information Report does not disclose any act of violence or happening of the untoward incident, I am of the view that the continued prosecution is not warranted. Quashing the same will secure the ends of justice."
The interim order was passed by a bench comprising Chief Justice Ajai Lamba and Justice Achintya Malla Bujor Barua in PILs filed by Advocate Banashree Gogoi, Deva Kanya Doley and journalist Ajit Bhuyan.
Delhi Courts' response
The subordinate courts at Delhi passed several notable orders granting bail to persons arrested for alleged violence during anti-CAA protests.
In many such orders, the Courts noted that there was no evidence of the accused persons causing violence.
In January 2020, the Tis Hazari Sessions Court made an interesting pronouncement that the reading of the Preamble to the Constitution cannot be regarded as an incitement to violence.
This was in the order granting bail to political activist Chandra Shekhar Azad.
In February, the national capital was shaken by communal riots at the North East districts, which led to the death of at least 53 people and left around 200 injured over the course of 10 days.
The Delhi police formulated a conspiracy angle to link the anti-CAA protests to the Delhi riots. Several student leaders and activists were arrested under the draconian anti-terror law, the Unlawful Activities Prevention Act, alleging that the anti-CAA protests were a conspiracy to foster riots.
The violent episode led to detention of several students and activists, that was later found to be arbitrary and without any prima facie grounds, by the Courts. Whereas Trial in said cases is yet to begin/ pending, the following cases depict the 'vindictive' manner in which, the executive sought to suppress the dissenting voices.
Delhi Riots: Damning Observations In Court Orders Raise Questions Over Delhi Police Probe
Did Constitutional Courts fail to show urgency during alleged Police excesses in Jamia Milia?
Escalation of peaceful protests at Jamia Milia Islamia against implementation of the Citizenship (Amendment) Act, 2019 on December 15, 2019, led to excessive use of force on behalf of the Delhi Police. It was alleged that the Police forcefully entered into the university premises, used teargas shells and lathis, and detained multiple students for a few hours, with no access to medical or legal aid.
When the Supreme Court was called upon to order a judicial probe into the matter, the parties were relegated to the High Court.
The High Court denied interim protection to the students booked by the Police, stating that it would like to hear the Government first, on February 4, 2020, i.e. almost 2 months later. The case was later adjourned to April 29, again without any interim directions. At the same time, the High Court was convinced to form a Committee to look into the alleged incident of people shouting 'shame, shame' in the Court after it had adjourned the case for two months without granting interim protection.
The first known judicial order, showing some sort of concern over the alleged incident came from a local Court in Saket District on January 22, 2020 (over a month after the alleged incident occurred), whereby an Action Taken report was sought from the Delhi Police.
Latest Update: Hearing in the case against Jamia violence is at the arguments stage before the High Court.
Meanwhile, the National Human Rights Commission passed an order recommending a probe by a Special Investigation Team of the Delhi police itself to identify and arrest the "real perpetrators" behind the protests, which were termed violent by the NHRC.
The human rights body put blame on the students of the University for holding protests without proper permission and stated that the students of Jamia were responsible for instigating the actions of the Delhi Police.
Conclusion
The Supreme Court acted as a mute spectator whilst young students of the country, activists, etc. were smacked with lathis, rubber bullets, water cannons, etc. At least 31 people lost their lives during the violence, thousands were injured, but not a single direction was issued to ensure that medical assistance is provided to the victims. In a situation where time was of essence, human life and dignity was at stake, the Apex institution of the country relegated parties to approach the 'appropriate forum' as it would not have been 'feasible' for it to hear them all.
While the apex court is yet to give a decision on the constitutionality of the CAA, it passed a judgment in October declaring the 'Shaheen Bagh' model of protests as illegal.
Nevertheless, it is one's fervent hope that the Supreme Court will expeditiously decide pleas against the controversial legislation and issue guidelines to prevent such massive outbreaks in the future. It is pertinent to regulate the use of Section 144 CrPC by the Governments and to lay down a strict procedure that has to be followed in such situations.
That apart, it is necessary to sensitize the ground force, i.e. the Police, CRPF, etc. against use of excessive force upon citizens, and make sure that the errant officers are brought to books.
