Karnataka HC To Examine On February 12, The Validity Of Section 144 Order Passed By CP On December 18, 2019

A division bench of Chief Justice Abhay Oka and Justice Hemant Chandangoudar directed the perimeters to file their rejoinder to the statement of objections filed by the state government.

The bench had on the last hearing had said "We are not concerned with the subject of the protest our concern is about decison making process which undoubtedly curtails the fundamental rights. It is indeed a preventive measure. The preventive measure has effect of curtailing fundamental rights of citizens. Prima facie, opinion formation under is not reflected in the order. Therefore these petitions be taken up for hearing at preliminary stage. Issue whether permission granted can be revoked by passing order under section 144 and that also without giving pre-post decision hearing will have to be gone into."

The state has in it's objection said that the order did not violate the petitioners Fundamental Rights, under Article 19 (1) (a) and 19 (1) (b), as it merely places reasonable and temporary restrictions on the exercise of said fundamental rights in the larger interest of maintaining public order.

Further, it is said that "Upto the morning of December 18, 2019, the state was consistently permitting persons to conduct peaceful protest both against and in favour of the recent amendment bill passed by the Union Parliament. Since the underlying issued had polarized opinions across the country and some of the protest had turned violent in some of the other states, extreme care had to be taken by the Karnataka State machinery to ensure that protest in the state do not take a violent turn, thereby affecting public order and peace. It was in this background that on December 18, 2019, divisional deputy commissoners of police, addressed communication to Commissioner of Police, Bengaluru requesting that an order be passed under Section 144 in order to maintain law and order, the statement reads."

As regards to the question raised by the court about the order under section 144 violating principles of natural justice as petitioners were granted prior permission which was revoked it is said that "A grave and emergent situation emerged which neccessiated the issuance of an order under section 144, interalia revoking all permissions granted earlier to conduct processions/ rallies. Given the urgency of the situation and emergent situation it was not possible for all the person's in whose favour permissions had been granted to be given an opportunity of hearing."

It is added that "Section 144 orders can be passed ex-parte and the passing of such orders cannot be said to violate the principles natural justice, even though the orders might curtail certain private rights.