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Section 144 Does Not Violate Fundamental Rights, It Merely Places Temporary Restrictions In Larger Interest Of Maintaining Public Order: Karnataka Govt Tells HC

Mustafa Plumber
6 Jan 2020 5:11 PM GMT
Section 144 Does Not Violate Fundamental Rights, It Merely Places Temporary Restrictions In Larger Interest Of Maintaining Public Order: Karnataka Govt Tells HC
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The Karnataka Government in it's statement of objection filed in response to a bunch of petitions filed in the Karnataka High Court, challenging order passed under section 144, by the Bengaluru Police Commissoner on December 18, 2019, a day before the Anti Citizenship (Amendment) Act, rallies were to be held in the city, have said that 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.

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.

The Karnataka High Court had said that it will go into the legality of order passed under section 144, by the Police Commmssioner, on December 18, while hearing the petitions it had asked the state to file it's objections by January 6.

A bench led by Chief Justice Abhay Oka 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 statement also says that state has no intention of muzzling the petitioners right to conduct peaceful protest and in fact fully respects the right. The same is evident from the number of protest that have been permitted after the expiration of section 144 order.

Further it is said that the impugned order was passed after subjectively satisfying that such an order was necessary. Plain reading of the order itself shows that it has been passed after due application of mind and through examination of material available before the authorities.

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."

The court is likely to hear the petitions on Tuesday.  

Click here to download the statement of Objections

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