Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

EVENTS LEADING TO THIS ORDER


  • The Citizenship (Amendment) Act, 2019 (CAA) was passed last year which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
  • The passage of CAA led to nationwide protests calling the CAA and the National Register of Citizens discriminatory. A women led protest 24/7 sit-in protest was also initiated in Shaheen Bagh, Delhi.
  • The Shaheen Bagh protest resulted in the closure of the Kalindi Kunj Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.
  • When the law enforcement authorities were control the protests and traffic, the Supreme Court opted for an ‘out of box’ solution and appointed Senior Advocate Sanjay R. Hegde and mediator trainer Sadhana Ramachandran as interlocutors.
  • The interlocutors made appreciable effort and submitted a report on 24.02.2020 which highlighted that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. The interlocutors did their best, but their efforts could not fructify into success, although the number of people at protest site had eventually diminished.
  • The second report suggested that
    • The views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance.
    • While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road.
    • It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other.
    • Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.
  • With the advent of COVID-19 Pandemic, greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared. On this, the Court noticed

“Thus, really speaking, the reliefs in the present proceedings have worked themselves out.”

WHAT THE COURT SAID ON THE RIGHTS OF THE PROTESTERS


“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.”

The Court noticed that the Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e.,

  1. the right to freedom of speech and expression under Article 19(1)(a)
  2. the right to assemble peacefully without arms under Article 19(1)(b).

These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.

“Each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.”

Noticing that in this age of technology and the internet, social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication, the Court said that technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses.

“The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship; however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident.”

The Court said that both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks – as has been opined by the interlocutors and caused inconvenience of commuters.

WHAT THE COURT SAID ON THE RESPONSIBILITIES OF THE LAW ENFORCEMENT AUTHORITIES


“The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from.”

In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions.

The Court noticed that in the present case, unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.  It concluded with the following words:

“We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808, decided on 07.10.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ. has quashed all FIRs filed against the foreign nationals who indulged in Tablighi Jamat. Justice Nalawade pronounced the Judgment authored by him, in which certain scathing observations were made which are quoted verbatim:

“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading the Covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”

Interestingly, however, it is to be noted that the brief of the Judgment which follows is based on the observations and reasoning of Justice Nalawade only. As Justice Sewlikar has agreed only with the operative part of the Judgment but has “disagreed with some reasoning”. It has been stated that the reasoned Judgement of Justice Sewlikar will follow.

Also, after the Judgment was pronounced, M.M. Nerilkar, APP, requested the Court to put a stay on the order. This request was, however, not acceded to by the Court.

Case against the petitioners

The prosecution case was that the petitioners-foreign nationals had come to Ahmednagar in groups with some Indian nationals and they had visited many places, they were living in masjids (mosques) during their stay. On 14-3-2020, Covid-19 lockdown was declared by the Maharashtra State Government and by the notification dated 23-3-2020 direction was given to close the religious places. Powers were given to District Authorities by the Government to exercise powers under the Epidemic Diseases Act, 1897. By exercising these powers, District Magistrate had issued prohibitory orders and directions were given to close all public places. In spite of prohibitory orders and conditions of visa, the petitioners indulged in Tablighi activity. Announcements were made at public places to ask the persons who had attended Markaz Masjid to come forward voluntarily for testing them in respect of Covid-19 virus, but they did not come forward voluntarily and they had created threat of spreading Covid-19 virus. It was necessary for them to give necessary information to the local authority in Form ‘C’, but they had given incorrect addresses in Form ‘C’ and they were actually living in Masjids. Visa conditions prohibited Tablighi work by foreign national tourists. Therefore, charge-sheets were filed against the petitioners under Sections 188, 269, 270 and 290 of the Penal Code and various provisions of the Maharashtra Police Act, 1951; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

It is noticed that people are afraid of test taken for detection of virus. That is why the infected persons are brought very late to the hospitals and they die. In the present matter, it is not the case of the State that the petitioners were hiding in Masjid or other place in Ahmednagar to avoid the test.

Petitioners’ case

It is the contention of the petitioners, who are mainly foreign nationals, that they came to India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. On their arrival at the airport, they were screened and tested for Covid-19 virus and only when they were found negative for virus, they were allowed to leave the airport. They were visiting various places of India and particularly Ahmednagar to observe the religious practices of Muslims. After their arrival in Ahmednagar district, they had informed to District Superintendent of Police about their arrival and that was done much prior to the date of registration of the crime against them. Due to the lockdown, the vehicular moment was stopped and the persons were not allowed to leave the residential places to prevent the spreading of Covid-19. The masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. Some order was issued by the Collector, but that was not actually prohibitory order and they were not involved in illegal activity including the breach of order of District Collector. Even at Markaz, they had observed norms of physical distancing. While granting visa, they were not asked to inform local authorities about their visit to those places, but they had informed local officers. Under the conditions of visa, there was no prohibition to visit religious places like masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. They were not involved in a breach of orders or in propagating Muslim religion.

In view of the Articles of Indian Constitution like Articles 25 and 21, when visa is granted to foreigners, such foreigners cannot be prevented from visiting masjids, if they go there to observe religious practices or to offer only namaz.

What is Tablighi Jamat

As noted by the Court, Tablighi Jamat movement was founded by Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants. This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards. Muslims from all over the word come to India as they are attracted to the reform movement of Tablighi Jamat and they visit Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi. Considering the dates of arrival of the petitioners to India and their departure from Delhi also shows that there was no particular day fixed for the congregation or any function. Initially, the Court thought that for some function arranged by Tablighi Jamat at Markaz, the foreigners had come, but the record shows that there was no function and it is a continuous activity. From so many years Muslims from various countries have been coming to India to visit that place and they have been coming on a tourist visa. The visits of these foreigners to masjids from India were not prohibited and even discourse was not prohibited. The activity of Tablighi Jamat got stalled only after declaration of lockdown in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things needs to be kept in mind while considering the cases filed against the petitioners.

There is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners. The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied.

Court’s opinion and decision

The main thrust of the prosecution was on breach of so-called conditions of the visa. The other main contention was in respect of breach of orders issued by the authorities created under the Disaster Management Act, 2005 and the orders issued under Epidemic Diseases Act, 1897.

(i) On violation of Visa Conditions

If there is breach of visa conditions, it can be said that offence under Section 14(b) of the Foreigners Act is committed by the foreigners. To make out this offence, it needs to be shown that there was some visa condition in existence at relevant time and the foreigners have acted in breach of that condition.

Perusing the latest updated Visa Manual, the High Court noted that “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses”.

Discussing the evolution of Tablighi Jamat and the meaning of “discourse”, the Court observed:

Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world. In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.

The Court also noted that the record showed that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabic, French, etc. It was concluded that it can be said that the foreigners may have the intention to know the ideas of Tablighi Jamat about the reformation. It was stated that unless a particular programme of a foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.

The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.

Having noted that freedoms under Article 19 are not available to foreigners, the Court stated that it needs to be kept in mind that when the permission is given to the foreigners to come to India under visa, at least Article 25 comes in to play. Then there are Articles 20 and 21 which are also available to foreigners.

Record shows that it was not made known to the holders of visa that they were prohibited from visiting Masjids or staying in Masjid. On the contrary, in the past and in updated guidelines instructions were issued to the effect that they were allowed to visit the religious places.

Considering the schedule of petitioners’ arrival in India and the dates when they were taken in custody, the Court said that there is more possibility that they got infected in India and they were not already infected when they arrived in India. Further, admittedly screening at the airport was done of these petitioners before allowing them to leave the airport. The Court reiterated that criminal cases cannot be tried on suspicion.

“Reformation is continuous process in every religion and such process is necessary for peaceful co-existence. Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation”

Noting India’s culture and tradition of “Atithi Devo Bhav” which means that our guest is our God, the Court said that the circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by the Covid-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus, etc.

Finally, noting provisions of the Constitution, the Court concluded:

“Article 20 of the Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.”

In such circumstances, the Court held that the material was not sufficient to make out prima facie case for the offence punishable under Section 14(b) of the Foreigners Act.

(ii) On “Smell of Malice”

Discussing what must have tempted the authorities to issue such directions against the foreigners like the petitioners,  the Court noted that the action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tablighi Jamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needed to be considered by the Court. IT was observed:

“There were protests by taking processions, holding dharana at many places in India from atleast prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that the Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”

  (iii) On violation of District Authority’s orders

Perusing the record and discussing the alleged offences against the petitioner, the Court was not inclined to accept that there was any violation of the order passed by District Authorities. The Court went on to observe:

“It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. Through hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united.”

The Court concluded that Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.

Therefore, it was held that it will be abuse of process of law if the petitioners are directed to face the trial in aforesaid cases. As a result, all FIRs filed against the petitioners were quashed by the Court.

[Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, decided on 21-08-2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., allowed a criminal petition and quashed proceedings in the criminal case filed against the petitioner protesting against Citizenship Amendment Act.

Case of the prosecution

Petitioner along with other accused persons protested in the public road against the implementation of the Citizenship Amendment Act and further demanded the central government to withdraw the said Citizenship Amendment Act without getting prior permission from the authority concerned.

Police filed an FIR on the basis of the above-stated allegation under Sections 143 and 188 of Penal Code, 1860.

Petitioner’s counsel submitted that the Supreme Court of India has held that right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of the Constitution of India.

Bench observed that the petitioner along with other persons protested against the implementation of Citizenship Amendment Act and demanded the Central Government to withdraw the same. The protest was conducted on a public road without getting prior permission from the authority concerned.

Thus, on the basis of the above-stated respondent police had levelled charges under Sections 143 and 188 IPC.

Further the Court also noted the fact that no one was examined to substantiate the charges against the petitioner except for the official witnesses.

Only question for consideration is that whether the registration of case under Sections 143, 188 IPC, registered by the respondent is permissible under law or not?

Court referred to Section 195(1)(a)of the Criminal Procedure Code, 1973 for the above stated question, which talks about:

Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

Referring to the above, Court stated that

it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.

Thus, while quashing the proceedings against the petitioner, Court stated that, FIR had been registered by the respondent police for the offences under Sections 143 and 188 IPC. He 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. [Shamsul Huda Bakavi v. State, 2020 SCC OnLine Mad 1298 , decided on 26-06-2020]

Case BriefsSupreme Court

Supreme Court: In JNU student Sharjeel Imam’s plea to club all FIRs filed against him for his speech during the anti-CAA protests in Delhi, the bench of Ashok Bhushan and V. Ramasubramanian, JJ has asked the State of Manipur, Assam and Arunachal Pradesh to file counter affidavit within 2 weeks and has listed the matter after 3 weeks. Uttar Pradesh and NCT of Delhi have already filed counter affidavits.

The Court, however, refused to pass any interim order before seeing the replies of all the five States.

Sharjeel Imam, an activist and JNU student, has been booked under several cases for allegedly delivering inflammatory speeches against Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC).

[Sharjeel Imam v. Govt. of NCT of Delhi, 2020 SCC OnLine SC 526 , order dated 19.06.2020]

Hot Off The PressNews

Supreme Court: After the Uttar Pradesh government has knocked the door of Supreme Court, challenging the Allahabad High Court’s order regarding the removal of hoardings put up by the state government, with names, addresses and photographs of those who were accused of violence during anti-CAA protests, the Court has referred the matter to a 3-judge bench.

Senior lawyer Abhishek Singhvi, appearing for ex-IPS officer SR Darapuri, told the Court that Darapuri is ’72 batch IPS officer who retired as IG. While citing examples of cases of child rapists and murderers, he said,

“Since when and how do we have in this country a policy to name and shame them? If such a policy exists, a man walking on the streets or roads may be lynched.”

Senior lawyer Colin Gonsalves, appearing for accused Mohammad Shoaib, submitted that this is the grossest form of violation which his client was facing now.

“Somebody can come to my home and kill me.”

Taking the suo moto cognisance of the public interest litigation on the issue, the High Court in an unprecedented sitting on Sunday termed the act of putting up photos of protesters as “unjust”. The hoardings included pictures of Shia cleric Maulana Saif Abbas, former IPS officer SR Darapuri and Congress leader Sadaf Jafar, all of whom were named as accused in the violence that swept the state capital on December 19 last year.

(Source: ANI)

Op EdsOP. ED.

There has been much ado about the 2019 Amendment to the Citizenship Act. It has been attacked as being unconstitutional — falling foul of the constitutional guarantee of equality, the principles of secularism and the Constitution’s basic structure. The law covers three aspects — one, facilitating persons of religious minorities who suffered persecution in Afghanistan, Bangladesh, Pakistan to acquire Indian citizenship, secondly, the law is inapplicable to certain areas and thirdly cancellation of registration as overseas citizen of India cardholder.

The amendment, as is clear from the statement of objects and reasons as also the provisions, is a law seeking to facilitate religious minorities in the named countries which have a State religion acquire Indian citizenship as a one-time measure. It is unambiguous and does not adversely affect any Indian or the pluralistic, secular character of our polity or the Constitution. However, there appears to be a lot of misinformation engendering apprehension, opposition and protests. There is the imperative need to allay all fears and reassure the people.

The amendment does not even remotely touch in any manner any Indian of whatever faith. Nor does the amendment deny Indian citizenship to any person. Articles 5 to 10 of the Constitution govern citizenship at the commencement of the Constitution. Article 11 empowers Parliament to enact law regulating the right of citizenship. The Citizenship Act, 1955 is such a law providing for the acquisition, determination and termination of citizenship subsequent to the commencement of the Constitution. Foreigners who enter India without valid documents are illegal migrants and are not entitled to stay in India.

Any person of any nationality and faith is entitled to apply for Indian citizenship and to be granted that under the Citizenship Act. An illegal migrant is defined there under Section 2(b). There is no change in the law except that the amendment has carved out an exception by adding a proviso to Section 2(b). It is this — the first aspect of the amendment which has generated widespread, though misplaced, criticism and protest. It provides that  Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Afghanistan, Bangladesh, Pakistan (religious minorities who suffered persecution there) who entered India on or before 31-12-2014 and who are exempted from the adverse, penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 shall not be treated as illegal migrants. Such exemption notifications were already issued in 2015 and 2016 and such exempted persons were also made eligible for long-term visa. The present amendment is only a normal sequel to all this and makes such persons eligible for citizenship. It is also a natural follow up to the partition and the events of 1947 and the fulfillment of the promises since then over the years. The exemption notifications and the orders regarding long-term visa have been in place for some years now. There has not been any objection or challenge to all this, and rightly so. This has now become plenary law and such persons as mentioned in the proviso are made eligible for being granted citizenship, subject to the prescribed statutory conditions.

At first blush, the law may appear to be discriminatory and unconstitutional, but such charge does not stand closer scrutiny. The gravamen is that the law singles out and excludes Muslims, that there is hostile discrimination against them rendering the law ultra vires Article 14 and unconstitutional. These apprehensions and contentions, it is submitted, are misconceived.

Article 14 guarantees equality before law and equal protection of the laws. This has been the subject-matter of constitutional interpretation and exposition over the decades and its scope and ambit are well settled. The amendment does not violate Article 14. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. In addressing this problem the courts have neither abandoned the demand for equality nor denied the legislative right to classify. The seemingly contradictory demands of legislative specialisation and constitutional generality have been resolved by the doctrine of reasonable classification. It is one which includes all persons who are similarly situated with respect to the purpose of the law which may be the elimination of a public mischief or the achievement of some positive public good. In the present case there is a reasonable, valid classification of persons of religious minorities in the three-named theocratic States who came to India before a cut-off date. Such persons are not treated as illegal migrants and special provisions are made as to their citizenship.

The law is criticised for not including Muslims from the named countries as also persons suffering persecution in other neighbouring countries. Classification is permissible; even if it is taken to be an under-inclusive classification, the courts have held that it would be justified considering that legislative dealing with such matters is usually experimental. The amendment would help 31,313 persons who belong to this category as per figures furnished by the Intelligence Bureau to the Joint Parliamentary Committee. It is said as a fact that no Muslim from any of these or other countries has come to India seeking refuge. Classification is dependent upon the peculiar needs and specific difficulties of the community which are constituted out of facts and opinions beyond the easy ken of the courts. It is largely dependent on the assessment of the ground realities which the legislature is best, and perhaps exclusively, equipped to make.

Certain constitutional fundamentals are well established.

There is always a presumption in favour of the constitutionality of a statute. It is presumed that the legislature understands and correctly appreciates the needs of its people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. And in order to sustain this presumption, the courts may take into account matters of common knowledge and report and history and assume every state of facts which can be conceived existing at the time of the legislation. A law need not be all-embracing. A legislature acting within its domain is not bound to extend laws to all cases which it might possibly reach. The legislature is free to recognise degrees of harm and confine its laws to those classes of cases where the need seemed to be clearest; and that is a matter of legislative judgment. If the law presumably hits the evil where it is most felt it is not to be overthrown because there are other instances to which it might have been applied. Therefore the grievance and argument that others in the three-named countries and those persecuted in other neighbouring countries should have been included and meted out the same treatment does not avail.

The great divide in the area of whether classification is reasonable or not lies in the difference between highlighting the actualities or the abstractions of legislation. As society becomes more complicated, the greater is the diversity of its problems and more does legislation direct itself to such diversities. “Statutes are directed to less than universal situations. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of the legislature which has the responsibility of   making the law fit fact.” The legislature, for dealing with complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate. As Justice Frankfurter observed, “Laws are not abstract propositions but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies.”

Therefore when there is a classification the courts will not hold it invalid merely because the law might have been extended to other persons who might resemble the class for which the law is made. For, the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust the law according to the exigencies. Article 14 does not require that legislative classification should be scientifically perfect or logically complete.

The aforesaid settled legal position leads to the inevitable conclusion that the law does not fall foul of Article 14. Otherwise, we would be proving Anatole France right that the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread. “Bare equality of treatment regardless the inequality of realities is neither justice nor homage to the constitutional principle.” All apprehensions and contentions in that behalf are baseless and imaginary. Appeal to Article 15 or Article 25 as a ground of attack is equally misconceived and puerile. Article 15 is available only to citizens; no citizens have been discriminated or denied any right. Further, no one’s freedom of religion or conscience is interfered with or curtailed. Locus is not simply technical. No rights of those who assail the law have been violated. No foreigner has a right to claim Indian citizenship or an easier means of acquiring it.

There is more rhetoric than legal reasoning in the contention that the law is opposed to the principles of secularism and infringes the Constitution’s basic structure. A law can be invalidated only on the ground of lack of legislative competence or violation of any constitutional provision. Neither ground is present here. Any law regarding citizenship is within the exclusive domain of Parliament and this parliamentary enactment does not infringe any constitutional provision. The basic structure doctrine is a ground and the only ground to challenge a constitutional amendment. It is unavailing in the case of ordinary legislation though there may be some judicial gratis dicta to the contrary stated with flourish which do not represent the correct and settled legal position. Justice Cardozo’s remarks come home with a strange poignancy: “The half-truths of one generation tend at times to perpetuate themselves in law as the whole truths of another, when constant repetition brings it about that qualifications taken once for granted are disregarded or forgotten.”

It is to be remembered and reiterated that the amendment does not take away citizenship of any Indian, the law does not exclude anyone, but it does not include some within its ken. Whether this is the best or wisest law is a matter for Parliament, not for the courts. The courts are concerned only with the constitutionality of a law, not its wisdom, desirability or expediency. We ought not to confuse constitutionality with wisdom, desirability or morality.

It is to be emphasised that every other person of whatever nationality or faith is entitled to apply for and seek Indian citizenship like those persons mentioned in the proviso to Section 2(b). It is only that for that class mentioned in the proviso there is a fast-tracking in the matter of granting citizenship; nothing more. This has nothing to do with NCR and NPR and does not affect any Indian. Linking CAA with NCR or NPR is quite far-fetched. 

The concept of NCR is, however, not anything new. The Citizenship Act in Section 14-A provides for registration of every Indian citizen and issue of national identity card to him. It also provides for maintaining a National Register of Indian citizens and establishment of a National Registration Authority for that purpose. This provision has been in force since December 2004 and significantly there has been no objection or challenge to this for all these 15 years. Indeed there can be no objection. Every country maintains a register of its citizens. This is nothing unknown to civilised polities. The National Population Register is equally unexceptionable. Deficiency, if any, in the working of the system is an independent issue that would have to be addressed. The concept per se cannot be faulted. The grievance of most of the critics and agitators appears to be not so much against the law but more of an antipathy to the present Government and expression of the wish of what the law should be.

The protests are a result of a wrong impression and apprehension that the law may be used to deprive some citizens of their citizenship or drive them out of India. This is totally baseless. The law is clear and deals with conferring citizenship on a class of persons more easily. It does not preclude persons outside the class from applying for and getting Indian citizenship in the regular course. It certainly does not deprive any citizen of his rights nor can it be used for such ends.

It is accepted constitutional jurisprudence that individuals have rights against the State that are prior to rights created by explicit legislation. This is also the philosophy and purport of the US Constitution Ninth Amendment. More significantly Article 19 confers on the citizens the fundamental rights to move freely throughout the territory of India and to reside and settle in any part of India. Article 19 refers to natural or common law rights as distinguished from rights created by a statute. As the Supreme Court has held Article 19(1) guarantees those great basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country. They inhere in the person and are not the gift of any law or the Constitution. They cannot be taken away even by a constitutional amendment. Therefore all fears about depriving citizens of their rights are a result of misinformation and require to be set at naught.

While this is the legal position and people should not be misled or misinformed, it is wrong to describe those who oppose this measure as anti-national. A democratic society lives and grows by accepting ideas, experimenting with them and if necessary rejecting them. The right to dissent is conferred by the Constitution and is implicit in a democracy. Discussion and dissent are the very life breath of democracy. But no democracy can afford or support violence. Violent protests as well as putting down dissent — both are a negation of democracy. The right to protest entails the duty to listen to other voices and shun any rigidity or intolerance. Or else democracy will degenerate into mobocracy which gives the crown to the mob with the loudest voices, the biggest sticks and the readiest fists.

Government has to be responsible and responsive. Law must reflect the “general will” — public opinion which is evolved as a consensus through informed debates and discussion. Law is not an end in itself but only a means of achieving social good. The power of the State to implement and enforce obedience to the law carries with it the duty and responsibility of making the law known and understood in the right perspective. Government, it is said, is a potent, omnipresent teacher. It is the duty of every good, civilised government to promote the intelligence of its people, to discuss, inform and educate the nation. Government should embark upon an exercise to educate the people on the nuances of the law with patience and understanding. The amount of time that people spend in hearing each other talk is said to be an important constituent of political life. Enduring institutions depend upon the enduring support of ordinary people. To a query as to what kind of Government the Constitutional Convention of 1787 had created in USA, Benjamin Franklin replied, “A republic, Madam, if you can keep it.” The most effectual means of preventing perversion of power and preserving the democratic republic “is to illuminate the minds of the people at large.” This is what is of utmost need and urgency today.

The amendment does not require the approval of any of the States. They have no role and some Chief Ministers opposing it is wholly irrelevant. While one may criticise and oppose a law, as long as the law stands one is bound to obey and abide by it. Persons occupying constitutional positions protesting against the law, passing resolutions in the State Legislature and threatening not to obey and implement it, is very disturbing. It amounts to a breach of the constitutional oath of office which would render them unworthy and ineligible for public office. It also amounts to failure of the constitutional machinery inviting remedial action under the Constitution. Worse and more misconceived is the filing of suits under Article 131 challenging the law.

We would do well to recall Rousseau’s admonition: The first of all laws is to respect the laws.


† Advocate. He can be reached at vsudhishpai@gmail.com.

 

Hot Off The PressNews

As reported by ANI,

A Division bench comprising of DN Patel CJ and C Harishanka, J. of Delhi High Court have issued a notice with regard to the identification and clearance of the roads that have been blocked by the protesters while protesting against the new Citizenship Law.

The petition was filed by an activist Ajay Gautam with regard to identifying the roads and for the evacuation of the protesters with an immediate clearance of the roads.

It also sought action against the opposition leaders who were allegedly provoking protesters at Shaheen Bagh.


[Source: ANI]

Hot Off The PressNews

Supreme Court: A bench of SK Kaul and KM Joseph has adjourned March 23 hearing on pleas seeking removal of the crowd protesting against the Citizenship Amendment Act (CAA) at Shaheen Bagh area in the national capital. The bench said that it had to look into the road closure issue.

“We are informed that there are certain unfortunate issues that happened,”

The Court also refused to interfere with the application, filed by Chandrashekhar Azad and social activist Bahadur Abbas Naqvi, seeking courtmonitored SIT probe into the alleged Delhi riots observing that the Delhi High Court is looking into the matter. Justice Kurian Joseph, however, expressed his displeasure over the way the police have acted. He said.

“you (police) have to act immediately to handle the situation.”

On Monday, the two Amicus Curiae, senior advocates Sanjay Hegde and Sadhana Ramachandran, had submitted their report in a sealed cover to the Court after engaging with the anti-CAA protestors last week for shifting the venue from Shaheen Bagh. The Court had last week appointed senior advocates — Sanjay Hedge, Sadhana Ramachandran and former bureaucrat Wajahat Habibullah — as interlocutors to talk to the protestors here and urge them to clear the road and protest at an alternate site.

Earlier, the Court had observed that the protesters can continue their protests but in an area designated for protests.

The PIL, filed by Dr Nand Kishore Garg and Amit Sahni through their lawyer Shashank Deo Sudhi earlier this week, also sought appropriate directions to the Centre and others for removal of protesters from Shaheen Bagh near Kalindi Kunj. Sudhi had, on Monday, mentioned the matter before a three-judge Bench headed by CJI SA Bobde, who asked him to approach the registry for urgent listing of the matter.

The petition seeks appropriate direction to the respondents, including the Union of India (UOI) for laying down detailed, comprehensive and exhaustive guidelines relating to outright restrictions for holding protest/agitation leading to obstruction of the public place. It said that people in Shaheen Bagh are illegally protesting against the Citizenship Amendment Act (CAA) 2019, by blocking the common and public road connecting Delhi to Noida.

The Shaheen Bagh protest is an ongoing 24/7 sit-in protest, led by women, that began with the passage of the Citizenship (Amendment) Act, 2019 (CAA) which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.

Several petitions have been filed challenging the constitutional validity of the CAA. Earlier, on December 18, 2019, the 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ  had refused to stay the implementation of the Citizenship (Amendment) Act, 2019.


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019

Hot Off The PressNews

Supreme Court: A bench of SK Kaul and KM Joseph, JJ has adjourned the hearing in the matter pertaining to the protests against Citizenship Amendment Act (CAA) at Shaheen Bagh after the interlocutors submitted their report in a sealed cover. The Court will now take up the matter on February 26 after going through the report.

The two Amicus Curiae, senior advocates Sanjay Hegde and Sadhana Ramachandran, have submitted their report in a sealed cover to the Court after engaging with the anti-CAA protestors last week for shifting the venue from Shaheen Bagh. The Court had last week appointed senior advocates — Sanjay Hedge, Sadhana Ramachandran and former bureaucrat Wajahat Habibullah — as interlocutors to talk to the protestors here and urge them to clear the road and protest at an alternate site.

Earlier, the Court had observed that the protesters can continue their protests but in an area designated for protests.

The PIL, filed by Dr Nand Kishore Garg and Amit Sahni through their lawyer Shashank Deo Sudhi earlier this week, also sought appropriate directions to the Centre and others for removal of protesters from Shaheen Bagh near Kalindi Kunj. Sudhi had, on Monday, mentioned the matter before a three-judge Bench headed by CJI SA Bobde, who asked him to approach the registry for urgent listing of the matter.

The petition seeks appropriate direction to the respondents, including the Union of India (UOI) for laying down detailed, comprehensive and exhaustive guidelines relating to outright restrictions for holding protest/agitation leading to obstruction of the public place. It said that people in Shaheen Bagh are illegally protesting against the Citizenship Amendment Act (CAA) 2019, by blocking the common and public road connecting Delhi to Noida.

The Shaheen Bagh protest is an ongoing 24/7 sit-in protest, led by women, that began with the passage of the Citizenship (Amendment) Act, 2019 (CAA) which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.

Several petitions have been filed challenging the constitutional validity of the CAA. Earlier, on December 18, 2019, the 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ  had refused to stay the implementation of the Citizenship (Amendment) Act, 2019.


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ., while allowing the present petition with respect to the issue of right to agitation, held that,

“Our ancestors fought for freedom and also for the human rights and due to the philosophy behind the agitations, we created our constitution. It is unfortunate but, people are required to agitate against their own Government now but only on that ground the agitation cannot be suppressed.”

The present petition was filed against the order of the Police Inspector, Beed passed under Section 149 CrPC, the order passed by the Additional District Magistrate, Beed along with said the petitioners also sought for direction to respondents to see that petitioner companions were allowed to hold peaceful demonstrations and agitations at Old Idgah Maidan at Majalgaon for indefinite period between 6 pm to 10 pm.

Issue for consideration in the present petition is that:

Whether the aforesaid order issued under Section 37(1)(3) of the Maharashtra Police Act, 1951 could have been issued to prevent such agitation?

Analysis of High Court

Court noted that the order made by Additional District Magistrate shows that the District Superintendent of Police had informed by letter to the DM that many political parties and associations in the district had started agitations which included blockade of roads, taking out morchas, etc., for many causes including protest against the Citizenship Amendment Act (CAA).

Apprehension was that due to such agitations there was a possibility of some untoward incident and there was a possibility of creation of law and order problem. In the aforesaid order, DM prevent many activities which included carrying of arms, prevented sloganeering, singing, beating of drums, etc.

On taking the above into consideration, the Court said that there was no fairness in the above order.

Court added to its opinion that,

When such an act is made, some people may be of a particular religion like Muslims ay feel that it is against their interest and such an act needs to be opposed. It is a matter of their perception and belief and the Court cannot go into the merits of the same.

Courts are bound to see whether these persons have the right to agitate, oppose the law. If Court finds that it is part of their fundamental right, it is not open to the Court to ascertain whether the exercise of such right will create law and order problem.

Further the Court cannot go with the presumption that only a particular community or religion has interest opposing such law. As in the case of the present order that has been mentioned in the petition, it is clearly specified that persons of all religions have started the agitation.

We need to remember the constitutional and legal history when we consider the provisions of the constitution. We need to keep in mind the freedom struggle and the causes which were taken up by the freedom fighters.

Explaining and clarifying the right to agitate, Court also stated that,

India got freedom due to agitations which were non-violent and this path of non-violence is followed by the people of this country till date.

Referring to the present petition, Bench stated that petitioners and companions want to agitate peacefully to show their protest.

Our ancestors fought for freedom and also for human rights and due to the philosophy behind the agitations, we created our constitution.

Decision

Court is expected to consider the right of persons to start agitation in a peaceful way.

Court expresses that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law.

Stressing on the rights of people, Court pointed out that,

If the persons agitating believe that it is against the ‘equality’ provided under Article 14, they have the right to express their feelings as provided under Article 19 of the Constitution of India.

Fraternity

Circumstance that the persons of other communities, religions are supporting the minority community shows that we have achieved fraternity to a great extent.

“…it is the dissent of people against the act made by the Government and the bureaucracy needs to be sensitive when it exercises powers given by law.”

Thus, the people from bureaucracy need to be sensitized by giving them proper training on human rights which are incorporated as fundamental rights in the constitution.

Hence, High Court held that the order of Additional District Magistrate is illegal and needs to be quashed and set aside and consequently the order made by the police station concerned is illegal and is to be set aside. [Iftekhar Zakee Shaikh v. State of Maharashtra, 2020 SCC OnLine Bom 244, decided on 13-02-2020]

Case BriefsSupreme Court

Supreme Court: A bench headed by CJI SA Bobde has issued a notice to Centre and Delhi government asking it to respond to the death of an infant who was taken to Shaheen Bagh, the venue of protests against the Citizenship Amendment Act in the national capital.

The Court took suo moto cognizance on a letter by a National Bravery Award winner Zen Gunratan Sadavarte to stop involvement of children and infants’ in demonstrations and agitations. 12-year-old Zen Sadavarte from Mumbai had written the letter in wake of the death of a four-month infant at Shaheen Bagh. She has approached the CJI saying that the death of the infant Muhammed Jahan occurred due to atrocious suffering while its parents were participating in an agitation at Shaheen Bagh against Citizenship Amendment Act and sought direction for an investigation into the death.

During the hearing, CJI said

“We have the highest respect for motherhood, highest concern for children and they should not be treated badly,”

The CJI went on to ask, “Can a 4-month-old child be taking part in such protests?”

The Court also allowed Zen Sadavarte to assist the Court in the matter after her mother told the Court that she wants to make submissions before the Court.

The Shaheen Bagh protest is an ongoing 24/7 sit-in protest, led by women, that began with the passage of the Citizenship (Amendment) Act, 2019 (CAA) which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.

Four-month-old Muhammad Jahan, who accompanied his mother almost every day to Shaheen Bagh passed away in his sleep  on the night of January 30 after returning from the protests, allegedly after acquiring a severe cold and congestion following exposure to the winter chill at the protest site.

Several petitions have been filed challenging the constitutional validity of the CAA. Earlier, on December 18, 2019, the 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ  had refused to stay the implementation of the Citizenship (Amendment) Act, 2019.

[IN RE TO STOP INVOLVEMENT OF CHILDREN AND INFANTS IN DEMONSTRATIONS AND AGITATIONS IN VIEW OF DEATH OF AN INFANT ON 30.01.2020 AT SHAHEEN BAGH NEW DELHI, 2020 SCC OnLine SC 166, order dated 10.02.2020]

(With inputs from ANI)

Hot Off The PressNews

Supreme Court: A bench of SK Kaul and KM Joseph has said that the protesters at Shaheen Bagh cannot block public road and create inconvenience for others. Issuing notice to Delhi Government & Delhi Police, the Court posted the matter on February 17, 2020 and said,

“Protest has been going on for a long time, how can you block a public road.”

The Court observed that the protesters can continue their protests but in an area designated for protests.

The observation of the Court came while hearing the PILs seeking directions to the Central government for laying down guidelines relating to restrictions for holding protests leading to obstruction to public places.

The PIL, filed by Dr Nand Kishore Garg and Amit Sahni through their lawyer Shashank Deo Sudhi earlier this week, also sought appropriate directions to the Centre and others for removal of protesters from Shaheen Bagh near Kalindi Kunj. Sudhi had, on Monday, mentioned the matter before a three-judge Bench headed by CJI SA Bobde, who asked him to approach the registry for urgent listing of the matter.

The petition seeks appropriate direction to the respondents, including the Union of India (UOI) for laying down detailed, comprehensive and exhaustive guidelines relating to outright restrictions for holding protest/agitation leading to obstruction of the public place. It said that people in Shaheen Bagh are illegally protesting against the Citizenship Amendment Act (CAA) 2019, by blocking the common and public road connecting Delhi to Noida.

The Shaheen Bagh protest is an ongoing 24/7 sit-in protest, led by women, that began with the passage of the Citizenship (Amendment) Act, 2019 (CAA) which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.

Several petitions have been filed challenging the constitutional validity of the CAA. Earlier, on December 18, 2019, the 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ  had refused to stay the implementation of the Citizenship (Amendment) Act, 2019.


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019

Hot Off The PressNews

Supreme Court: The 3-judge bench of SA Bobde, CJ and SA Nazeer and Sanjiv Khanna, JJ refused to put a stay on the Citizenship (Amendment) Act, 2019 (CAA) and granted the Central government four weeks’ time to file a reply on the petitions challenging CAA. The Court also indicated setting up a Constitution Bench to hear the pleas.

The Court was hearing a batch of more than 140 petitions challenging or supporting the newly amended citizenship law that fast-tracks the process of granting citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who fled religious persecution in Afghanistan, Bangladesh and Pakistan and took refuge in India on or before December 31, 2014.

During the hearing, CJI said,

“We may ask the government to issue some temporary permits for the time being.”

Attorney General K K Venugopal asked the Court to freeze filing of further petitions, as over 140 petitions have been filed and others who wish to be heard, may file intervention applications. He said,

“Centre has prepared a preliminary affidavit that will be filed today.”

Senior advocate Vikas Singh, appearing for the Assam Advocates Association, sought an ex-parte order from the court with respect to the implementation of the Act in Assam. He told the court,

“The situation in Assam is different, 40,000 people have already entered Assam since the last hearing.”

Several petitions were filed in the top court and high courts across the country for and against the CAA. There have been protests in different parts of the country against the Act. It has also been challenged by the Kerala government in the Supreme Court. Kerala and West Bengal have also said that they will not implement the amended law. However, Congress leaders Kapil Sibal and Salman Khurshid have said that
state governments cannot legally refuse to implement a law passed by the parliament.

Earlier, on December 18, 2019, the 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ  had refused to stay the implementation of the Citizenship (Amendment) Act, 2019.


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019

Hot Off The PressNews

Supreme Court: Refusing urgent hearing on a plea seeking to declare the Citizenship Amendment Act as constitutional, CJI S A Bobde observed that the country is going through difficult times and there is so much violence going. Expressing surprise over the petition, the bench said that this was the first time that someone was seeking that an Act be declared as constitutional.

“There is so much of violence going on. The country is going through difficult times and the endeavour should be for peace. This court’s job is to determine validity of a law and not declare it as constitutional,”

The bench also comprising justices B R Gavai and Surya Kant said it will hear the petitions challenging validity of CAA when the violence stops.

The observation came after advocate Vineet Dhanda sought urgent listing of his plea to declare CAA as constitutional and a direction to all states for implementation of the Act. The plea has also sought action against activists, students and media houses for “spreading rumours”.

On December 18, the Supreme Court had agreed to examine the constitutional validity of the CAA, but refused to stay its operation. It said that it will hear the batch of 59 petitions on January 22, 2020.

The newly amended law seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.

Several petitions have been filed challenging the constitutional validity of the Act including by RJD leader Manoj Jha, Trinamool Congress MP Mahua Moitra and AIMIM leader Asaduddin Owaisi.

Several other petitioners include Muslim body Jamiat Ulama-i-Hind, All Assam Students Union (AASU), Peace Party, CPI, NGOs ‘Rihai Manch’ and Citizens Against Hate, advocate M L Sharma, and law students have also approached the apex court challenging the Act.

(Source: PTI)

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Vivek Varma, J. while addressing the present petition requested the National Human Rights Commission (NHRC) to have a complete inquiry or investigation due to the alleged violation of human rights and negligence in the prevention of such violation.

Alleged display of police brutality upon students who were protesting against the introduction of the Citizenship Amendment Act, 2019 is the reason for the filing of the present petition.

At Aligarh Muslim University a huge number of students assembled to share solidarity with the students of other Universities who were protesting against the above-stated Act. On the evening of December 15th, peaceful processions according to the petitioner was lodged at the Library canteen of the University.

A huge contingent of the police forces moved towards the University circle and provoked the students by different means including intentional utterance of abusive words. Students were heavily injured by the brutal lathi-charge, rubber bullets and pellets.

Further, the petitioner stated that to disburse the assembly of the students, the force was used by the State. The contingent of police forcefully entered in different parts of the University including the library, hostels, classrooms, offices, etc. and brutally behaved with students. Police officials intentionally assaulted the students and also vandalized the vehicles parked on the University campus.

It has also been alleged that a large number of students were detained and tortured then on 16-12-2019, University Registrar issued notices to vacate the hostels.

Counter affidavit filed by the Inspector General, Law & Order U.P. and Senior Superintendent of Police, Aligarh stated that the students in violation of the precautions as per Section 144 CrPC gathered at the University circle and when the authorities noticed the hindrance being caused by some of the students in their routine functioning, Registrar, Aligarh Muslim University requested the District Magistrate, Aligarh to take appropriate steps.

Registrar of the University had sent a letter to the District Magistrate requesting the deployment of security forces to prevent any untoward incident. District administration received certain intelligence inputs and also information from the Proctor of the University about the assembly of the students inside the University campus and their march towards Bab-e-Syed apprehending unwarranted incidents.

Gathering taking advantage of darkness started pelting stones vigorously from various directions and that enormously destroyed University property. Having no other option, the district administration decided to enter into University campus to disburse gathering and preventing the property from being damaged.

Additional Advocate General submitted that the above-said action was taken to prevent loss to public and public property at large. He also stated that in accordance with Article 19 of the Constitution of India, the right available is only to assemble peacefully without arms. But in the above incident, the assembly was absolutely unlawful and was abating for violence.

Senior Advocate, Sri Colin Gonsalves stated that the petitioner’s demand is to have a complete investigation as there is a violation of human rights and commission of cognizable crime. He also referred to the observations made in the Supreme Court Case in Extra Judicial Execution Victim Families Assn. v. Union of India, (2017) 8 SCC 417, wherein it was stated that,

“..inquiry or investigation by the National Human Rights Commission is of civil nature and that too is not an effective measure to bring the culprits of doing wrong to board.”

 

Decision

On perusal of the above-stated aspects, the High Court stated that, under the Protection of Human Rights Act, 1993 the Commission may inquire suo motu or on a petition relating to the students for violation of human rights or abatement thereof or negligence in the prevention of such violation by a public servant.

There has been alleged violation of human rights and also alleged negligence in the prevention of such violation. The narration of the facts certainly demands a probe.

Court on perusal of the powers of the NHRC stated that the entire matter is to be inquired by the Commission.

Inquiry by the State Human Rights Commission also but in light of the fact that the National Human Rights Commission is already undertaking inquiry relating to similar allegations on a complaint filed by the students and some faculty members of Jamia Milia Islamia University, the Bench considers it fit to have an inquiry in the present matter too by NHRC.

Commission has been requested to complete the inquiry within a period of one month and to convey its findings and recommendations, if any, to this Court immediately after the conclusion of the inquiry/investigation. [Mohd. Aman Khan v. Union of India, 2020 SCC OnLine All 1, decided on 07-01-2020]

Hot Off The PressNews

Supreme Court: The 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ has issued notice to Centre on a batch of pleas challenging the Citizenship (Amendment) Act, 2019. The Court has, however, refused to stay the implementation of the Citizenship (Amendment) Act, 2019. It said that it will hear the petitions on January 22, 2020.

Yesterday, the Court had refused to intervene in the incidents involving the violence taking place at the Jamia Milia University and the Aligarh Muslim University as an outcome of the passing of the Citizenship Amendment Act, the bench headed by CJI SA Bobde has asked the petitioners to approach the High Courts first. The Court said,

“We don’t want to spend time knowing facts, you should go to courts below first.”

The Court also said that since the incidents have taken place at various places, one inquiry cannot be ordered in these cases. Asking the petitioners to approach the High Courts, the Court said the High Court would not only be at liberty to pass orders on arrests and medical assistance, they will also be at liberty to order inquiries.


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019

Hot Off The PressNews

Supreme Court: Refusing to intervene in the incidents involving the violence taking place at the Jamia Milia University and the Aligarh Muslim University as an outcome of the passing of the Citizenship Amendment Act, the bench headed by CJI SA Bobde has asked the petitioners to approach the High Courts first. The Court said,

“We don’t want to spend time knowing facts, you should go to courts below first.”

In the hearing that escalated into a high voltage court room drama, Indira Jaising appearing for the students said,

“It’s established law that universities are not a place where police can enter without permission of VC. One person lost eyesight. Legs of some students were broken.”

Solicitor General Tushar Mehta was quick to respond that “not a single student lost eyesight.”

When the lawyers started arguing at high pitch, the Court took a strong noteand said,

“there should not be a shouting match just because there is large crowd and media.”

The Court also went on to ask how the buses burn during the protest. It said that it was a law & order problem.

Senior advocate Colin Gonsalves, appearing for protesters, urged the Court to send a former judge to AMU for fact finding. It was also argued that Police must have prior permission of VC of university before entering the University premises.

When the Court asked the Centre to give details as to why notices were not given to protesters before arrest and whether medical assistance was given, the Solicitor General responded that no student was in jail and that the police took the injured students to hospitals.

The Court said that the injured students must get medical attention and if anybody commits offence then police is free to arrest.

The Court also said that since the incidents have taken place at various places, one inquiry cannot be ordered in these cases. Asking the petitioners to approach the High Courts, the Court said the High Court would not only be at liberty to pass orders on arrests and medical assistance, they will also be at liberty to order inquiries.

Yesterday, when a battery of senior lawyers including India Jaising, Colin Gonsalves, Salman Khurshid, etc approached the Court to take the Court to take suo moto cognizance of the violence taking place at the Jamia Milia University and the Aligarh Muslim University as an outcome of the passing of the Citizenship Amendment Act, a bench headed by CJI Bobde said that it would hear the matter with a ‘cool mind’ tomorrow but the rioting must stop.

(Source: PTI)


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019

Hot Off The PressNews

Supreme Court: When a battery of senior lawyers including India Jaising, Colin Gonsalves, Salman Khurshid, etc approached the Court to take the Court to take suo moto cognizance of the violence taking place at the Jamia Milia University and the Aligarh Muslim University as an outcome of the passing of the Citizenship Amendment Act, a bench headed by CJI Bobde said that it would hear the matter with a ‘cool mind’ tomorrow but the rioting must stop.

Taking strong note of damage of public property and rioting during the Jamia Milia protest in which around 50 students were detained last night and later released, the Court said,

“We are not against peaceful demonstrations but we can’t allow people to go on streets, indulge in rioting.”

Stating that the Court was experienced enough to understand how rioting takes place, the Court said that it can’t be bullied to take cognizance of a matter just because people were throwing stones outside.

“We will determine the rights but not in the atmosphere of riots, let all of this stop and then we will take suo motu cognizance.”


**READ THE ACT HERE: Citizenship (Amendment) Act, 2019