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 BriefsHigh Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., directed the State to remove from all Government portals and facebook sites of government institutions and departments the publications that are Anti Citizenship (Amendment) Act, 2019 and National Register of Citizens (NRC).

Court further asked the Eastern Railway and Southern-Eastern Railway to place reports with respect to actual details of loss caused to railway property and damages incurred therein. The reports will also contain a statement in regard to the action taken and the action to be taken for recovery of loss caused for such damages to the railway property.

The Bench decided to leave open the legal issue as to whether the State or the Government could issue such publications at State expense or using the government machinery.

Court also noted the Advocate General Kishore Datta’s response with respect restrictions on internet services, that the same have been lifted throughout the State and the publication material which is anti-CAA and NRC to be withdrawn from circulation.[Sri Surajit Saha v. State of W.B., 2019 SCC OnLine Cal 5228, decided on 23-12-2019]

Hot Off The PressNews

Jamia Milia Violence | Jamia Protest | Citizenship (Amendment) Act, 2019

Sunday evening on 15-12-2019 turned out to be full of fear and violence on the campus of Jamia Milia Islamia University when police forces entered the campus and used tear gas along with lathi-charge on students.

It has been reported that, the students were detained and taken to two of the police stations where for a few hours no lawers, activists, media persons or anyone was allowed to enter. Students were beaten in the libraries, hostels, everywhere.

Several came out in support of the Jamia Students.

As reported by NDTV, Protests swept campuses across the country against the police crackdown at Jamia Millia Islamia after Sunday evening’s violence over the new citizenship law.

The police, which used batons and teargas to contain the violence, later barged into the university and detained around 100 students. All the detained students were released around 3:30 am.

Delhi High Court’s take on the incident:

As reported by All India Radio, A bench of Chief Justice D N Patel and Justice C Hari Shankar declined to list the plea for urgent hearing, saying there was no urgency in the matter.

The plea sought judicial inquiry into the action taken by the police, including allegedly firing at the students.  It also seeks proper medical treatment and compensation for the injured students.

Law School NewsOthers

Today was a historic day at HNLU Raipur. The students have been protesting against the discriminatory and arbitrary rules of the institution for the past three days.

Today on the 3rd day of the protest, in order to look into the demands made by the students, the Chancellor of the University appointed Mr. Ravi Shankar Sharma the Principal Secretary, Government of Chhattisgarh, via notification as the Vice-Chancellor of the University. Mr Sharma would be discharging his duties as the Vice-Chancellor of the University, in addition to his present responsibilities as the Principal Secretary, Law and Legislative Affairs Department, Government of Chhattisgarh. After the appointment of the new VC took place, he came to the auditorium and accepted most of the demands orally and asked for 3 days’ time to make a decision on a few demands. He assured that all the demands will be taken care of.
The students have decided to continue the protest as long as all the demands are not accepted. The students have decided to attend the lectures and continue with the protest after the class hours. The appointment of new VC has come as a relief as we have an authority who is ready for a discussion and has already accepted most of our demands. We thank the students of NLSIU, NALSAR, NUJS, NLIU, NLU-J, and NLU-D for supporting us by releasing a solidarity statement.

Background: HNLU Raipur students had assembled overnight since 27th of August outside the college,  following the Chhattisgarh High Court’s ruling on 27-8-2018 in Dr Avinash Samal v. State of Chhattisgarh, that the 2014 extension of the Vice-Chancellor’s tenure had been made illegally as the recommendation for his extension was granted based on a statute that had not come into effect.

The students, employing the hashtag #HNLUkiAzaadi on social media, were calling for  the administration to “respect” the judgment of the Chhattisgarh High Court and “not allow Dr. Sukh Pal Singh to continue as the VC of the University, as his appointment has been found to be illegal”. The students of HNLU were also informed that the VC was contending appealing against the order. The Student Body Association of HNLU strongly opposes this appeal and wishes for Mr. Sukh Pal Singh to file his official resignation immediately. We also contend that henceforth, he has absolutely no power in relation to his previous duties as a Vice-Chancellor.

To view the list of demands, click HERE.

To follow the latest updates of Student Bar Association, HNLU on Facebook, click HERE.

Hot Off The PressNews

Supreme Court: The Division Bench comprising of AK Sikri and Ashok Bhushan JJ., in an order stated that ‘there cannot be any “blanket ban” on holding protests at Jantar Mantar and Boat Club in Delhi along with other parts of Central Delhi.

In an order by NGT in Varun Seth v. Police Commissioner, Delhi Police; 2017 SCC OnLine NGT 65, as reported, all the protests around Jantar Mantar area were banned due to rise in violation of the environmental laws, reason being the dharnas and protests taking place on the Jantar Mantar road.

The Supreme Court addressed the plea filed by an NGO seeking direction for the removal of ban for the said order by NGT. Therefore, Supreme Court by removing the ban directed the Delhi police to frame guidelines in this regard within a period of 2 weeks.

[Source: ANI]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal:  While directing the respondents to immediately stop all the activities of dharna, protest, agitations, assembling of people, public speeches, using of loud speakers, etc. at Jantar Mantar road, NGT  placed special emphasis on the adverse health affects from protests, especially on account of aggressive noise pollution.

NGT reiterated that the right to free speech and expression under Article 19 cannot encroach upon fundamental rights under Article 21,

“While one has a right to speech, others have a right to listen or decline to listen. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then such person is violating the right of others to a peaceful, comfortable and pollution-free life. Article 19 cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.”

The directions were passed by Judicial Member Justice RS Rathore with the assistance of Expert Member Dr. Satyawan Singh Garbyal.

Jantar Mantar had become a symbolic protest battle ground, although the place for such activities has already been earmarked at Ram Leela Miadan for creating a peaceful environment for the residents on the Jantra Mantar stretch. NGT noted there were specific executive/judicial orders for the use of an alternate site for such protests i.e. the Ram Leela Maidan. Whereas earlier, protests used to be held at the Ram Leela Maidan, gradually they began to shift to the Boat Club lawns near India Gate. An administrative order was also passed by the Delhi Police to shift venue to Jantar Mantar Road. This was deemed to be improper by the NGT.

NGT noted, “the place for such activities has already been earmarked at Ram Leela Maidan, for gathering of more than five thousand people. This would strike a balance between the rights of the people in respect of their freedom of speech and expression and that of all the residents of the Jantar Mantar road to live a peaceful, comfortable and pollution free life at their residences.”

NGT thus proceeded by giving the following directions to stop the protests related activities on the Jantar Mantar road:

1. Government of Delhi, NDMC and Police Commissioner, Delhi were asked immediately to stop all activities related to protests, agitations, assembling of people, etc, at Jantar Mantar road.

2. All the temporary structures, loud speaker were asked to be removed from the stretch of Jantar Mantar road.

3. NDMC was also asked to immediately remove the garbage lying on the same stretch of Jantar Mantar road.

4. All the protestors, agitators holding dharnas to be shifted to an alternative site at Ram leela Maidan, Ajmeri gate, forthwith.

5.All the above directions to be complied within a period of four weeks by subsequently filing respective compliance report before the Tribunal. [Varun Seth v. Police Commissioner, Delhi Police; 2017 SCC OnLine NGT 65, order dated 05.10.2017]