Case BriefsDistrict Court

Sessions Court: Dharmendra Rana, ASJ-02 disposed of Disha A. Ravi’s application for grant of bail.

Applicant’s counsel submitted that the applicant/accused had been falsely arrested and was brought to New Delhi without obtaining any transit remand and remanded to police custody. FIR had been registered for the offences punishable under Sections 153, 153-A, 124-A Penal Code, 1860.

The investigating agency maliciously added allegations under Section 124A IPC in order to portray a minor offence which is punishable upto life imprisonment. Further it was added that the investigating agency maliciously sought to sensationalize the allegations by way of invoking phrases such as “global conspiracy” only with a view o cause tremendous prejudice to the applicant/accused.

As per the prosecutions’ case, the toolkit documents circulating on social media and accessed by the police were inter alia seditious, showing disaffection against the government; the said document was allegedly created by an organisation called “Poetic Justice Foundation”. It was also added that the statements made in the document were not merely statements, but allegedly incited violations of public order and certain alleged acts of public disorder in both India and abroad on 26-01-2021.

The applicant allegedly created and was part of a WhatsApp group that included persons who allegedly edited the toolkit and also communicated with other persons about the document.

It has also been alleged that the applicant was also a part of another WhatsApp group which she deleted and also shared the document with other persons including Greta Thunberg.

Issue:

Whether the applicant/accused Disha was merely involved in peaceful protest and dissent against the farm acts or she was actually involved in seditious activities under the guise of protesting against the said legislation?

 Bench while interpreting the word ‘Sedition’ under Section 124A of IPC, referred to the Supreme Court decision in Kedar Nath v. State of Bihar, AIR 1962 SC 955, wherein the Court dealt with the acts which are proscribed and have a tendency to cause ‘disaffection against India’.

Law proscribes only such activities would be intended, or have intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. ‘Violence’ seems to be the gravamen of the charge.

In the decision of Bombay High Court, Arun G. Gowli v. State of Maharashtra, 1998 Cr. LJ 4481 (Bombay) it was observed that conspiracy cannot be proved merely on the basis of inferences. Inferences have to be backed by evidence.

Bench analysed the material collected by the investigating agency to substantiate the allegations of the ‘Larger Conspiracy’.

  • Engagement with secessionist forces

ASG pointed out that a pro-Khalistani secessionist group namely the ‘Poetic Justice Foundation’ and people associated with it are directly linked with creation of the “Toolkit” document.

Adding to the above, it was also submitted that the applicant/accused alongwith founders of PJF used social media to peddle support for secessionist Khalistan narrative in the guise of Farmers Protest.

Opinion of the Bench

It is not mere engagement with persons of dubious credentials which is indictable rather it is the purpose of engagement which is relevant for the purpose of deciding culpability.

Any person with dubious credentials may interact with a number of persons during the course of his social intercourse. As long as the engagement/interaction remains within the four corners of law, people interacting with such persons, ignorantly, innocently or for that matter even fully conscious of their dubious credentials, cannot be painted with the same hue.

 Hence, Court decided that in the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on 26-01-2021 along with founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused, simply because she shared a platform with people, who have gathered to oppose the legislation.

 No evidence was brought to Court’s notice connecting the perpetrators of the violence on 26th January, 2021 with the said PJF or the applicant/accused.

  • Use of ‘Toolkit’

 It was added that in the main body of the ‘Toolkit’ there was a segment titled “Prior Action” which included Digital Strike through hashtags on 26th January, 2021 and Joining the Farmer’s march into Delhi and then back to the border.

Further, another part of the same document mentioned tasks such as disruption of India’s cultural heritage such as ‘Yoga’ and ‘Tea’ and targeting Indian embassies abroad.

Opinion of the Bench

Court opined on perusal of the ‘Toolkit’ that any call for any kind of violence was conspicuously absent in the same.

Citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies.

Bench also added that difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies.

While elaborating more with regard to a healthy democracy, Court added that an aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of healthy and vibrant democracy.

Freedom of Speech and Expression includes the right to seek a global audience.

A Citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the four corners of law and as such have access to an audience abroad.

Further, there was a mention with regard to hyperlinks in the toolkit by the ASG, the said links were with an intent to malign India abroad. Two such hyperlinks were analysed by the Court and nothing objectionable as found.

The imputations may be false, exaggerated or even with a mischievous intent but the same cannot be stigmatized being seditious unless they have tendency to foment violence.

  • Conduct of the applicant/accused

It was claimed that the applicant/accused created a WhatsApp group by the name of “Intl farmers strike” and added certain persons to the group.

Adding to the above, it was stated that she deleted the group chat from her phone in an attempt to destroy the crucial evidence linking her with the toolkit and PJF.

Also, it was submitted that, she tried her best to conceal her identity so that legal action could not be taken against her. It is further alleged that she gave a global audience to the secessionist elements by manipulating the support of international youth icon Ms Greta Thunberg.

Opinion of the Bench

Bench expressed that the creation of a WhatsApp group or being editor of an innocuous Toolkit is not an offence.

 Since, no link was found to be objectionable, mere deletion of the WhatsApp chat to destroy the evidence linking her with the toolkit and PJF became meaningless.

Nothing on record was found to suggest that the applicant accused subscribed to any secessionist idea.

Prosecution failed to point out how the applicant/accused gave a global audience to the ‘secessionist elements’.

Further, no evidence was brought to Court’s notice to support the allegation that violence took placed at the Indian Embassies pursuant to the sinister designs of the applicant/accused and her co-conspirators.

“…it is very difficult to collect evidence for the offence of conspiracy but I’m equally conscious of the fact that what is difficult to prove for the prosecution in the affirmative is virtually impossible for the defence to prove in the negative.” 

Bench stated that it is not aware of rule of law or prudence, that a person is mandatorily required to be detained in custody to be confronted with other co-accused persons.

Court added that the applicant accused is already reported to have been interrogated in police custody for almost about 5 days and placing further restraint upon her liberty on the basis of general and omnibus accusation would be neither logical or legal.

Hence, considering the scanty and sketchy evidence on record, Court opined that the applicant accused deserved to be released on bail subject to filing of personal bond of Rs 1 lakh with two sureties, subject to the following conditions:

  1. She shall continue to cooperate with the ongoing investigations and shall join the investigation as and when summoned by the IO;
  2. She shall not leave the country without the permission of the court;
  3. She shall scrupulously appear at each and every stage of the pro­ceedings before the Court concerned so as not to cause any obstruc­tion or delay to its progress.

[State v. Disha A. Ravi, Bail Application No. 420/2021, decided on 23-02-2021]


Advocates who appeared for the matter:

Sh. Irfan Ahmed, Ld. Addl. PP for State.
Sh. Abhinav Sekhri, Ld. counsel for applicant/accused.


Image Credits of Disha A. Ravi: ANI

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., addressed a matter wherein it was alleged that hunger strike during protest will be an offence under Section 309 of Penal Code, 1860.

Petitioner was detained at a Special Camp, Poonamallee, while a protest was being made by the petitioner and others by way of a hunger strike.

FIR came to be registered on the above occurrence under Section 309 of Penal Code, 1860 on the ground that there was an attempt to commit suicide.

Lower Court has taken cognizance of the final report in regard to the investigation conducted. The present petition was filed challenging the proceedings.

Analysis

Bench noted that two grounds were raised in the present petition. First being, if the allegations were taken as it is, no offence has been made out under Section 309 IPC. The second ground that was raised was that the offence under Section 309 IPC was punishable with a maximum imprisonment of one year.

Fir was registered in the year 2013 and the lower court took cognizance in the year 2016 and the same is barred under Section 468 CrPC.

Court observed that:

Mere fact that the petitioner has protested by sitting on hunger strike will not attract the offence under Section 309 IPC.

Adding to the above observation, Bench also stated that the lower court ought to have taken cognizance within a period of one year since the offence is punishable for a maximum period of one year. However, cognizance has been taken after nearly 3 years.

Hence, taking cognizance of the final report is barred by law.

Court allowed the criminal original petition in view of the above discussion.[P. Chandrakumar v. State, 2021 SCC OnLine Mad 710, decided on 15-02-2021]


Advocates who appeared before the Court:

For Petitioner : P. Pugalenthi

For Respondents: C.Raghavan, Government Advocate

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., stays the implementation of farms laws until further orders.

Three categories of petitions have been filed before the Court, all revolving around the validity or otherwise of three Farm Laws namely:

  • Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
  • Essential Commodities (Amendment) Act, 2020
  • Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

 Categories of Petitions

The first category of petitions challenges the constitutional validity of the farm laws. A petition under Article 32 challenging the validity of the Constitution (Third Amendment) Act, 1954 enabling the Central Government also to legislate on a subject which was otherwise in the State List has also been included within this category of petitions.

Another Category of petitions included the ones which support the farm laws on the ground that they are constitutionally valid and beneficial to the farmers.

The third category included the ones filed by individuals who are residents of the National Capital Territory of Delhi as well as the neighbouring States, claiming that the agitation by farmers in the peripheries of Delhi and the consequent blockade of roads/highway leading to Delhi, infringes the fundamental rights of other citizens to move freely throughout the territories of India and their right to carry on trade and business.

Negotiations

Further, the Bench noted that several rounds of negotiations took place, yet no solution seemed to be in sight and the on-ground situation is as follows:

  • Senior citizens, women and children are at the site, exposing themselves to serious health hazards posed by cold and COVID
  • A few deaths have taken place, though not out of any violence, but either out of illness or by way of suicide.

While applauding the Farmers for their peaceful protest, Court noted that it was pointed out that a few persons who did not belong to the farmer’s community also joined, with a view to show solidarity with the farmers.

A specific averment was made in an intervention application that an organization by name “Sikhs for Justice”, which has been banned for anti-India secessionist movement is financing the agitation. The said contention was also supported by the Attorney General.

Constitution of a Committee of Experts

Bench noticed that the negotiations between the farmers’ bodies and the government did not yield any results so far, therefore the constitution of a committee of experts in the field of agriculture to negotiate between the farmers’ bodies and Government of India may create a congenial atmosphere and improve the trust and confidence of the farmers.

Stay on implementation of Farm Laws

Court also opined that a stay of implementation of all the three farm laws may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.

Attorney General argued that none of the petitioners who have attacked the farm laws has pointed out any single provision which is detrimental to the farmers and that the laws enacted by Parliament cannot be stayed by this Court, especially when there is a presumption in favour of the constitutionality of legislation.

“…this Court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment.”

 Senior Counsel, P. Wilson representing one section of farmers from Tamil Nadu welcomed the proposal to stay the implementation of the Laws and the constitution of the Committee and stated that his client would go before the Committee.

Similarly, A.P. Singh Counsel appearing for the Bhartiya Kisan Union also submitted that the representatives of the Union will participate in the negotiations.

Insofar as the apprehension regarding MSP [Minimum Support Price] being done away with, it is submitted across the Bar that the same may not be dismantled. The learned Solicitor General also confirmed that there are inherent safeguards, in-built in the Farm Laws, for the protection of the land of the farmers and that it will be ensured that no farmer will lose his land.

Interim Order

(i) The implementation of the three farm laws 1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and (3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, shall stand stayed until further orders;

(ii) As a consequence, the Minimum Support Price System in existence before the enactment of the Farm Laws shall be maintained until further orders. In addition, the farmers’ landholdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws.

(iii) A Committee comprising of (1) Shri Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee; (2) Dr. Parmod Kumar Joshi, Agricultural Economist, Director for South Asia, International Food Policy Research Institute; (3) Shri Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and (4) Shri Anil Ghanwat, President, Shetkari Sanghatana, is constituted for the purpose of listening to the grievances of the farmers relating to the farm laws and the views of the Government and to make recommendations. This Committee shall be provided a place as well as Secretarial assistance at Delhi by the Government. All expenses for the Committee to hold sittings at Delhi or anywhere else shall be borne by the Central Government. The representatives of all the farmers’ bodies, whether they are holding a protest or not and whether they support or oppose the laws shall participate in the deliberations of the Committee and put forth their view points. The Committee shall, upon hearing the Government as well as the representatives of the farmers’ bodies, and other stakeholders, submit a report before this Court containing its recommendations. This shall be done within two months from the date of its first sitting. The first sitting shall be held within ten days from today.

While parting with the decision, the Court expressed that:

“While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmer’s bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”

Matter to be listed in 8 weeks. [Rakesh Vaishanv v. Union of India, 2021 SCC OnLine SC 18, decided on 12-01-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has refused to interfere with Allahabad High Court’s decision quashing Dr. Kafeel Khan’s detention.

The Court has, however, made clear that the observations in the judgment will not determine the outcome of the prosecution and that the criminal cases will be decided on their own merits.

After the Citizenship Amendment Act received President of India’s assent on December 12, 2019, which triggered protests across several parts of the country, Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On December 13, 2019, a criminal case was lodged against Dr. Khan under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. The offences under Section 153B, 109, 505(2) Indian Penal Code were added subsequently, and Dr. Khan was arrested on January 29, 2020.

Despite the release order by the Chief Judicial Magistrate, Aligarh dated February 10, 2020, Dr. Khan was neither released nor was produced before the Magistrate. Hence, another release order was issued on February 13, 2020.

However, on February 13, 2020 itself the District Magistrate passed an order to detain Dr. Khan in – accordance with National Security Act, 1980 after a request was made for the same by the Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh.

The Allahabad High Court, in its judgment dated 01.09.2020, calling the detention illegal, said,

“In absence of any material indicating that the detenue continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained. In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February, 2020 on account of the offending act attributed to the detenue of the date 12.12.2019. What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”

The High Court also noticed that the grounds for detention along with material were to be supplied to Dr. Khan in light of clause (5) of Article 22 of the Constitution of India enabling him to submit representation to the competent authorities at earliest. However, the material so given was a compact disk of the speech delivered by Dr. Kafeel Khan on December 12, 2019 at Bab-e-Syed gate of Aligarh Muslim University. No transcript of the speech was supplied to the detenue. The High Court hence observed,

“The non-supply of transcript would have been of no consequence, if a device would have been supplied to the detenue to play the compact disk. It is the position admitted that no such device was made available to the detenue.”

Further, noticing that the orders of extension were never served upon the detenue, the High Court concluded that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

It is pertinent to note that Dr. Kafeel Khan was also arrested in September, 2017 after an unfortunate incident resulted into the deaths of 50 children 2017 due to unexpected shortage in supply of liquid oxygen at the B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August. Dr. Khan was released on bail in April, 2018 by the Allahabad High Court.

[State of Uttar Pradesh v. Nuzhat Perween,  2020 SCC OnLine SC 1033, order dated 17.12.2020]

For Petitioner: Solicitor General Tushar Mehta

For Respondent: Senior Advocate Indira Jaising

Case BriefsForeign Courts

Supreme Court of The United States (SCOTUS): While deciding the instant petition for granting the writ of certiorari, wherein a question of constitutional importance vis-à-vis the theory of personal liability for violence during an activity protected by the First Amendment as adopted by the Court of Appeals for the Fifth Circuit, came before the Bench; it was held that since the claim and the issues at the heart of the dispute are not only exceptional but also novel, therefore the Fifth Circuit should not have ventured into an ‘uncertain area of Tort law, especially when it has implications for First Amendment Rights without seeking guidance from the Louisiana Supreme Court.

As per the facts, the petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest against shooting by a local police officer. The protesters occupied the highway in front of the police headquar­ters. As officers began making arrests to clear the highway, an unidentified individual threw a ‘piece of concrete or a sim­ilar rock-like object’ thereby striking respondent Officer Doe in the face. As a result of the hit, the Officer suffered from severe injuries and brain trauma.  Even though the attacker remained unidentified, Officer Doe sought to recover damages from the petitioner on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the theory as being barred by the First Amendment. However, the Fifth Circuit Court found that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a po­lice officer was a foreseeable effect of negligently directing a protest” onto the highway. According to the Fifth Circuit, the First Amendment imposes no bar­rier to tort liability so long as the rock-throwing incident was “one of the ‘consequences’ of ‘tortious activity,’ which itself was ‘authorized, directed, or ratified’ by Mckesson in violation of his duty of care”.

Perusing the facts and the rationale applied by the Fifth Circuit, the SCOTUS Bench observed that when violence occurs during activ­ity protected by the First Amendment, that provision man­dates “precision of regulation” with respect to “the grounds that may give rise to damages liability” as well as “the per­sons who may be held accountable for those damages.”

Noting the petitioner’s contention that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only associ­ation with him was attendance at the protest; the Bench observed that Fifth Circuit’s interpretation of state law is too uncertain a premise to address the ques­tion raised in the instant petition. The Court also noted that Louisiana Supreme Court Rules, La. Sup. Ct. Rule 12, §§1–2 (2019), provides an opportunity for the Federal Courts Appeals (on their own accord or on motion of a party) to seek guidance in the absence of clear controlling precedents in the decisions of the Louisiana Supreme Court. Though it is not obligatory for the Federal Courts of Appeals to do so, but in exceptional instances, certification is advisa­ble before addressing a constitutional issue.

Noting that the core dispute forming the basis of the instant petition is certainly an exceptional instance, therefore the Court of Appeals should have certified to the Louisiana Supreme Court the questions – (1) whether Mckesson could have breached a duty of care in organizing and leading the protest; and (2) whether Officer Doe has al­leged a particular risk within the scope of protection afforded by the duty, provided one exists. Furthermore, the Bench observed that the, “Conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that warnings against premature adjudication of constitutional questions bear heightened atten­tion when a federal court is asked to invalidate a State’s law”. The Court thus granted the writ of certiorari and remanded the case back to the Fifth Circuit for further proceedings which are to be conducted in consonance with the SCOTUS’ opinions.[DeRay Mckesson v. John Doe, No.19–1108, decided on 02-11-2020] ­


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsCOVID 19High Courts

Tripura High Court: Arindam Lodh, J.,  while terming the doctors as “frontline warriors”, directed the Investigating officer to conduct Test identification parade to ascertain the real offenders responsible for harassing a doctor.

Dr Sangita Chakrobarty was serving as District Health Officer, West Tripura, and was discharging her duties as, in-charge of distribution of COVID-19 patients. Five post-delivery mothers long with their new born babies, who were tested COVID-19 positive, were sent to a COVID Care Centre to ensure maximum safety and were kept under the surveillance of Dr Chakrobarty.

Some of the previously admitted older patients started protesting indiscriminately demanding that they would not allow entry of any new patients in the centre. The protests turned graver shortly and situation worsened. Dr Chakrobarty tried to calm down the protestors, however, they abused her, threw sexually coloured remarks, spat on her face and exhibited more of such uncivilised behaviour. Complaint against these patients was filed by the Director of Health Services, Government of Tripura.

The petitioner was one of the alleged protestors, and therefore, came before the High Court under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.

The counsel, Raju Datta, for petitioner argued that the name of the petitioner had not been transpired in the complaint, there was no accusation against him, and on this ground alone, the petitioner should be granted anticipatory bail. High Court raised a question before him, whether mere apprehension of arrest attracts the ingredients of Section 438 of CrPC to which Mr Datta, submitted that mere apprehension of an arrest does not attract the ingredients of Section 438 of CrPC for granting anticipatory bail.

Bench looked into the relevant sections of CrPC. and the Epidemic Diseases (Amendment) Ordinance, 2020, to consider the bail application. He further explained the importance of doctors in society and especially during the time of COVID-19 when doctors have become the “first-line defence of the country”.

Adding to the above, Court labelled the protest which took place as “detrimental to the sentiment, safety and security of the Doctors and the entire society of our nation as well as of this state.” Therefore, keeping in mind the objective of the latest Epidemic Ordinance, he directed the Investigating Officer to record the confessional statement of the victim and her supporting staff under Section 164(5) of the CrPC.

Bench directed the Investigating officer to arrange for Test Identification parade to identify the real offenders. [Karnajit De v. State of Tripura,  2020 SCC OnLine Tri 353, decided on 30-07-2020]

Hot Off The PressNews

India protests efforts to bring material change in Pakistan occupied territories and asks Pakistan to vacate them

India demarched senior Pakistan diplomat and lodged a strong protest to Pakistan against Supreme Court of Pakistan order on the so-called “Gilgit-Baltistan”.

It was clearly conveyed that the entire Union Territories of Jammu & Kashmir and Ladakh, including the areas of Gilgit and Baltistan, are an integral part of India by virtue of its fully legal and irrevocable accession. The Government of Pakistan or its judiciary has no locus standi on territories illegally and forcibly occupied by it. India completely rejects such actions and continued attempts to bring material changes in Pakistan occupied areas of the Indian territory of Jammu & Kashmir. Instead, Pakistan should immediately vacate all areas under its illegal occupation.

It was further conveyed that such actions can neither hide the illegal occupation of parts of Union Territories of Jammu & Kashmir and Ladakh by Pakistan nor the grave human rights violations, exploitation and denial of freedom to the people residing in Pakistan occupied territories for the past seven decades.

Government of India’s position in the matter is reflected in the resolution passed by the Parliament in 1994 by consensus.


Ministry of External Affairs

[Press Release dt. 04-05-2020]

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]