Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted regular bail to activist Devangana Kalita and Natasha Narwal in the Delhi-Riots case.

Appellant’s who were arrested for participating in protests against the Citizenship Amendment Act, 2019 and in custody since 29-05-2020, preferred the appeal under Section 21(4) of National Investigation Agency Act, 2008 impugning order of Special Court rejecting her bail application registered under provisions of Penal Code following to the addition of provisions of Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Why was Devangana Kalita & Natasha Narwal in custody? | State against Devangana Kalita & Natasha Narwal. Why?

Larger Conspiracy

State essentially alleged that the appellant’s as a part of women’s rights group called Pinjra Tod and other activistic groups participated in a ‘larger conspiracy’ to commit certain offences which led to violence and rioting in the North-East Delhi between 22-02-2020 and 26-02-2020.

Findings and Analysis

  • Purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the Court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge-sheet.
  • In Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39/2021, Court analysed the provisions engrafting ‘terrorist act’ and ‘conspiracy’ or ‘act preparatory’ to the commission of a terrorist act.
  • The phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences.
  • Right to Protest: Contours of legitimate protest have been explained in the Supreme Court decision of Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324. In the said decision it was expressed that: “legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, since people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated.”
  • In the charge-sheet, Court did not find any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA or an act of ‘raising funds’ to commit a terrorist act under Section 17 or an act of ‘conspiracy’ or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.
  • Bail Principles: The said principles were in detail discussed in the decision of Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39 of 2021, a brief reiteration of the same was done in the present matter.

Devangana Kalita | Conclusion

  1. Right to Protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of UAPA, unless ingredients of offences under Sections 15,17 and 18 of the UAPA are discernible from factual allegations.
  2. Shorn off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under Sections 15, 17 and/or 18 of the UAPA.
  3. It appeared that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity. If such blurring gains traction, democracy would be in peril.

Appellant in view of the above discussion was granted regular bail subject to conditions.[Devangana Kalita v. State, 2021 SCC OnLine Del 3255, decided on 15-06-2021]

Natasha Narwal | Conclusion

  1. No specific, particularised or definite act was attributed to the appellant, apart from the fact that she engaged herself in organising anti-CAA and anti-NRC protests when riots and violence broke out in certain parts of North-East Delhi.
  2. State cannot thwart grant bail merely by confusing issues.
  3. Opinion: Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, at worst were evidence that the appellant participated in organising protests, but no conclusion of a specific or particularised allegation that appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.

The Appellant was granted regular bail subject to conditions.

[Natasha Narwal v. State (NCT of Delhi), 2021 SCC OnLine Del 3254, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Adit S. Pujari, Ms. Tusharika Mattoo & Mr. Kunal Negi, Advocates.

For the Respondent: Mr. Amit Mahajan, Mr. Amit Prasad and Mr. Rajat Nair, SPPs for the State along with Mr. Dhruv Pande & Mr. Shantanu Sharma, Advocates.


Also Read:

Del HC | Crucial aspects of ‘Terrorist Act’ and Right to Protest | Everything about Asif Iqbal Bail Order

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V, J., addressed the instant petition alleging illegal and unorganised exercise of right to strike. The Bench stated,

“In the guise of a strike, the union leaders as well as the striking workers cannot resort to strong arm tactics and violence to intimidate and force the management to succumb to their demands.”

The petitioner, Bharat Serum Vaccines Ltd., was a company engaged in manufacturing and marketing pharmaceutical and lifesaving products. Though their Regional Office was situated at Ernakulam, the company had business interest in all districts in the State of Kerala. In October, 2020, on account of administrative reasons as well as business exigencies, the petitioners had to redeploy their Territory Branch Managers to other parts of the country. The petitioner submitted that the service conditions clearly stated that the employees were transferable, the transfer being an incidence of service. Though most of the employees accepted the transfer and joined the respective stations, the respondents had refused to oblige.

The petitioners contended that the respondents, with aid of Kerala Medical and Sales Representatives Association, caused obstruction to the managerial staff, Regional Business Managers and Sales Representatives in carrying on their business. The petitioners further submitted that on 23-11-2020, the Regional Business Manager was obstructed while he was discharging his duty along with one Aneesh. Moreover,

The Union had raised an open threat that the petitioners would not be permitted to carry on their business activities in the State unless their demands were met with.  Threats were also made that the entire business of the petitioners will be brought to a standstill.

In spite of several complains no assistance was rendered by the police and the party respondents were having a field day intimidating and threatening the employees of the petitioners and disrupting their business.

The Bench, after considering above mentioned facts stated that there could not be any doubt that the workers had right to resort to strike or dharna to effectively bargain with the management and to ensure that unfair labour practices were avoided. However, in the guise of a strike, the union leaders as well as the striking workers could not resort to strong arm tactics and violence to intimidate and force the management to succumb to their demands. The Court expressed, even if the demand was legitimate if the management for one reason or the other did not accede to their demand, the only option was to resolve the dispute in a manner known to law,

Under no circumstances can the respondents resort to violence to further their cause. That would infringe the rights of the petitioners to carry on their business.

 In the light of above, the instant petition was disposed of with the direction to the petitioners to approach the jurisdictional police station, if any threat or intimidatory tactics is adopted by respondents and the officer concerned was directed to enquire the same and take appropriate action.[Bharat Serum Vaccines Ltd. v. State of Kerala, WP(C). No. 29084 of 2020, decided on 15-02-2021]


Appearance before the Court by:

For the Petitioners: Adv. K.Praveen Kumar

For the Respondents: Adv. PP Thajudeen


Kamini Sharma, Editorial Assistant has put this story together

Hot Off The PressNews

Over 140 advocates have signed a letter addressed to the Chief Justice of India, asking the Court to take suo moto cognizance to suspend the order of the Ministry of Home Affairs dated 31.01.2021 imposing internet shutdown in and around the protest venues and directing it to restrain from imposing further Internet shutdowns at the protest sites and adjoining areas.

The “open letter” written by advocates Sitwat Nabi and Abhisht Hela and signed by 141 advocates, further seeks setting up of a Commission of Enquiry under the guidance of the Chief Justice of India, to probe into:

  • Police inaction in controlling the violence and the role of the Delhi Police in allegedly facilitating the mob attack on 29 January, 2021 and failing to ensure peace and security.
  • Action against the 200 local hoodlums who, as reports state, had engaged in the manhandling of protestors, and journalists at the Singhu Protest venue.
  • Strict action against the journalists and the news channels who are spreading provocative content and fake rumors about the farmers and their protest.

The 6 pages has been written in the light of ongoing the Farmers protest since the past sixty-four days at the three protest venues with Singhu Border being its focal point alongside Tikri and Ghazipur Border.

Here are the “unfortunate events” highlighted in the letter:

  • On 26th January, 2021, there was a clash between the farmer protestors and the Delhi police.
  • On 29th January, 2021, around 200 men claiming to be local residents barged into the protest site at Singhu Border to vacate the area as has been reported by Hindustan Times and several other online and print media. They pelted stones, damaged properties, and attacked the protestors (men, women, elderly- no bar) despite the presence of heavy security of the police. As an outcome, 44 people were arrested, and various criminal cases including an attempt to murder being registered in Alipur police station.
  • On 29th January, 2021, the Home Ministry ordered internet shutdown from 11pm 29.01.2021 till 11pm- 31.01.2021 (First Order of shutdown) which eventually got extended by the order dated 31.01.2021.
  • Since 1st February 2021, the government has turned the protest sites especially the Delhi-Ghazipur border into a fortress where it seems like they are waging war against their own men. Embedding more than 2000 iron nails, multi-layer metal barricades, cement walls, and heavily armed security officials- these cannot be considered as law-and-order situations.

Stating that the suspension of internet order issued by the MHA is a gross misuse of power by the Central government and is causing disruption to the protestors and individuals in exercising their fundamental conferred under Article 19 (1) (a), the letter mentions that it’s been 6 days since the internet services have been suspended in and around the protest venues and its adjoining and hence, farmers are rightly convinced that their voices are being shunned down and only one-sided narrative of the government is being pushed forward, which is a clear attack on the fundamental values of the Constitution.

“Theoretically, the Right to Internet access exists in the “new India”, however, practically we are still thriving in the dungeon of the past where the demand for existence of the Right to Internet access should label us non compos mentis.”

It further states that the plight of the farmers is worsening because of the biased reporting by few mainstream media channels and that labeling farmers as “terrorists” by the mainstream media and airing provocative content is a pressing issue.

The letter highlights that there are claims of over 100 farmer protestors including minors who have been missing since 26th January 2021 as reported by various newspapers.

“In a situation like this, the internet shutdown is evidently causing disruption of communication and increasing the difficulty of thousands of families who are dependent on the Internet to have access to information on their respective family members who are missing or are in languishing in jails.”

Moreover, there are school students living across the border sites who are unable to attend classes virtually and working professionals who thrive on the internet while working- from-home in this pandemic situation, the regular citizen not having to do anything to do with the protest are ending up being deprived of their Fundamental rights.

Another argument against the Order issued by the MHA, is that it is bad in the eyes of law and will not hold water when put to test of ‘Wednesbury Principle’, i.e., Principle to test the Unreasonableness of the any legal document, which scratches the Fundamental Constitutional values.

The letter, hence, urges “to the sounding board of the Nation, guardian of human rights and key custodian of the justice delivery system to intervene and take active steps over the matter and strike down further such suspension of Telecom Services Order15 so that the freedom conferred to every individual as a fundamental right, under The Constitution of India can be protected and exercised freely.”


Read An open Letter to the Hon’ble Chief Justice of India

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 BriefsSupreme Court

Supreme Court: Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law.”

In order to bring about an effective solution to the present stalemate between the protesters and the Government of India, the Court suggested the constitution of a Committee comprising of independent and impartial persons including experts in the field of Agriculture but said that it would do so only after hearing all the necessary parties. The Court has, however, made clear that the pendency of the matters will not prevent the parties from resolving the issue amicably.

The Court is hearing the case wherein the residents of NCT of Delhi/Haryana, having a population of more than two million people, have claimed that the manner in which the protest is being carried on is seriously inhibiting the supply of essential goods to the city because of restrictions on the free movement of goods vehicles. According to the petitioners, this will result in a sharp increase in the prices of goods which would be difficult for people to bear in these times of Pandemic. They say,

“… no fundamental right is absolute and it would be necessary for the Court to determine the contours of the right of free speech and expression involved in the farmers’ protest and the extent to which this right can be exercised consistently with the rights of other citizens.”

The respondents, on the other hand, claim that the roads are blocked by the police in order to prevent the entries of the protesters/farmers to the city of Delhi.

Yesterday, the petitioners were allowed to serve copies of these petitions upon the impleaded farmers’ Associations and today the Court was to hear the farmers who are agitating at the Borders of National Capital Region of Delhi. However, none of the impleaded respondents-farmers’ associations have appeared today though the petitioners claim to have informed them over their respective mobile/whatsapp numbers.

The Court will now take up the matter after winter vacation. The parties, however, liberty to move the Vacation Bench if necessary. On the next date of hearing, the parties have been asked to submit suggestions about the constitution of the Committee.

The farmers’ protest is mainly directed against the three 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.

Aforesaid laws are also under challenge before the Supreme Court.

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032, order dated 17.12.2020]


For Petitioners: K.Parameshwar, AOR

For Union of India: Attorney General K.K. Venugopal

For Punjab: Senior Advocate P. Chidambaram

For U.P.: Advocate Garima Prashad

For Bharatiya Kisan Union: Advocate A.P. Singh.

OP. ED.SCC Journal Section Archives

Introduction

The most notable anti-governmental protests have sparked across the streets of “Europe’s Last Dictatorship” as Belarusian citizens have been peacefully demonstrating against the allegedly manipulated August 2020 Presidential elections, rampant police brutality and the inhuman treatment meted out to the detainees by the State machinery. These protests have become one amongst many amplifying demonstrations that various establishments across the world are grappling with along side the constant threat of the coronavirus pandemic. The right to protest is the expression of the protester of showing dissent against the authority.

The United Nations Human Rights Committee, coincidentally at a propitious time, adopted General Comment No. 37 on Article 21 of the International Covenant on Civil and Political Rights1 (hereinafter, “Iccpr”) that enshrines the right to peaceful assembly. The general comment reinstated the responsibility of law enforcement State agencies to protect and enable these peaceful demonstrations2 and the non-usage of “indiscriminate use of firearms” except a minimal force to curb an escalated tension3. The UN Committee has thus held the right to protest, whether offline or online, as a vital human right4 well protected by the principles of international law, particularly the Iccpr and various other regional human rights conventions.

This article attempts to provide a comparative analysis with respect to the legal principle of the right to protest in two distinctive jurisdictions, India and Belarus as analogous agitations against the ruling dispensation have been observed in both the countries.

To read the full text of the article, click here.


Note: This article was first published in Practical Lawyer (2020) PL (HR) November 71. It has been reproduced with the kind permission of Eastern Book Company.

* BA LLB, 5th year and Student Coordinator

** BA LLB, 2nd-year Member, RGNUL, Centre for Advanced Studies in Human Rights (CASIHR)

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]