Arbitrary Use of Section 144 against Fundamental Rights: K'taka HC on Govt Move to Curb Anti-CAA Stir
Section 144 was imposed in Bengaluru in the backdrop of planned protests against the amended Citizenship Act by different organisations. The CJI has asked the state government to consider any fresh application for protest on merit within three days
File photo of anti-CAA protesters being detained in Bengaluru on Thursday.
Bengaluru: Chief Justice of the Karnataka High Court Abhay Oka on Friday told the state government to consider any fresh application for protest to be held by organisations or individuals on merits within three days from the date of application. The state must consider the rights of citizens as laid down by the Constitution, Justice Oka said.
He was passing orders on a bunch of petitions filed against the imposition of Section 144 of the Criminal Procedure Code (CrPC) from Thursday to Saturday by Bengaluru Police Commissioner Bhaskar Rao.
The restrictions were imposed on December 18 on the eve of a slew of protests that had been planned against the Citizenship Amendment Act by different organisations in the city.
“Though the order (imposing Section144 ) comes to end tomorrow, we make it clear this court will still go into the legality of it as it affects fundamental right; state given time till January 6 to respond," he said, adding that the directive to consider applications to allow protest is an interim relief.
Agreeing that the police commissioner's order for Section 144 is indeed a preventive measure, he said, “It has the effect of depriving citizens of fundamental rights, especially when prima facie we find what led to formation of opinion (the circumstances that led to the decision) is not reflected in the order.”
"So it is absolutely necessary that these petitions should be taken up for out-of-turn hearing... The issue whether permissions granted under state order can be revoked by a personal order will have to be taken up," the CJ said.
Earlier, Advocate General Prabhuling Navadgi had argued while the State is the custodian of fundamental rights, it also has a duty to take measures to maintain law and order.
He had told the court that the commissioner had received intelligence inputs about the possibility of anti-social elements participating in peaceful protests for which permission was granted (thus, causing disturbance.) He also cited the example of Mangalore where two persons had lost their lives in protest-related violence.
"The Mangalore incident has shaken us," he told the court adding that the intention was to prevent violence, and those organisations that wanted to rally in support of the CAA also were denied permission.
Petitioners argued that there had not been a single incident in Bengaluru and not even a threat perception.
Justice Oka asked the AG that when permission is legitimately granted after scrutiny, what is the meaning of following due process of law.
Citing cases that have set a precedent in the Supreme Court, the CJ said, "Well-settled laws of the apex court… that people have a democratic right to raise their voice and even to express resentment against government on any subject of social and national importance. State must not restrain but in fact encourage (dissent)."
“We must note here that these petitions are essentially filed for rights of citizens to conduct protest in a lawful manner. We are not concerned with the subject of protest. We are concerned with what undoubtedly curtails fundamental rights conferred on citizens," he said.
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