New Delhi: In the first recent decision of its kind, the Karnataka high court has ruled that the imposition of Section 144 in Bengaluru on December 18, meant to block anti-Citizenship (Amendment) Act protests, was illegal. The prohibitory order “does not stand the test of judicial scrutiny laid down by the apex court”, Bar and Bench quoted the judges as saying.
On December 18, 2019, multiple protests had been organised against the CAA and National Register of Citizens in Karnataka, similar to other parts of the country. The Bengaluru police commissioner, however, banned public assembly in the city that day, using Section 144 of the Code of Criminal Procedure.
The high court began hearing challenges to this decision on December 20. Multiple petitions were filed against the notification over the course of the hearing, including by Rajya Sabha MP Rajeev Gowda and Karnataka MLA Sowmya Reddy. The petitions wanted the state government’s order quashed.
According to LiveLaw, the high court referred to Supreme Court judgments in the Anuradha Bhasin case and In Re Ramlila Maidan to justify its conclusions. The bench was headed by Chief Justice Abhay S. Oka and comprised Justice Hemant Chandangoudar. The bench had originally comprised Chief Justice Oka and Justice Pradeep Singh Yerur when the matter came up for the first time. The judges had earlier said, according to the website:
“We are not concerned with the subject of the protests, our concern is about decision making process which undoubtedly curtails the fundamental rights. It is indeed a preventive measure. The preventive measure has effect of curtailing fundamental rights of citizens. Prima facie, the formation of opinion is not reflected in the order. Therefore these petitions be taken up for hearing at preliminary stage. Issue whether permission granted can be revoked by passing order under section 144 and that also without giving pre-post decision hearing will have to be gone into.”
The court reportedly asked the advocate general, who was representing the state, several questions about this decision, including why permission to protest was granted and then taken away overnight and whether the state could assume that all protests are a threat to public peace.
Police all over the country have been accused of misusing Section 144 at their own convenience. The Supreme Court too has noted this, and said in 2011, “Refusal and/or withdrawal of permission [for a public gathering/protest] should be for valid and exceptional reasons. The executive power, to cause a restriction on a constitutional right within the scope of Section 144 Cr.P.C., has to be used sparingly and very cautiously.”
Lawyer Sarim Naved wrote in The Wire about how the police have misused the section to justify violence:
“This is the real danger posed by Section 144. You have a body, namely the police, which is not trained or known for its restraint in the face of the disadvantaged. The consequences of the violation of Section 144 have to be legal, including prosecution for wilfully disobeying a public servant and for any other offences which may be committed.
“The imposition of an order under Section 144 does not grant authority to the police to become violent. The police can use violence to disperse an ‘unlawful assembly’ only if the situation warrants so. Otherwise, the procedure has to be the same as committing any offence under the IPC. File an FIR and prosecute.”