Law

Bombay HC Says Peaceful CAA Protesters Cannot Be Called Traitors, 'Anti-National'

The court granting permission for a demonstration, said a protest cannot be suppressed on the ground that people are agitating against the government.

New Delhi: The Bombay high court said that persons holding peaceful protests against a particular law cannot be termed as traitors or anti-nationals, granting permission to a few people to sit on an indefinite protest against the Citizenship (Amendment) Act (CAA) in Beed district.

The Aurangabad bench of the high court on Thursday noted that the petitioner and his companions only want to hold a peaceful agitation to show their protest. A division bench of Justices T.V. Nalavade and M.G. Sewlikar was hearing a petition filed by one Iftekhar Shaikh challenging a January 31, 2020 order passed by a magistrate and a January 21, 2020 order of the police refusing them permission to sit on an indefinite protest at Old Idgah Maidan in Majalgaon in Beed district against the CAA.

“This court wants to express that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law. It will be act of protest and only against the government for the reason of CAA,” the court said in its order.

The court’s observation on peaceful protesters comes at a time when many senior BJP leaders, including Union ministers, have termed anti-CAA demonstrators traitors. In the run up to the Delhi assembly elections, the BJP focused its attention on protest at Shaheen Bagh, with its communal rhetoric criticised by many.

Aurangabad bench of the Bombay high court.

The bench noted the orders passed by the magistrate and police were only because the petitioner and his companions wanted to agitate against CAA.

It said, presently, such agitations were going on everywhere and there was no whisper of agitations of other nature in this region. The bench held that orders passed by the magistrate and the police were illegal and needed to be quashed and set aside.

“We must keep in mind we are a democratic republic country and our Constitution has given us rule of law and not rule of majority. When such act (CAA) is made, some people may be of a particular religion like Muslims may feel that it is against their interest and such act needs to be opposed,” the bench said in its order.

It noted that it is the duty of the government to approach such persons, have talks with them and try to convince them.

Refers to Indian freedom struggle

The court also referred to the freedom struggle and the Khilafat Movement, observing that the movement was in solidarity with and support to the cause of Muslims of another country, even though no Indian Muslims were affected in seeking to preserve the authority of the Ottoman Sultan.

“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. We are fortunate that most people of this country still believe in non-violence,” the bench said.

“In the British period, our ancestors fought for freedom and also for human rights, and due to the philosophy behind the agitations, we created our Constitution. It can be said that it is unfortunate but the people are required to agitate against their own government now but only on that ground the agitation cannot be suppressed,” it added.

According to the Indian Express, the order said, “The submissions made show that there will be no question of disobedience of provisions of CAA by such agitation. This Court is expected to consider the right of such persons to start agitation in a peaceful way. This Court wants to express that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law. It will be an act of protest and only against the government for the reason of CAA.”

The court said one of the clauses of the order prevented “sloganeering, singing, beating drums”. “It can be said that though the order on face appears to be against everybody, in reality the order is against persons who want to agitate, to protest against the CAA. At present, such agitations are going on everywhere and there was no whisper of agitations of other nature in this region. Thus, it can be said that there was no fairness and the order was not made honestly,” it observed.

The court also praised the fact that people from all religions have joined the protest against the CAA, saying the support received by the ‘minority community’ shows that “we have achieved fraternity to a great extent”.

Other observations made by the court are:

“When we are considering a proceeding like the present one, we must keep in mind that we are a democratic republic country and our Constitution has given us rule of law and not rule of majority. When such an Act is made, some people, maybe of a particular religion like Muslims, may feel that it is against their interest and such Act needs to be opposed. It is a matter of their perception and belief and the Court cannot go into the merits of that perception or belief.

If the 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. That is the problem of a political government. In such cases, it is the duty of the Government to approach such persons, have talks with them and try to convince them.”

The court also observed that there is a need for the bureaucracy to be “sensitive” in matters of dissent and that it needs to receive proper training on human rights. “The bureaucracy needs to keep in mind that when citizens who believe that a particular Act is an attack on their rights which were achieved by the freedom struggle, and when it is against the provisions of the Constitution which people have given to themselves, they are bound to defend that right. If they are not allowed to do so, the possibility of use of force is always there and the result will be violence, chaos, disorder and ultimately the danger to the unity of this country,” the court said, according to the Indian Express.