TWO judgments delivered by two High Courts have forthrightly upheld the fundamental right of citizens to protest.  The Aurangabad Bench of the Bombay High Court set aside an order by the additional district magistrate against allowing protests in Beed against the CAA.  The Karnataka High Court, two days earlier, held that the prohibitory orders under section 144 of the Criminal Procedure Code (CrPC) imposed by the Bengaluru police to prevent protests against the CAA were illegal.

These are two significant judgments at a time when sections of the higher judiciary and even the Supreme Court are seen to be lagging behind and failing to intervene to uphold constitutional rights. 

The judgment delivered by the Division Bench of Justices Nalawade and Sewlikar of the Aurangabad Bench of the Bombay High Court is an object lesson on how the fundamental rights of citizens to protest can be exercised in a peaceful and lawful fashion.  First of all, the court held that those protesting against the CAA “cannot be called as traitors, anti-nationals only because they want to oppose one law”. 

It said: “We need to remember the Constitutional and legal history when we consider the provisions of the Constitution”.  The court explained the freedom to protest in a historical perspective: “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 this date. We are fortunate that most of the people of this country still believe in non-violence. In the present matter also, the petitioners and companions want to agitate peacefully to show their protest”.

“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 allowed the petition of a resident of Beed, Iftekhar Shaikh, challenging the order of a police inspector refusing permission for an agitation based on an order by the additional district magistrate.

The judgment is an eloquent exposition of the fundamental rights of citizens enshrined in the constitution and their right to protest against any law passed by parliament.

The Karnataka High Court verdict is a blow against the indiscriminate use of section 144 of the CrPC, which has been used around the country to suppress peaceful protests against the CAA and the NRC. In Uttar Pradesh, for instance, the entire state was put under section 144 to suppress protests. 

In Bengaluru, the police had imposed prohibitory orders under this section on December 18. By this, the police cancelled permissions earlier granted to protestors to hold rallies in the city on December 19.  It may be recalled that many people, including noted historian Ramachandra Guha, were detained when they gathered to protest. The court noted that the decision of the Commissioner of Police to impose section 144 did not meet the test laid down by the law. It did not present any material facts and the police was making “an equivalence between protests and the possibility of trouble”. 

During the hearing, the chief justice who headed the bench had questioned how the state could conclude that every protest will disturb peace or how permissions granted for peaceful assembly could be cancelled overnight. 

These two judgments are like a breath of fresh air in an atmosphere where it seems the government has suborned all institutions to connive in the deprivation of the liberty of citizens.  Not a day passes without cases being filed against people who are opposing the government, or, expressing dissenting views in the social media.  The sedition clause, section 124A of the IPC, the Unlawful Activities Prevention Act (UAPA) and the National Security Act (NSA) have become weapons in the hands of the central government and the BJP state governments to persecute those who speak out against them. 

In the past few weeks, scores of sedition cases have been filed in various states.  The most shocking is the case where two women are charged – a head teacher and the mother of a nine-year old student – in Bidar for staging a school play against the CAA.  Sedition cases are routinely slapped for speeches against CAA or for criticising the Modi-Shah duo. 

The use of the sedition clause in the IPC to suppress dissent is patently illegal.  The CPI(M) has been demanding the scrapping of Section 124A from the IPC.  But, in the meantime, the Supreme Court should intervene to put a stop to the misuse of the sedition clause as per its own constitution bench guidelines in the Kedarnath case where only direct incitement of violence and threat to public order can justify the use of this clause. 

(February 19, 2020)